BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

The Authority has not upheld a complaint under the good taste and decency and other standards about comments on Magic Talk regarding the LynnMall terror incident. Host Stephen McIvor responded “well spoken” to a caller who praised police for their actions (killing the suspect) which saved the country money. While insensitive, the comments did not reach the threshold for regulatory intervention. The remaining standards either did not apply or were not breached.

Not Upheld: Good Taste and Decency, Children’s Interests, Violence, Law and Order

The broadcast

[1]  During Magic Talk at 7pm on 3 September 2021, Stephen McIvor discussed the LynnMall terror attack that had occurred that afternoon.

[2]  The host invited callers to ring the show, including with the following comments:

• ‘“Violent extremist attacked six innocent New Zealanders and was shot dead”. That is the topic of discussion today, and I'd love to hear your thoughts on what went down.’
• ‘So if you need some help, if you just need to talk to someone, you can call here just to get it off your chest and tell us what you went through today… Short, long, I really don't care.’
• ‘…what should we be doing now? What was your reaction when you heard about it? And now that you have a couple of hours, three hours to process it…Are you angry? Are you shocked? Are you weary of it all? What do you want to see change in our laws now when it comes to terrorism? Do we need to get tougher?’

[3]  Interaction with one caller was:

Pete:                Just a quick message, I'd just like to congratulate the New Zealand police force and their associates for the actions they took today. I think it saved the country a heap of money in court fees, keeping this guy in jail. And people like that don't deserve to live anyway. So I'd just like to congratulate the New Zealand police force.

McIvor:            All right, Pete. Well spoken. [read out show number] Norm, hello?

The complaint

[4]  David O’Hagan complained the broadcast breached the good taste and decency, children’s interests, violence, and law and order standards for reasons including:

• ‘While I do not condone at all the actions of the alleged terrorist, his [behaviour] does not give the right [to] the NZ police to murder him nor be congratulated for doing just that.’
• ‘I think it is despicable of both the caller and the presenter to condone the killing of a human being and totally dismiss the values of justice in the manner that was done, without any compassion or thought towards the suspect as a human being…’.
• The call lacked decency and was in bad taste. There was no sensitivity shown to the victims of the attack, including the officer involved.
• The call would have been traumatising for children to hear.
• The call condones police violence, whether or not it is justified. ‘The police should not kill people because they believe they have done something inhumane and suggesting or thanking them for doing something along this line is a major insult to both the police and community standards.’
• ‘When providing a platform for people to express views in a manner that is also publicly broadcasted there is an onus on [broadcasters] to ensure this is done in a manner that upholds public decency’.
• ‘[it is to the] detriment of common decency when these matters are broadcasted in a manner that leaves these views unchallenged or deemed an acceptable reaction to a tragedy.’
• ‘If the station does not have the ability to manage these views then they should not discuss topics that are highly emotive’.
• ‘This would be the same as if a caller expressed a view on matters such as white supremacy, torturing prisoners or any other human rights violation…These matters are not views that most people would view as legitimate opinions that can be expressed on a publicly broadcasted channel without being highly challenged and denounced.’
• The broadcaster is not excused from upholding the standards because they have a talkback radio format.
• The suggestion that the broadcast was a healthy group therapy session is ‘nonsensical’. It allowed a toxic view to be broadcast to emotionally vulnerable people, undermining the intentions of the broadcast.

The broadcaster’s response

[5]  MediaWorks Radio Ltd (MediaWorks) did not uphold the complaint for the following reasons:

• ‘The announcer’s response to the caller [“Well spoken”] was talking about how well the caller spoke on the radio, but even if that wasn't the case, the brief conversation did not fall outside of the audience expectation for talkback.’
• ‘Even if the announcer did agree with the caller’s point of view, talkback is an arena where there is an audience expectation for opinions to be shared, and as a result, the announcer’s opinion is not taken as prescriptive.’
• ‘Magic Talk is a talkback station that does not target children and therefore Standard 3 (Children’s Interests) does not apply.’
• ‘The function of talkback is to provide a platform where listeners and announcers can share their opinion. This is widely understood.’
• ‘[Listeners] would have understood that the full details and specifics of the incident were not available to the public at the time, and the lawfulness of the killing of the man by police would be a matter for authorities to decide at a later date.’
• ‘The announcer handled the topic and callers with sensitivity, and allowed callers to share their feelings and perspectives in a manner that was intended as a kind of catharsis, and did not advocate strongly for any one stance or perspective.’
• In context, ‘the announcer's comments would have been construed as opinion, would not have been considered incitement to violence and did not encourage any illegal behaviour.’

The relevant standards

[6]  We focused our consideration on the good taste and decency standard as this was the most relevant to the substance of the complaint. We deal with the remaining standards below at paragraph [16].

[7]  The good taste and decency standard¹ states current norms of good taste and decency should be maintained, consistent with the context of the programme and the wider context of the broadcast. It protects audience members from broadcasts likely to cause widespread undue offence or distress, or undermine widely shared community standards.

Our analysis

[8]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[9]  The right to freedom of expression is an important right in a democracy and it is our starting point when considering complaints. We weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified, in light of actual or potential harm caused.

[10]  We note the free and frank expression of opinions is an important aspect of the right to freedom of expression, and is fundamental to the operation of our democratic society. Talkback radio provides a forum for this exchange of opinions to occur.

Good taste and decency

[11]  The context in which content occurs and the wider context of the broadcast are relevant to assessing whether a broadcast has breached this standard.² We note first that the context of this broadcast was a talkback environment in the wake of an alleged terrorist incident. It included many callers and the host expressing opinions about the parties involved, who was at fault and what should happen next. Many callers were scared or angry.

[12]  We acknowledge the specific call complained about contained an insensitive view regarding police violence. However, the comments were brief, with the exchange between the caller and the host lasting around 30 seconds in a broadcast more than an hour long. Several other calls during the broadcast lasted 3 minutes or more.

[13]  The host’s reply ‘All right, Pete. Well spoken’ before moving on to the next caller, whilst a clumsy reaction, was not necessarily an endorsement of the insensitive views of the caller. It may have served as a way to thank the person for calling in and move on.

[14]  Other relevant contextual factors in this instance include:

• Stephen McIvor’s show on Magic Talk is a talkback programme.
• Magic Talk has an adult target audience, although it is broadcast during times children may be listening.
• Magic Talk is known for broadcasting strong, sometimes controversial opinions for the purpose of generating discussion and debate³ (although this does not give a broadcaster free rein, and conduct and comments will be considered on a case-by-case basis).
• Stephen McIvor made it clear that the broadcast was providing a platform for people to vent their feelings in relation to an alleged terror incident that had occurred hours before, and had little to say about the correctness of many different views, outside of pushing back against racist views.
• The host did not engage with or encourage the caller and did not ask them to expand on their views.
• Listeners expressed anger in regards to the offender, the law and the police, as well as support for the police during the broadcast.

[15]  The call was in line with what the target and likely audience of the broadcast would expect of the station and the programme,⁴ especially as it was talkback radio.⁵ Taking into account the opinionated environment of talkback radio and the expectation that it will provide a forum for robust and provocative debate and critique, the comments, while insensitive, did not reach the threshold necessary to justify regulatory intervention.

The remaining standards

[16]  The remaining standards either did not apply or were not breached for the following reasons:

a)  Children’s interests: The content was not outside audience expectations of the programme, or of this type of talkback broadcast.⁶ The programme was targeted at an adult audience, and was unlikely to interest children, even though the broadcast was during children’s normally accepted listening times, at 7pm.⁷ In any event, we consider the comments complained about were unlikely to adversely affect any children who happened to be listening.

b)  Violence: The violence standard rarely applies to radio⁸ and only where there is a description of or reference to violence.⁹ The comments complained about referred to the ‘actions’ of the police and did not (directly) reference the killing. Accordingly, they did not reach a threshold necessary to be upheld under this standard.

c)  Law and order: The broadcast did not actively promote serious antisocial or illegal behaviour.¹⁰ As noted above, the comment was brief and the host did not engage with it. On this basis the broadcast was not inconsistent with the maintenance of law and order.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
25 January 2022

Appendix

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

1  David O’Hagan’s formal complaint – 4 September 2021

2  O’Hagan’s initial referral to the Authority – 13 October 2021

3  MediaWorks’ initial decision – 25 October 2021

4  O’Hagan confirming referral to the Authority and further comments – 9 November 2021

5  MediaWorks providing comments on referral – 16 November 2021

6  O’Hagan’s reply to MediaWorks’ further comments – 30 November 2021

7  MediaWorks confirming no further comments – 30 November 2021

¹ Standard 1 of the Radio Code of Broadcasting Practice
² Guideline 1a
³ Marra and MediaWorks Radio Ltd, Decision No. 2019-023
⁴ Guideline 1a
⁵ Guideline 1c
⁶ Guideline 3b
⁷ Guidelines 3a
⁸ Guideline 4a
⁹ Guideline 4b
¹⁰ Guideline 5a