New Zealand Aids Foundation and CanWest RadioWorks Ltd - 2006-131
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- New Zealand Aids Foundation
ProgrammeRadio Live talkback
BroadcasterCanWest RadioWorks Ltd
Complaints under section 8(1)(a) of the Broadcasting Act 1989
Radio Live – (1) talkback host on 11 October criticised New Zealand Aids Foundation for what he regarded as its promotion of the gay lifestyle – allegedly denigratory, unbalanced and unfair
(2) talkback host on 12 October expressed dislike for most gay men – allegedly denigratory, unbalanced and unfair
Findings (both 11 and 12 October broadcasts)
Principle 4 (balance) – exchanges did not amount to discussions about a controversial of public importance – not upheld
Principle 5 (fairness) – no obligation to give the NZAF a right of reply taking into account brevity of throw-away comments made by talkback host – not upheld
Principle 7 and guideline 7a (denigration) – threshold not met – not upheld
This headnote does not form part of the decision.
 The New Zealand Aids Foundation (NZAF) was referred to critically on a Radio Live talkback session broadcast between midday and 3.00pm on 11 October 2006, hosted by John Tamihere and Willie Jackson. Discussing NZAF’s use of taxpayer money to send health promoters to Wellington for the transsexual entertainer Carmen’s 70th birthday at Parliament, John Tamihere said that he accepted the NZAF’s role in dealing with HIV/AIDS but criticised its current focus on promoting the “gay lifestyle”.
 The following day, 12 October 2006, at the same time, Mr Tamihere referred on air to political reporter Lindsay Perigo as “one of the few gay guys I like”.
 The NZAF complained to CanWest RadioWorks Ltd, the broadcaster, about both broadcasts. The complaint also contained some detail about nine talkback sessions broadcast on Radio Live between 7 July and 13 September, mostly hosted by John Tamihere. During those broadcasts, the complainant wrote, the host had made negative comments about gay men and women and, on some occasions, the host had criticised the NZAF for acting as an advocate for gay people rather than confining its task to taking action on HIV/AIDS.
 The complainant also referred to its discussions with the management of Radio Live and CanWest Radio on 30 August 2006, during which it was agreed that if there was a major discussion about gay issues or the NZAF on Radio Live, the NZAF would be allowed a right of reply. However, it reported, the NZAF board chair had telephoned Radio Live at about 2.00pm on the day after the critical comments made on 11 October, identified himself and asked to be put on air. It said that the producer “point-blank refused to put him on air”. The producer maintained that the NZAF chair should have called at the time when the issue was being discussed.
 As for the comment about Lindsay Perigo on 12 October, NZAF acknowledged that, by itself, it was only the expression of an opinion. However:
… after four months of unbalanced broadcasting it confirms the ongoing encouragement for callers to denigrate New Zealanders on the grounds of their sexual orientation.
 The NZAF complained that the specific broadcasts nominated, along with the other broadcasts listed, were anti-gay rhetoric which breached the standards relating to denigration and balance.
 Stating explicitly that it was not trying to stifle freedom of speech, the NZAF contended that “free-speech” did not amount to a blanket excuse for the expression of extreme and repeated anti-gay rhetoric over an extended period which was encouraged by the host.
 Finally, the NZAF complained that some of the broadcasts listed breached the fairness standard as the hosts criticised the NZAF and other gay groups but did not provide a reasonable opportunity for a right of reply on air.
 CanWest assessed the complaints under the standards in the Radio Code of Broadcasting Practice nominated by the complainant. They provide:
In programmes and their presentation, broadcasters are required to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.
In programmes and their presentation, broadcasters are required to be socially responsible.
7a) Broadcasters will not portray people in a manner which encourages denigration of or discrimination against any section of the community on account of gender, race, age, disability, occupational status, sexual orientation; or as the consequence of legitimate expression of religious, cultural or political beliefs. This requirement does not extend to prevent the broadcast of material which is:
i) factual; or
ii) a genuine expression of serious comment, analysis or opinion, or
iii) by way of legitimate humour or satire.
Broadcaster's Response to the Complainant
 CanWest explained that the formal complaint process applied only to complaints received within 20 working days of a broadcast. Accordingly, it had confined its consideration to the complaints about the broadcasts on 11 and 12 October.
 CanWest then pointed out that Principle 4 (balance) applied only to broadcasts which dealt with controversial issues of public importance, and it contended that the principle was not applicable to the broadcasts on 11 and 12 October as such an issue was not being discussed.
 Turning to Principle 5 (fairness), CanWest stated that the right of reply applied only when a controversial issue of public importance was covered. As the broadcasts included expressions of listeners’ and hosts’ views, but was not a prepared programme focusing on the work of the NZAF, CanWest stated that fairness did not require the contact sought by the complainant.
 As for the Guideline 7a complaint, CanWest noted that one host believed that the NZAF should focus its activities on HIV/AIDS, and should not encourage a gay lifestyle. Radio Live, it added, did not have a policy on the matter and other hosts held different views. None of the specific host’s comments, CanWest wrote, amounted to extreme speech necessary to amount to denigration. It declined to uphold that part of the complaint.
 CanWest argued that the complainant’s comment about the producer’s response when telephoned on 12 October did not raise an issue of broadcasting standards as the comments were not broadcast. In any event, it added, the producer was at the time dealing with a high-profile breaking story and it was inappropriate to put the NZAF board chair on air then.
 As for the comment about Lindsay Perigo broadcast on 12 October, CanWest maintained that the “light-hearted bantering remark” did not raise an issue of broadcasting standards as it did not “in any way” encourage the denigration of people on the grounds of their sexual orientation.
Referral to the Authority
 Dissatisfied with CanWest’s response, the NZAF referred its complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
 The NZAF considered that CanWest’s refusal to take into account the previous broadcasts meant that it was following the letter of the Broadcasting Code rather than its spirit. Further, it wrote, in a broadcast on 8 November, the same host attacked the NZAF for having made a formal complaint and made derogatory remarks about its staff. It commented:
NZAF is extremely concerned that engaging in the formal broadcasting complaints process has resulted in an escalation of attacks on us.
 The letter included a transcript of some of the remarks made during the broadcast on 8 November and stated:
NZAF considers that to allow a broadcaster to continually make derogatory references to a specific complainant, and comment selectively on the specifics of a broadcasting standards complaint before the outcome has been decided is a gross and unreasonable undermining of the complaints process.
Broadcaster’s Response to the Authority
 CanWest noted that it had not received a formal complaint from the NZAF about the 8 November broadcast. As the NZAF’s referral to the Authority did not include any other material about the broadcasts on 11 and 12 October, it had nothing further to add.
 The members of the Authority have listened to a recording of the broadcasts complained about and have read the correspondence listed in the Appendix. The Authority determines the complaints without a formal hearing.
 The broadcasting complaints process is set out in the Broadcasting Act 1989 and includes a number of specific timelines. To initiate the process, formal complaints must be received by the broadcaster within 20 working days of the broadcast. Further, other than for complaints of a breach of privacy, formal complaints must be made initially to the broadcaster. In light of the statutory criteria, the Authority is required to confine its deliberations to the broadcasts on 11 and 12 October 2006. It has read the other information but has taken it into account only to the extent that it is relevant to the complaints within its jurisdiction.
Principle 7 and guideline 7a (denigration)
 The complainant’s prime concern is that the host’s comments on 11 October encouraged denigration of a group of people on account of their sexual orientation. The Authority’s approach to complaints which allege a breach of guideline 7a is explained in a Practice Note dated December 2006 which is published on its website.1
 The Authority has consistently defined denigration to mean the blackening of the reputation of a class of people. The use of this definition goes back at least as far as 1992, and has been followed in numerous subsequent decisions (see for example Decision No. 2005-112). Furthermore, the Authority has also consistently stated that in light of the right to free expression contained in s14 of the New Zealand Bill of Rights Act, a high threshold must be crossed before a breach of the standard will be found.
 The BSA has found that a broadcast encourages denigration when, among other things, it contains a high level of invective directed against a section of the community (see Decision No. 2004-193), or portrays a section of the community as inherently inferior, or as having inherent negative characteristics (Decision No. 2004-129).
 It has stated that comments will not breach the standard simply because they are critical of a particular group, because they offend people, or because they are rude. The Authority recognises that allowing the free and frank expression of a wide range of views is a necessary part of living in a democracy. It is only where the expression of these views goes too far that the guideline will be found to have been breached.
 The Authority considers that the host’s critical comments on 11 and 12 October did not contain the invective, vitriol or negativity necessary to amount to the denigration of gay people. It declines to uphold those complaints.
Principle 4 (balance)
 Principle 4 applies to radio broadcasts which discuss a controversial issue of public importance. While the talkback host, John Tamihere, expressed strong views that the NZAF should confine its activities to dealing with HIV/AIDS, the Authority does not accept that his comments on this occasion amounted to a discussion of a controversial issue of public importance to which a balancing perspective was required. The remarks were not part of a purportedly impartial commentary on the role of the NZAF or a discussion about gay lifestyles. Rather, it was an opinion put forward by the host by way of a throw-away observation. Accordingly, the Authority finds that Principle 4 (balance) does not apply to the complaints.
Principle 5 (fairness)
 NZAF listed a number of occasions in 2006 when John Tamihere, and one other host (Mark Bennett), had advanced their views that homosexuality was not normal, and that the role of the NZAF should be confined to action about HIV/AIDS. It contended that fairness required an opportunity for it to respond on air and, it wrote, that was the agreement it had reached with the management of Radio Live.
 The Authority does not agree that the comments broadcast on 11 October were such that, in fairness, the NZAF was entitled to a right of reply. The brief comments were made by John Tamihere in response to his co-host noting that the NZAF was using taxpayer money to send health promoters to Wellington for Carmen’s 70th birthday at Parliament. The exchange was not a serious discussion about gay issues or the NZAF. Similarly, John Tamihere’s throw-away comment broadcast on 12 October was not part of a discussion of the broader issues.
 The fairness standard does not oblige broadcasters to offer a right of reply to every negative comment that is made; that would be unworkable and an unreasonable fetter on the rights of hosts to voice their opinion on current issues. Accordingly, in light of the fact that the comments complained of were brief and not part of a wider discussion, the Authority considers that they did not breach Principle 5 (fairness).
For the above reasons, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
23 March 2007
The following correspondence was received and considered by the Authority when it determined this complaint:
1 New Zealand Aid Foundation’s complaints to CanWest RadioWorks Ltd – 30 October 2006
2 CanWest’s response to the complainant – 5 December 2006
3 NZFA’s referral to the Broadcasting Standards Authority – 5 December 2006
4 CanWest’s response the Authority – 8 February 2007