Otago Casinos Ltd and The Radio Network Ltd - 2013-004
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Otago Casinos Ltd
BroadcasterThe Radio Network Ltd # 2
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Farming Show – host told anecdote about his experience at The Waterfront Bar & Bistro in Queenstown – claimed he was refused service after having a “couple of beers” and commented that it was “poor form” on the part of the bar – allegedly in breach of accuracy and fairness standards
Standard 6 (fairness) – host’s comments were inappropriate – host abused his position by allegedly threatening the bar staff with bad publicity and then following through by airing a personal grievance to enact revenge on a named business – business had no opportunity to defend itself – The Waterfront Bar & Bistro treated unfairly – upheld
This headnote does not form part of the decision.
 During the Farming Show, the host Jamie Mackay, told a short anecdote about his recent experience at The Waterfront Bar & Bistro in Queenstown. He said:
We went to this bar on Lasseters Wharf called The Waterfront Bar, and hello to the manager there, whose name I don’t know because I wasn’t there long enough to get a name. So we wander in there, four of us, right, looking for something to eat, farmers and me, all with their money in their wallets wanting to buy some dinner and have something to drink, and the bloke said, “What have you been up to?”, just as soon as we walked in, and before we could say anything else, he said, “Have you been on it?”… I said, “We have been at the Sevens and just had a couple of beers,” and he said, “I am afraid I can’t serve you”… So, The Waterfront Bar on Lasseters Wharf, it’s probably a lovely bar to go and have a drink, but make sure when you go there, you don’t have a drink before you go there, because you might not get served.
 Following the anecdote, the producer remarked, “There are two sides to every story, though.” Mr Mackay replied, “Well I am sticking by my story. I am absolutely sticking by my story… it’s interesting actually, there were a lot of people at the Sevens who probably wouldn’t have got a beer, it’s fair to say, at The Waterfront Bar, but I would have thought 50-somethings getting in after a few pints are not going to cause too much trouble.” The host and producer commented that it was “poor form” on the part of the bar. The programme was broadcast on Newstalk ZB between 12pm and 1pm on 14 January 2013.
 Otago Casinos Ltd, the owner of The Waterfront Bar & Bistro, made a formal complaint to The Radio Network Ltd (TRN), the broadcaster, alleging that the Mr Mackay’s comments were one-sided and a distortion of the original event. The complainant argued that it was inappropriate for a national radio announcer to use his position to air personal grievances. It raised the accuracy and fairness standards, though only the fairness complaint was referred to this Authority.
 The issue therefore is whether the programme breached the fairness standard (Standard 6) as set out in the Radio Code of Broadcasting Practice.
 The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Was the item, and specifically the host’s comments, unfair to the Waterfront Bar & Bistro?
 The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.
 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.1
 The complainant argued that the host’s comments were a distortion of the original event, and referred to security camera footage which showed Mr Mackay and his companions being refused service due to intoxication and aggressive behaviour. It maintained that Mr Mackay threatened bar staff with bad publicity, and carried out that threat on his radio show. The complainant said it was not given an opportunity to comment, which was unfair.
 TRN noted that the programme aired live and was not edited. It said that while it was not “ideal for hosts to use the radio to air their own personal grievances, they are encouraged to tell stories about things that happen to them in order to reflect ‘real life’ and build a greater bond with their audience”. The broadcaster contended it was not necessary or practical to inform every person or organisation referred to that they would be a topic of conversation. It asserted that Mr Mackay’s perspective was balanced by the producer saying there were “two sides to every story”.
 In assessing an alleged breach of broadcasting standards, we must give proper consideration to the right to freedom of expression. Any restriction on the right to free speech must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society.2 The starting point is to assess the value of the particular speech, and then to balance this against the potential harm that is likely to result from allowing the unfettered dissemination of that speech.
 We consider that there was minimal value in the host’s comments. The comments were unrelated to the Farming Show, and were, in our view, merely an opportunity for Mr Mackay to retaliate and vent about his experience at the bar. The question for us is whether the harm caused by the broadcast, if any, was of such a level that it outweighed the broadcaster’s and the host’s right to free speech. The harm alleged is damage to the reputation of the complainant’s business as a result of the host’s criticisms and in the absence of any balancing comment in response.
 Mr Mackay’s comments were, in our view, inappropriate. We accept that it is commonplace for radio hosts to tell personal anecdotes as a means of engaging with their audience. However we think that here there was an undertone of revenge, and that the host went too far by naming the bar. Had he simply told his story about an unnamed business, that would likely have been acceptable. Instead, he abused his position as the host of a radio programme in order to publicly criticise an identifiable business, to advance his own personal agenda. The complainant maintains that the host threatened the bar staff with bad publicity and then followed through on his radio show. The broadcaster has not disputed this apart from commenting that, “There are differing accounts of the events as they occurred.” If indeed the complainant’s version is correct, we think this behaviour took the broadcast even further beyond acceptable practice.
 We accept that Mr Mackay’s criticisms were to some extent moderated by the comment from his producer that there are “two sides to every story”, and we also think that most listeners would have suspected there was a legitimate reason – most likely intoxication – for the bar’s refusal to serve Mr Mackay and his companions. Nevertheless, due to the host’s naming of the bar, and the segment’s overall tone of negativity and criticism, we think there was real potential for the broadcast to have a detrimental impact on the bar’s business and commercial interests, and that this was unfair, particularly as the programme most likely has a niche audience which respects the host and his opinions. Further, the business was not in a position to defend itself, and while we accept it would be unusual for a broadcaster to inform anyone or obtain comment about a segment of this nature – that is, an informal anecdote unrelated to the programme – it meant that the business had no opportunity to respond or mitigate the criticisms levelled against it.
 For these reasons, we find that upholding the fairness complaint would be a reasonable and justified limit on the broadcaster’s right to freedom of expression. We are not saying it is unacceptable in all scenarios for hosts to tell personal stories and offer their views and experiences. In this instance the line was crossed when the complainant’s business was named, such that the host’s comments had the potential to negatively impact on its reputation. The right to broadcast material carries with it privileges and responsibilities, including reasonable consideration of anyone who might be affected by a broadcast. We think that Mr Mackay has abused this privilege and overlooked what was required of him as a responsible broadcaster.
 We therefore uphold the complaint that this broadcast was unfair in breach of Standard 6.
For the above reasons the Authority upholds the complaint that the broadcast by The Radio Network Ltd of the Farming Show on 14 January 2013 breached Standard 6 of the Radio Code of Broadcasting Practice.
 Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We think that in all the circumstances the publication of this decision is sufficient to remedy the breach, and that no order is warranted. This decision should serve as a reminder to the broadcaster and to the host that in the preparation and presentation of programmes, reasonable steps should be taken to ensure that professional standards are maintained and broadcasting standards are adhered to.
Signed for and on behalf of the Authority
7 May 2013
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Otago Casinos Ltd’s formal complaint – 22 January 2013
2 TRN’s response to the complaint – 24 January 2013
3 Otago Casino’s referral to the Authority – 11 February 2013
4 TRN’s response to the Authority – 12 February 2013
1Commerce Commission and TVWorks Ltd, Decision No. 2008-014
2See sections 5 and 14 of the New Zealand Bill of Rights Act 1990.