BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Newstalk ZB – talkback – reference to named Judge "jerking off at work" – bad taste – unbalanced – anti-male

Findings
Principle 1 – robust environment – no uphold

Principle 5 – reference to named Judge unfair – majority – uphold

Principle 7 and Guideline 7a – neither men nor judges denigrated – no uphold

No Order

This headnote does not form part of the decision.

Summary

[1] A High Court Judge who had viewed pornography on the Internet while at work was the subject of a talkback discussion on Newstalk ZB on 19 February 2002 at around 10.00pm. During the broadcast, the host made a reference to the Judge "jerking off at work".

[2] Dennis Pahl complained to The Radio Network Ltd, the broadcaster of Newstalk ZB, that the reference was anti-male, defamatory, in poor taste and showed a "demonstrable lack of balance" in the show.

[3] TRN declined to uphold the complaint, stating that the programme was a "robust opinionated talkback show" and that balance had been achieved through "a number of challenging calls". It also considered that the host had made an "honest attempt to ameliorate the … comment".

[4] Dissatisfied with TRN’s response, Mr Pahl referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, a majority of the Authority upholds the aspect of the complaint that item was unfair to a named person. It declines to uphold any other aspect.

Decision

[5] The members of the Authority have listened to a tape of part of the programme complained about and have read the correspondence listed in the Appendix. The Authority determines this complaint without a formal hearing.

The Programme

[6] A High Court Judge who had viewed pornography on the Internet while at work was the subject of a talkback discussion on Newstalk ZB on 19 February 2002 at around 10.00pm. During the broadcast, the host, Kerre Woodham, made a reference to the Judge "jerking off at work".

The Complaint

[7] Dennis Pahl complained to The Radio Network Ltd, the broadcaster of Newstalk ZB, that the reference was anti-male, defamatory, in poor taste and showed a "demonstrable lack of balance" in the show.

The Standards

[8] TRN assessed Mr Pahl’s complaint initially under Principle 7 of the Radio Code of Broadcasting Practice. The Principle and relevant Guidelines provide:

Principle 7

In programmes and their presentation, broadcasters are required to be socially responsible.

Guidelines

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.

TRN’s Response to the Complaint

[9] TRN disagreed with the complainant’s contention that the host was anti-male. It wrote:

… as she explains a number of times in the hour that you refer to, Kerre believes watching pornography is a male domain not female.

[10] TRN continued:

She had every right to express that opinion and as strongly as she wished. This is a robust, opinionated talkback show where strong views are expressed. Balance was also achieved with a number of challenging calls.

[11] In response to Mr Pahl’s comment about the host’s reference to the Judge "jerking off", TRN wrote:

The transcript goes along this line "if you think it is perfectly natural and normal for him to be jerking off at work, watching pornography at work… jerking around wasting time, then I’m going to respond".

While the "jerking off" comment may be inappropriate, I believe Kerre has quickly realised this and corrected herself to add the replacement "jerking around". The tape evidence shows an honest attempt to ameliorate the first comment.

[12] TRN declined to uphold the complaint.

The Complainant’s Referral to the Authority

[13] When Mr Pahl referred his complaint to the Authority he wrote:

It is absolutely clear that the Judge spoken about here is Judge Fisher.

It is equally clear that Kerre Woodham is saying that Judge Fisher is … masturbating at work. That has never been part of any reports anywhere at any time and unless she has more information than the general public she has now broadened the whole issue to allege that Justice Fisher has some sexual issues to deal with.

There was no statement by any earlier caller or anyone else in the media, that it is perfectly natural and normal for Justice Fisher to be jerking off at work … because no one has ever made such outlandish and unfounded allegations or even considered it was part of the matters concerning Justice Fisher. What he is alleged to have done is look at Internet porn/soft porn sites that he should not have looked at from a computer at the Courts with a further issue of whether he should have been doing so in work time. So Kerre has raised an issue as being one she will respond to strongly on that was never raised by anyone (but her it seems).

[14] Mr Pahl said that he considered Principles 1, 5 and 7 of the Radio Code had been breached. Principle 7 is set out above, and Principles 1 and 5 provide:

Principle 1
In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.

Guidelines

1a  Broadcasters will take into consideration current norms of decency and good taste in language and behaviour bearing in mind the context in which any language or behaviour occurs and the wider context of the broadcast eg time of day, target audience.

Principle 5
In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.

[15] In relation to Principle 7, Guideline 7a, Mr Pahl noted that the guideline seemed more related to sections of the community than against individuals. However, he contended that the broadcast portrayed Justice Fisher "personally in a manner which encourages discrimination against him as a Judge and by extension to Judges generally as an occupation group".

[16] Mr Pahl also contended that the broadcast had portrayed males as a group in a manner which encouraged discrimination against them on account of their gender, as he considered:

The conclusion from Kerre’s views as expressed on radio going out into the general public in a prime spot: that males are creeps and they do unnatural things.

[17] Mr Pahl continued:

It is time to put an end to such denigration with the Authority making it clear to broadcasters that permitting such an attitude against men is neither correct, nor desired by most men and women and not within the legal framework broadcasters have to comply with. Let the broadcasters, hosts etc keep their personal attitudes and beliefs to themselves on such matters because they certainly do offend me and I believe many other people in society.

[18] Mr Pahl then wrote:

There may be other principles involved, the Authority would pick these better than I can.

The Broadcaster’s Response to the Authority

[19] Noting that Mr Pahl had raised complaints under Principles 1, 5 and 7 of the Radio Code, TRN made the following comments:

Under Principle 1, it said that the host had clearly corrected herself, from "jerking off" to "jerking around" and that the "nuances of the tape" also revealed a clear intention to overcome the first statement.

Under Principle 5, it said Justice Fisher had exposed himself to ridicule by being exposed watching pornography during work hours. It added that all media outlets, not just talkback, had weighed up the pros and cons of his actions and many including talkback had been disparaging of him.

Under Principle 7, it rejected the argument that the host had been "male bashing", and said her comment had been "no more than legitimate comment and opinion".

[20] TRN submitted that the complaint should be rejected by the Authority.

The Authority’s Determination

[21] When it determines a complaint about whether a broadcast contravenes Principle 1 of the Radio Code, the Authority is required to determine whether the material complained about breaches currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant to but not determinative of whether the programme breached the Principle. Accordingly, in its determination of the Principle 1 aspect of the complaint, the Authority has considered the context of the comments complained about.

[22] In determining this aspect, the Authority notes that the comment was made at about 10.00pm during a talkback programme, which the Authority accepts is a robust and opinionated environment. Moreover, the host made an attempt to qualify the impact of the remark which, the broadcaster acknowledged, was probably inappropriate. Taking these contextual matters into account, the Authority concludes that the broadcast did not breach Principle 1.

[23] Taking into account, first, the Authority’s previous decisions which establish that a high degree of denigration against a section of the community on the grounds of gender and occupational status is required to contravene Guideline 7a and, second, that the host indulged in neither male bashing or judge bashing, the Authority also finds that the Principle 7 aspect was not breached.

[24] Principle 5 requires that people referred to are to be dealt with fairly. On this occasion, the comment arose from publicity given to the disclosure that Justice Fisher had been watching pornography at work. As a result, Justice Fisher had been the target of some disparaging remarks from callers on talkback, amongst others.

[25] If the host’s remark had been confined to criticism of the Judge’s viewing of pornography at work, the Authority would have not found the comment unfair. However, as TRN acknowledged, the comment actually made, which used the words "jerking off", was "inappropriate". TRN added that the host made "an honest attempt to ameliorate the first comment". The Authority is divided on the weight to be given to these matters in assessing whether there was a breach of Principle 5.

[26] A majority of the Authority (Mr Peter Cartwright and Mr Rodney Bryant) considers that the host made an inappropriate comment, which was unjustified and unfair. Accordingly, it upholds the Principle 5 aspect of the complaint.

[27] The minority (Professor Judy McGregor and Dr Bronwyn Hayward) disagrees. The minority acknowledges that the initial remark was inappropriate. However, given the matter’s high media profile and the immediacy of the presenter’s correction – from "jerking off" to "jerking around" – which had the effect of referring to time-wasting, the minority concludes that Principle 5 was not transgressed.

[28] The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. It is the clear intention of the Broadcasting Act to limit freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". The Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. In addition, for the reasons given in this decision, a majority of the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In coming to this conclusion, the majority has taken into account all the circumstances of these complaints, including the comments made about an identifiable person.

[29] For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion.

For the above reasons, a majority of the Authority upholds the complaint that a comment made on Newstalk ZB at about 10.00pm on 19 February 2002, broadcast by The Radio Network Ltd, breached Principle 5 of the Radio Code of Broadcasting Practice.

The Authority unanimously declines to uphold any other aspect.

[30] Having upheld a complaint, the Authority may make orders under ss13 and 16 of the Broadcasting Act 1989. On the basis that the breach was relatively minor and the presenter, having made the comment, promptly attempted to retrieve the situation, the Authority is of the opinion that no order is warranted.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
20 June 2002

Appendix

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

1. Dennis Pahl’s Formal Complaint to The Radio Network Ltd – 19 February 2002
2. TRN's Response to the Formal Complaint – 25 February 2002
3. Mr Pahl’s Referral to the Broadcasting Standards Authority – 13 March 2002
4. TRN’s Response to the Authority – 19 March 2002