BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Michael Laws Talkback – criticised comments made by the Fire Service after a house fire in which four children died – called Fire Service spokespeople “cocks”, “idiots”, “morons”, “arseholes” – allegedly unfair

Findings
Standard 6 (fairness) – comments went beyond criticising firemen’s actions in professional capacity – sustained personal abuse of individuals – unfair – upheld  

Order
Section 13(1)(a) – broadcast of a statement

This headnote does not form part of the decision.

Broadcast

[1]  The Michael Laws Talkback programme was broadcast between 9am and 12 noon on Wednesday 7 January 2009. The host’s topic for the day was a house fire in Mangere in which four children had died and two adults were seriously injured. Mr Laws said he was “condemning” the New Zealand Fire Service for “insensitive” comments made following the incident by its spokespeople (Manukau Chief Fire Officer, Larry Cocker and Chief Executive/National Commander, Mike Hall) about the cause of the fire and how it might have been prevented.

[2]   Mr Laws made a number of comments critical of the Fire Service throughout the programme, including:

• “dickhead in a uniform”
  
  
• “I’ll find out who this idiot was”
  
  
• “inhumane comments”
  
  
• “Let’s use dead little Polynesian kiddies as a marketing tool, shall we?”
  
  
• “I actually think the Manukau Fire Chief Larry Cocker, you’re a cock. You’re an absolute idiot.”
  
  
• “contemptible individual”
  
  
• “What’s the matter with you two? Are you morons?”
  
  
• “[Larry Cocker has this] uniform mentality... He strikes me as a little strutting bantam with short legs.”
  
  
• “Jumping up and down on the graves of dead children – not even the graves they’re still in body bags – is just grossly inhumane.”
  
  
• “Resign, you loathsome individual.”
  
  
• “Larry Cocker. He only needs to remove the ‘er’ to describe his mentality.”
  
  
• “Larry Cocker, you’re a disgrace.”
  
  
• “They’re arseholes... They’re grossly insensitive. They’re inhumane.”
  
  
• “grossly insensitive idiots”
  
  
• “these two morons”
  
  
• “They’re not real firemen. They’re bureaucrats.”
  
  
• “There’s a bit of racism going on.”
  
  
• “This idiot, Mike Hall... He’s always been an idiot... He was an idiot over Guy Fawkes...”
  
  
• “You’ve got some prick in a uniform – and that’s the word that could only be used to describe these two – using you and your family to promote their particular party political message.”
  
  
• “This wouldn’t be happening if it was a middle class Pakeha family.”

[3]   Throughout the morning, callers phoned in, some in support of the host’s view, and others sympathetic towards the Fire Service.

Complaint

[4]   Scott Sargentina, on behalf of the New Zealand Fire Service, made a formal complaint to RadioWorks Ltd, the broadcaster, alleging that the programme had breached standards of good taste and decency, controversial issues, fairness and discrimination and denigration.

Background

[5]   By way of background information, Mr Sargentina explained that four children had been killed, and two adults seriously injured, in a house fire in Mangere on 6 January 2009. Fire investigators established that the fire was caused when one of the children left chips in a frying pan unattended, and the oil in the pan ignited. It was also discovered that no smoke alarms were installed, or if they were, they did not have working batteries.

[6]   Mr Sargentina said that the Chief Fire Officer of the Manukau Fire District, Larry Cocker, was interviewed throughout the day by the media as to the cause of the fire and how it could have been prevented. Once the cause of the fire had been determined, Mr Cocker, “as is required by Fire Service policy in incidents such as this, reiterated two of the Fire Service’s key fire safety messages: that people should never leave cooking unattended and they should always have working smoke alarms installed in their homes”. The Fire Service also issued a media release quoting National Commander, Mike Hall, which supported the comments made by Mr Cocker, the complainant said.

Complaint

[7]   Mr Sargentina noted that the following morning, Michael Laws “berated the Fire Service”, particularly Mr Cocker and Mr Hall, about their comments regarding the cause of the fire and how it could have been prevented. Mr Laws was outraged that the incident was used as an opportunity to promote fire safety, to make a “political statement” and to use “dead little Polynesian kiddies as a marketing tool”.

[8]   The Fire Service, the complainant said, accepted that people were entitled to express concerns over any comments made, and said it was willing to debate the issues or provide clarity regarding the relevance of its messages. Mr Sargentina wrote:

Tragedies such as the Mangere fire provide a powerful reminder to ALL New Zealanders as to why fire safety is so important and we make no apology for using this incident as an opportunity to articulate messages in order to prevent a repeat. The Fire Service has always had a very strong ethic around serving and protecting the community and our fire safety messages are an important and vital extension of this.

[9]   The Service was aware of the “colourful and colloquial nature” of Mr Laws’ show, Mr Sargentina said, and his “penchant for the controversial”. However, “leaving aside his ludicrous notion that if this incident had occurred in an affluent suburb and involved European New Zealanders we wouldn’t be making similar statements”, the Service was concerned enough about the language used to make a formal complaint that the fairness standard had been breached.

[10]   The complainant did not object to criticisms of the position the Fire Service had taken, as it was personal opinion. However, Mr Sargentina said, the Service objected to the “inflammatory language” used by Mr Laws in reference to the Service in general and specifically Mr Cocker and Mr Hall. He said “the use of this language added nothing to the debate and only served to demonstrate the sheer breadth of Mr Laws’ vocabulary and his obvious antipathy towards the Fire Service and its personnel”. The complainant considered the Service and Mr Cocker and Mr Hall had been treated unfairly by the comments.

[11]   The Fire Service also complained that the broadcast breached Standards 1 (good taste and decency), 4 (controversial issues) and 7 (discrimination and denigration).

Standards

[12]   Standard 6 of the Radio Code of Broadcasting Practice is relevant to the determination of this complaint. It provides:

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[13]   Looking at fairness, the broadcaster noted that talkback provides a forum for “strongly opinionated” comment usually led by the host taking a position on an issue. In that context, the Authority had identified what was or was not fair in terms of personal or general comments, it said. RadioWorks concluded that, while Mr Laws’ comments on this occasion “went close to crossing the line they did not in fact do so”. All of his scorn was directed at the comments made by employees of the Fire Service in their official capacity, it said, and was expressed in colloquial terms. RadioWorks considered that, in the context of a three-hour discussion in which callers both agreed and disagreed with Mr Laws, the comments did not cross the threshold of what was fair.

[14]   In terms of a right of reply, RadioWorks said, there was no requirement in talkback for the subject of a discussion to be provided with an invitation to contribute. This was not a situation where it was considered necessary to alert the fire department to the fact that public comments made by its representatives were being criticised. Given the degree of support the Service received from callers, RadioWorks was satisfied that the viewpoint of the Fire Service was clearly communicated to listeners, that being the view expressed in the formal complaint, that:

Tragedies such as the Mangere fire provide a powerful reminder to ALL New Zealanders as to why fire safety is so important and we make no apology for using this incident as an opportunity to articulate messages in order to prevent a repeat...

[15]   In those circumstances, RadioWorks declined to uphold the fairness complaint. It also concluded that Standards 1, 4 and 7 were not breached.

Referral to the Authority

[16]   Dissatisfied with RadioWorks’ response, the New Zealand Fire Service referred its complaint regarding Standard 6 (fairness) to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Authority's Determination

[17]   The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Unfairness to Mr Cocker and Mr Hall

[18]   Standard 6 (fairness) requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme. The complainant considered that Michael Laws’ comments personally attacked its spokespeople, Mr Cocker and Mr Hall, in a manner that was unacceptable and unfair.

[19]   In Decision No. 2008-108, regarding a similar complaint that Michael Laws had unfairly scrutinised the actions of a public figure, the Authority stated:

The Authority observes that the fairness standard does not prevent criticism of public figures. Indeed, it is an essential element of free speech that even the most trenchant criticism of public figures be allowed. ... The question for the Authority is whether that criticism overstepped the boundaries of fairness, that is, whether it strayed into abusively personal territory.

[20]   Decision No. 2008-108 concerned a broadcast in which Mr Laws had made comments critical of the Children’s Commissioner, Dr Cindy Kiro, and a report she and Barnados had released evaluating child poverty in New Zealand. Mr Laws had said that, among other things, the report was “a remarkable, remarkable cop out by the Children’s Commissioner”, “academically lazy”, “crap research”, and that it contained “specious, anti-academic blame-shifting”. Mr Laws considered that Dr Kiro “wouldn’t have a clue what real poverty looked like”.

[21]   In that case, the Authority concluded that Mr Laws’ comments were fundamentally linked to the report, the research, and Dr Kiro’s competency as Children’s Commissioner, rather than being personal comments aimed at Dr Kiro as an individual.

[22]   In the Authority’s view, the present situation is clearly distinguishable. Mr Laws’ remarks went beyond criticising the firemen’s actions in a professional capacity. The Authority considers that Mr Laws’ references to the men as “cocks”, “arseholes”, “idiots”, “morons”, “pricks”, “contemptible individuals”, and so on, constituted a sustained and personal attack on Mr Cocker and Mr Hall. Unlike criticism of the men’s professional actions, which could have been defended, name-calling and abuse such as this is unanswerable.

[23]   Accordingly, the Authority finds that RadioWorks treated Mr Cocker and Mr Hall unfairly. Having reached this conclusion, the Authority must consider whether to uphold this complaint as a breach of Standard 6.

[24]   In Decision No. 2008-014, the Authority determined that upholding a complaint under Standard 6 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 6 in the following terms:

One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.

[25]   The Authority must now consider whether it would be a reasonable and proportionate limit on RadioWorks’ freedom of expression to uphold a breach of Standard 6 on this occasion. The Authority has found above that the programme’s host made personally abusive remarks about the Fire Service’s two spokespeople, which went beyond fair criticism of their professional roles.

[26]   Upholding a breach of Standard 6 on this occasion would clearly promote the objective, outlined above, of protecting against unfair representation of a person’s character, and unwarranted harm to their personal dignity or reputation.

[27]   In these circumstances, the Authority finds that upholding the fairness complaint places a justified and reasonable limit on RadioWorks’ freedom of expression. Accordingly, it upholds the complaint that the broadcast of Michael Laws Talkback on 7 January 2009 breached Standard 6.

Unfairness to the Fire Service

[28]   The Authority finds that the Fire Service in general was not treated unfairly. The host was entitled to express his opinion about the Fire Service’s policies and the public statement it had made after the Mangere fire. His comments about those actions – that they were “inhumane” and “insensitive” – were strictly related to the professional actions of the Service, and were not abusive or unfair. Further, many callers supported the Fire Service’s position. Given this, and the nature of the programme – which was clearly based on the opinion of the host as well as those of the listeners – the Authority also considers that the broadcaster was not required to alert the Fire Service to the broadcast or specifically invite it to comment on air.

[29]   The Authority therefore declines to uphold the complaint that RadioWorks treated the Fire Service unfairly.

For the above reasons the Authority upholds the complaint that the broadcast by RadioWorks Ltd of Michael Laws Talkback on 7 January 2009 breached Standard 6 of the Radio Code of Broadcasting Practice.

[30]   Having upheld the complaint, the Authority may impose orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties. 

[31]   The complainant submitted that, while it was of the view that “sustained personal abuse of individuals” warranted an apology, a broadcast statement summarising the Authority’s decision would serve as sufficient penalty. However, it suggested that ordering the broadcaster to donate a day’s advertising revenue to a charity would send a stronger message.

[32]   RadioWorks said:

Given the publicity that the uphold will inevitably receive across all media we consider that publication of the decision itself will sufficiently inform the public of the outcome and enforce the message to the host that comments regarding individuals must be firmly based on a critical analysis of their work and not descend into name calling or personal ridicule. This is something that as an organisation we have worked to instil in talk hosts and this decision will once again reinforce that message. 

[33]   The Authority agrees with the complainant that it is appropriate to order RadioWorks to broadcast an approved statement summarising the Authority’s decision. It has ordered apologies only rarely and in exceptional circumstances, and it considers that a broadcast statement is sufficient in this case. The Authority does not have the power under the Broadcasting Act to order the donation suggested by the complainant.

[34]   The Authority considers that its exercise of powers on this occasion, in making this order, is consistent with the New Zealand Bill of Rights Act's requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

Order

Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders RadioWorks Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision
• be broadcast during Michael Laws Talkback, on a Wednesday at a time to be approved by the Authority
• contain a comprehensive summary of the Authority's decision.

The Authority draws the broadcaster's attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice in writing to the Authority and the complainant of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Joanne Morris
Chair
29 June 2009

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1.         New Zealand Fire Service’s formal complaint – 8 January 2009
2.         RadioWorks’ response to the complaint – 16 February 2009
3.         NZ Fire Service’s referral to the Authority – 27 February 2009
4.         RadioWorks’ response to the Authority – 20 March 2009
5.         NZ Fire Service’s submissions on orders – 3 June 2009
6.         RadioWorks’ submissions on orders – 26 June 2009