BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Leigh Pearson declared a conflict of interest and took no part in the deliberations.

Complaint under section 8(1) of the Broadcasting Act 1989
Prime Minister’s Hour – Prime Minister John Key hosted Radio Live for an hour – stated that it was an “election-free zone” – Mr Key interviewed Richie McCaw, Sir Richard Branson and Sir Peter Jackson – allegedly in breach of the Election Programmes Code

Findings
Standards E1 (election programmes subject to other Codes), E3 (denigration), and E4 (misleading programmes) – broadcast did not amount to an “election programme” for the purposes of the Broadcasting Act 1989 or the Election Programmes Code – in any event the nominated standards were not breached

This headnote does not form part of the decision. 

Introduction

[1]  Media Works broadcasts in New Zealand through two television stations and many more radio stations. One of its radio stations is Radio Live. This station has coverage across New Zealand. 

[2]  Radio Live reached an arrangement with the Prime Minister, John Key, for him to host a one hour live radio programme on 30 September 2011. The format of the programme had Mr Key acting as if he were a radio host. He gave comments about the weather, he interacted with music being played, he interviewed guests and he did all of the sorts of things that a radio host would typically do. Mr Key stated, early in the programme, that he was not going to discuss election issues. It is likely that the programme would have attracted a lot of listener interest on account of the unusual situation where a Prime Minister was playing radio host.

The Complaint

[3]  The New Zealand Labour Party has made a formal written complaint to this Authority. It says that:

• The programme was an “election programme” as defined in the Broadcasting Act 1989; and

• The Code of Broadcasting Practice in relation to election programmes was breached.

What is an “Election Programme”?

[4]  An “election programme” is defined in section 69 of the Broadcasting Act. The relevant part of the definition is as follows:

election programme means, subject to subsection (2), a programme that –

(a)   encourages or persuades or appears to encourage or persuade voters to vote for a political party or the election of any person at an election; or

(b)   encourages or persuades or appears to encourage or persuade voters not to vote for a political party or the election of any person at an election; or

(c)   advocates support for a candidate or for a political party; or

(d)   notifies meetings held or to be held in connection with an election

[5]  Labour considers that the very act of installing the Prime Minister as sole host of an hour long talk programme less than two months from the date of a general election would encourage people to vote for him. Labour considers that while the content of the programme may not overtly come within section 69, the presence of the Prime Minister in a programme of this kind would bring the programme within some parts of the definition in section 69. While Labour acknowledges that ordinarily, in the past, election programmes have been seen as being paid advertisements, it contends that this new type of programme is nevertheless within the definition.

[6]  Section 70(1) of the Act which is headed “Prohibition on paid election programmes” states:

Except as provided in subsections (2) and (2A), no broadcaster shall permit the broadcasting, within or outside an election period, of an election programme.

It is to be noted that while the heading to the section refers to a paid election programme the definition of election programme does not require that the programme be a paid programme. Section 70 imposes a qualifier on the expression election programmes in relation to payment. That qualifier is not repeated in subsection (1) itself, although in subsection (2) there are various references to election programmes which have been paid for.

[7]  It is our view that the legislature appeared to be envisaging that election programmes would usually be programmes of a paid advertisement kind but the definition of election programme does not limit such a programme to something that has been paid for.

[8]  Ordinarily, advertisements are not within our jurisdiction. If however a paid advertisement falls within the definition of an election programme it does come within our jurisdiction. The programme to which the present complaint relates was not a paid advertisement.

Consequences of a Broadcast being Categorised as an Election Programme

[9]  In terms of section 70 an election programme is not, subject to certain exceptions, permitted to be broadcast within or outside an election period. If such were to happen then the offences provisions in sections 80 and 80A of the Act apply. This Authority does not have any prosecutorial role, nor any determinative role in relation to prosecutions. The jurisdiction of this Authority is limited to broadcasting standards.

[10]  In terms of the Election Programmes Code of Broadcasting Practice, subject to a few exceptions, the relevant provisions of the Codes of Broadcasting Practice for television and radio apply to election programmes. The position which Labour is taking in relation to the present complaint is that this was an election programme and that a number of standards in the Election Programmes Code and the Radio Code have been breached.

Interpretation of the Definition of an Election Programme

[11]  The questions which this complaint raises include:

• Does a programme which does not directly through its content encourage, persuade, advocate or oppose a political outcome nevertheless come within section 69?
• Does section 69 encompass indirect incidental encouragement, persuasion, advocacy or opposition?
• Does section 69 limit the freedom of broadcasters to present or expose politicians in broadcasts, where there is no direct or overt encouragement, persuasion, advocacy or opposition?

[12]  We are satisfied that the intention of section 69 is to capture those programmes which overtly and directly encourage, persuade or advocate voters to vote for a particular party or a candidate, or which overtly and directly set voters against a particular political party or candidate. We consider that programmes which may in an incidental, resultant, secondary or consequential way amount to encouragement, persuasion, advocacy or opposition for or to a particular political outcome are not captured by section 69. We emphasise that the categorisation of a particular programme as one which offends section 69 and one which does not will always be heavily dependent upon the particular programme. We will now set out the reasons which have led us to the interpretation of section 69 which we have reached.

[13]  The words “encourage”, “persuade”, “advocate” or “oppose” are verbs which are associated with activity. They can be used to connote something which is passive but the usual flavour associated with the words is one involving activity. In the ordinary use of language in this particular context, we consider that the words have been used as active verbs.

[14]  Section 14 of the New Zealand Bill of Rights Act 1990 states:

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form. 

Section 5 states:

Subject to section 4, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 

Section 6 of that Act states:

Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.

[15]  The freedom to express oneself is a fundamental freedom. The freedom of people to express political views is a fundamental freedom of expression. We need to be very wary of constraining rights of expression including rights of expression in a political context. 

[16]  The Act, as already noted, has penal provisions in Sections 80 and 80A. These provisions apply not just to broadcasters but also potentially to others involved in any broadcast which does not comply. The penalties although only monetary, are towards the higher end of the scale. We are influenced by the commonly understood principle of statutory interpretation that penal provisions should be construed narrowly.

[17]  Here, the Prime Minister was engaged in the expression of information of a kind that was not directly political and he was also involved in a type of entertainment and personal interest programme.

[18]  If the legislature had intended to prohibit politicians from having any exposure in a broadcasting context of a kind that may encourage, or persuade voters, then we would have expected the definition of election programme to have been much more definitive. This is especially so where it is being used to limit important freedoms.

[19]  If the legislature had intended to prevent politicians from being presented or exposed in a broadcasting context when they are not accompanied by any direct political type statements, we would expect there to have been direct provision to such effect, rather than, at best, a possible interpretation to such effect. We recognise the difficulties in trying to achieve a workable limitation.

Was the Prime Minister’s Hour an Election Programme?

[20]  Having formed a clear view of the meaning of section 69, we have then moved to determine whether this particular programme was an election programme in terms of section 69. We have listened to the programme and we have considered the views of Labour, the Prime Minister’s department and the broadcaster. We have reached the conclusion that this particular programme did not come within the definition of an election programme as we have interpreted that definition.

[21]  Labour has argued that the very act of installing John Key as the host of the programme, and the “overall nature of the programme”, turned this broadcast into an election programme. What Labour is saying is that when a politician is exposed as such in a broadcast this amounts to encouragement or persuasion to vote for him or her or his or her party and to vote against opposing candidates or opposing political parties.

[22]  We do not believe that this is the type of encouragement, persuasion or opposition that section 69 contemplates. What appears to have happened here is that a commercial broadcaster has achieved the presence of a well known political figure. We do not believe that on this occasion the mere presence of the Prime Minister made the programme into an election programme. We can of course see that some political advantage will accrue to the Prime Minister and the party to which he belongs from exposures of this kind. It is not for us to say whether this should or should not be permitted; we are required to deal with the law as it stands. In our view, the law as it stands, and which produces consequences when election programmes are broadcast, does not apply to this particular programme. If a different outcome is seen as being desirable, then this is a matter for the legislature and not for us.

[23]  In reaching the conclusion that this programme did not actively encourage, persuade, advocate or oppose a political outcome we have also taken into account that it was expressly stated in the programme that election and political issues would not be spoken about or responded to (although, as we will observe later, this promise at the start of the programme was not fully kept).

[24]  We have considered the submission of Labour that the very act of noting that there is an election, and we presume the very statement of saying that election issues would not be addressed, has the effect of making those statements election or political statements. We disagree. We think that it goes too far to say that when somebody makes it clear that they will not discuss what can broadly be called political issues, this statement is a political statement. 

[25]  This programme was about an hour long. Labour has identified within it, some parts which it says have some political content. These are:

• comments about re-scheduling Coronation Street
• the broadcasting of listener feedback which was favourable to the Prime Minister
• a comment by the Prime Minister that he was “working for the nation”
• a discussion about the European economic situation and the Standard and Poors credit downgrade.

We consider that the Coronation Street comments, the listener feedback and the comment about “working for the nation” are the sorts of light flim-flam and frivolity that are to be expected on this type of entertainment show. We see these things as harmless and as not changing the character of the programme.

[26]  The comments about the European economic situation occurred at the beginning of the Prime Minister’s discussion with Sir Richard Branson. Mr Key casually remarked, “we see a lot of bad news coming out of Europe at the moment” and asked Sir Richard, “how do you see that playing out?” Sir Richard made brief comments about his take on the situation, before moving on to discuss his new “galactic travel” business taking tourists into space. In our view, references to the economic crisis could be expected in the context of a discussion between a radio host and a UK business leader who runs one of the biggest airlines in Europe.   

[27]  The comments about the credit downgrade came at the end of the programme. They arose when a regular radio host, Paul Henry, came to take over from the Prime Minister. Mr Henry engaged with the Prime Minister. Initially this was in a light-hearted way but then, briefly, the questions and comments put by Mr Henry attracted brief serious answers from the Prime Minister.

[28]  We have thought carefully about this and have reached the conclusion that neither did these comments or final moments effect a change of character of the programme. We consider that the programme, looked at objectively and in an overall way, remained one which was outside Section 69.

Consideration of Standards in the Election Programmes Code

[29]  Our finding on the first issue disposes of the complaint. We will nevertheless proceed to address what the consequences would have been in terms of broadcasting standards had this been an election programme.

[30]  If the programme is an election programme then it is, in terms of Standard E1, subject to all relevant provisions of the Codes of Broadcasting Practice for television and radio except for the requirement to present a range of significant viewpoints on issues of public importance. Standard E1 provides that robust debate, advocacy and expression of political opinion are a desirable and essential part of a democratic society and broadcasting standards will be applied in a manner which respects this context.

[31]  In relation to the other Codes of Broadcasting Practice which are imported in to the election programmes code, Labour has complained that the programme breached Standards 6 and 8 of the Radio Code in that it was unfair and the programme information and content was not socially responsible. 

[32]  Additionally, Labour has complained that the programme breached Standard E3 (denigration) and Standard E4 (misleading programmes) of the Election Programmes Code.

Standard E1 (Election programmes subject to other codes)

Fairness

[33]  The fairness standard requires that broadcasters should deal fairly with any person or organisation taking part or referred to. What is fair will depend upon the programme. 

[34]  Labour’s complaint in relation to fairness has several components. Labour says that a comment by a Radio Live host that “the Labour Party is furious that you [John Key] are on and they’re not” was unfair. In our view this sort of banter is to be expected on a programme of this kind broadcast in a robust talkback environment and it is unobjectionable.

[35]  Labour has also said that the broadcaster was unfair in not allowing Labour leader, Phil Goff, to host a similar programme. We note that the fairness standard applies only to individuals “taking part and referred to”, and that Mr Goff was not referred to during the broadcast. In any event, we do not think that there is any mandatory requirement for equal time to be given to the Leader of the Opposition – as the broadcaster has pointed out, the premise of the programme was that it was “the Prime Minister’s Hour” – and it was not therefore unfair of the broadcaster not to allow such time.

[36]  In an overall sense, we do not consider that this programme was unfair to the Labour Party in the sort of way that becomes objectionable in terms of broadcasting standards. Looking at things objectively we do not see any unfairness of the kind that requires us to intervene. This is particularly so when we have regard to concepts of freedom of expression and the New Zealand Bill of Rights Act.

Responsible Programming

[37]  Standard 8 of the Radio Code requires broadcasters to ensure that programme information and content is socially responsible. The guidelines to that standard refer to the protection of children, the broadcast of violent content, the use of warnings when programmes are likely to disturb, and a requirement that programmes are not presented in a way likely to cause alarm, panic or distress.

[38]  In our view, Labour’s concerns about the broadcast of the Prime Minister’s Hour do not raise the type of issues envisaged by Standard 8.   

Standard E3 (Denigration)

[39]  Standard E3 states that an election programme may not include material which denigrates a political party or candidate.

[40]  Labour argued that the comment by the Radio Live host that “the Labour Party is furious that you’re on and they’re not” denigrated the Labour Party because it suggested that the Party was unreasonable to expect to be given a similar opportunity.

[41]  The term “denigration” has consistently been defined by the Authority as blackening someone’s reputation. It is also well-established that in light of the requirements of the Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration.

[42]  In other words, in a broadcasting context denigration necessarily involves nasty or harsh invective. In our view, the comment to which Labour has referred does not approach the level of what we regard as denigratory invective.

Standard E4 (Misleading Programmes)

[43]  Standard E4 says that an election programme may not imitate an existing programme, format or identifiable personality in a manner which is likely to mislead.  In our view, the programme was clear and obvious in its presentation and content and we do not consider that listeners would have been misled in the manner envisaged by this standard.

Conclusion

[44]  Our opinion therefore is that even if this programme were held to be an election programme, which we do not consider it was, it would not have breached any of the standards raised by the complainant. As we have said, we can understand that Labour is not happy about this but it is another thing altogether to say that what has happened has breached broadcasting standards. We do not believe that it has.

Signed for and on behalf of the Authority

Peter Radich
Chair
14 October 2011

Appendix

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

1                  New Zealand Labour Party’s formal complaint to the Authority – 3 October 2011

2                 National Party’s response to the complaint – 5 October 2011

3                 Office of the Prime Minister’s response to the complaint – 5 October 2011

4                 RadioWorks’ response to the complaint – 11 October 2011

5                 New Zealand Labour Party’s final comments – 12 October 2011

6                 RadioWorks’ final comments – 12 October 2011