BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

During the talkback programme, Overnighter, host Garry McAlpine invited listeners to call in to discuss the issues facing New Zealand in 2018, one of which was the upcoming cannabis referendum. Mr McAlpine strongly expressed his view, throughout the programme, that cannabis should be decriminalised for medicinal and recreational use. A number of callers, including the complainant, expressed their views on the subject, with some supportive of, and others opposed to, Mr McAlpine’s views. The Authority did not uphold a complaint that this programme was in breach of broadcasting standards. Talkback radio is known for robust discussion, and broadcasting standards recognise that it is an opinionated environment, with hosts granted some latitude to be provocative and edgy in the interests of generating robust debate. This programme in particular featured genuine discussion on an important issue in New Zealand. As such, the harm alleged to have been caused by the complainant did not outweigh the host’s, or callers’, right to express their opinions as part of a talkback discussion about New Zealand’s future, even if some listeners might have disagreed or found those views distasteful.

Not Upheld: Accuracy, Balance, Law and Order, Good Taste and Decency, Fairness, Programme Information, Discrimination and Denigration  

Introduction

[1]  During the talkback programme, Overnighter, host Garry McAlpine invited listeners to call in to discuss the issues facing New Zealand in 2018. One of the topics for discussion was the upcoming cannabis referendum. Mr McAlpine strongly expressed his view, throughout the programme, that cannabis was relatively harmless and should be decriminalised for medicinal and recreational use.

[2]  A number of callers expressed their views on the subject, with some supportive of, and others opposed to, Mr McAlpine’s views. This topic occupied the discussion for most of the programme, with some callers also discussing mental health issues and New Zealand’s high suicide rates.

[3]  James Parlane, who phoned in to discuss his views early in the programme, complained that Mr McAlpine advocated throughout the broadcast that cannabis was safe to be used in New Zealand both recreationally and medicinally, without accepting that it could be harmful. Mr Parlane in particular complained that there was no factual basis for Mr McAlpine’s claims and that the programme was unbalanced.

[4]  The issues raised in Mr Parlane’s complaint are whether the broadcast breached the accuracy, balance, law and order, good taste and decency, fairness, programme information and discrimination and denigration standards, as set out in the Radio Code of Broadcasting Practice.
[5]  In our view, the accuracy, balance and law and order standards are the most relevant to Mr Parlane’s concerns. We have therefore focused our determination on those standards, and address the remaining standards from paragraph [33] below.

[6]  The programme was broadcast between midnight and 5am on RadioLIVE on 31 December 2017. 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 complaint

[7]  Mr Parlane did not make specific submissions under each of the standards nominated in his complaint. His submissions on the complaint overall are summarised below:

• Mr McAlpine claimed that self-dosed cannabis was less harmful than alcohol and no more harmful than everyday herbs, with no harmful side-effects.
• Mr McAlpine spent the programme justifying the use of cannabis, claiming that because other countries had legalised it, it was therefore safe to use in New Zealand both medicinally and recreationally.
• Mr McAlpine had no evidential basis for his claims and did not warn the public that it could be harmful or that they should be careful with it, instead giving the message that the use of cannabis was acceptable.
• When challenged, Mr McAlpine refused to accept that it was at all harmful or that there was any difference between medicinal cannabis, provided in measured, supervised doses, or ‘‘the free for all’ that he was advocating’.
• Mr McAlpine ridiculed people who had not tried cannabis and claimed they were in no position to comment about it.
• To balance the programme, the host should have reported on the harmful effects of chronic drug use.
• It was not correct to say that cannabis was legalised in Portugal, as it was still illegal to use but the focus was now on rehabilitation.

Freedom of expression

[8]  Consideration of the right to freedom of expression is the starting point when we determine a complaint about an alleged breach of broadcasting standards. We weigh the value of the broadcast, as well as the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused to individuals, or to audiences generally, as a result of the broadcast.

[9]  Overnighter is a talkback programme, broadcast between midnight and 6am, which features discussion from the host and callers about various topics of interest. The Authority has previously recognised that talkback radio provides a valuable forum for the expression of opinions. This broadcast in particular discussed a controversial topic – whether cannabis should be legalised in New Zealand – and we acknowledge that the host put forward his view, at times forcefully, that cannabis was no more harmful than other legal drugs such as alcohol and should be decriminalised for both medicinal and recreational use. However, the right to freedom of expression allows the host to express his views in the manner he chooses, so long as broadcasting standards are maintained. This was an important topic to debate and to seek listeners’ views on, and there was value in this programme, in terms of the right to freedom of expression.

[10]  For the reasons we outline below, we have not found that the broadcast caused harm in the manner alleged in the complaint, at a level which warrants restricting the right of the broadcaster, the host, and callers, to put forward their views, and the right of listeners to hear those views. We therefore do not uphold any aspect of the complaint.

Was the programme inaccurate or misleading?

[11]  The accuracy standard (Standard 9) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from being significantly misinformed.

[12]  Guideline 9a to the standard states that it does not apply to statements which are clearly distinguishable as analysis, comment or opinion. Guideline 9d to the standard states that talkback programmes will not usually be subject to the accuracy standard.

The broadcaster’s submissions

[13]  MediaWorks submitted that talkback radio is a forum for the exchange of opinion. The material presented by the host and callers throughout the broadcast were distinguishable as opinion, comment or analysis and as such, the accuracy standard did not apply.

Our analysis

[14]  This broadcast, as a talkback programme, primarily comprised opinion, analysis and comment. The host was clear throughout that his statements about the decriminalisation of cannabis represented his own view or opinion on the matter. Further, given the nature of the programme as a talkback show, which is primarily concerned with the opinions of callers in discussion with the host, listeners would not have expected this material to be subject to standards of accuracy.

[15]  While the host did also raise some material that could be considered factual, for example, in his discussion about the legal position of some states in the USA and Portugal, having regard to the sources cited below at paragraph [27], it appears that the information provided was correct, based on the material relied upon by the host.

[16]  For these reasons, we do not uphold this aspect of Mr Parlane’s complaint.

Was the programme sufficiently balanced?

[17]  The balance standard (Standard 8) states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest. The standard exists to ensure that competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.

The broadcaster’s submissions

[18]  MediaWorks submitted:

• The issue of whether cannabis should be legalised for medicinal or recreational use is a controversial issue of public importance.
• The broadcast contained a range of viewpoints (from the announcer and many callers who called to discuss the subject).
• It was likely that listeners would have also been aware of views about the issue that had been expressed in other coverage. The issue has been entrenched in public discourse over a lengthy and ongoing period of current interest.

Our analysis

[19]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.¹

[20]  Talkback programmes can reasonably be described as programmes which are wholly based on opinions or ideas. Such programmes are generally not considered to be news or current affairs, to which the balance standard applies, and as such, listeners would not have expected to hear a balanced or authoritative examination of the issues discussed.² We therefore find the requirements of the balance standard were not triggered in this case.

[21]  In any event, we note a wide variety of views were expressed during this broadcast. While the host was strongly in favour of decriminalisation, he spoke to a number of callers who were either against this stance, or who expressed some challenges or problems that might arise in decriminalising cannabis for medicinal or recreational use. For example:

• The complainant put forward his view that cannabis was harmful to people. He worked with regular users of cannabis and noted the risk that people could come to work under the influence of the drug.
• A number of callers raised the issue of cannabis having a negative effect on mental health, with one caller commenting that New Zealand had a ‘major problem’ with mental health and that marijuana increased previous anxiety. A caller who was a mental health nurse said that she had ‘seen the other side of marijuana use’, saying that it affected young people. She was also against the growth of the cannabis ‘industry’.
• The host acknowledged that there were challenges around decriminalising drugs, saying, ‘It’s not all good and it’s not all bad – there are issues, it’s like with alcohol…’
• One caller said she could see both sides of the argument, but that young people under the age of 20 should not be able to buy cannabis, as cannabis affected the connections in the brain, causing brain damage, and young people’s brains were still developing at this stage.
• A caller, who had smoked marijuana for 30 years, detailed the negative impact the drug had on him, saying he was lazy, did not get out of bed and was not eating properly. He further said that smoking marijuana could be fatal given that it was five times more carcinogenic than tobacco and could damage the lungs.
• The final caller discussed the negative impact smoking marijuana had on one of his sons, saying ‘instead of…making them more relaxed it… [caused] all sorts of violent problems’. He also referred to the impact on young people’s development and said that some people became addicted to alcohol and drugs, including marijuana, ‘because there’s a void in their life’.

[22]  While the host engaged in some robust debate with callers, and strongly rebutted some of the arguments made, we do not consider this resulted in a breach of the balance standard, given other various callers pointed to significant views on the debate or challenged the host’s opinion, as outlined above. The host may have advanced a set view, but he also adopted a respectful approach and acknowledged the range of perspectives presented by the callers.

[23]  We therefore do not uphold the balance complaint.

Did the programme encourage listeners to break the law, or otherwise promote, condone or glamorise criminal activity?

[24]  The purpose of the law and order standard (Standard 5) is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity. Programmes should not actively promote serious antisocial or illegal behaviour (guideline 5a). The context of the programme and the wider context of the broadcast are important considerations when assessing complaints under this standard (guideline 5b).

The broadcaster’s submissions

[25]  MediaWorks submitted:

• The standard does not stop broadcasters from discussing criminal behaviour or other law-breaking, even if they do not explicitly condemn that behaviour.
• The issue of cannabis legislation (for either medicinal or personal use) has long been a topic of public debate, which has been heightened with the new Government which has shown an appetite to address various issues relating to cannabis law.

Our analysis

[26]  As we have noted above, Mr McAlpine put forward his strong view throughout this programme that cannabis should be decriminalised, for both medicinal and recreational use. The host referred throughout the programme to parts of the United States which had legalised the use of cannabis, medicinally and recreationally,³ and to Portugal, which in 2001 decriminalised all drugs.⁴ He commented that marijuana was a herb, like basil or coriander, and was no more damaging or harmful than tobacco, caffeine, or alcohol, to which 10% of the population had a predilection to addiction. He also put forward his view that the New Zealand Government was ‘lagging’ in its views towards legalisation.

[27]  However, taking into account the context of the broadcast and the topic of discussion, which was the issues facing New Zealand in the New Year, we consider it would have been clear to listeners that this was a genuine discussion about whether the law in New Zealand should be reformed when it came to cannabis. The law and order standard does not prevent the discussion of criminal behaviour or other law-breaking, and does not prevent genuine criticism, or even provocative criticism, of laws or their enforcement.⁵

[28]  While the host was supportive of decriminalisation, and presented his opinion in a robust and provocative way throughout the programme, we do not consider his comments actively promoted or encouraged substance abuse among listeners. In fact, Mr McAlpine stated during the programme, ‘I’m not advocating that you do anything that is illegal at the moment, all I’m saying is that we should change the law’. Talkback hosts often present challenging or confrontational opinions, in order to encourage and engage in robust debate, and much of Mr McAlpine’s discussion was hypothetical, comparing the situation in New Zealand to the United States or Portugal.

[29]  The host’s comments were also balanced with the opinion of callers, including the complainant, who disagreed with his view, raising issues around mental health, young people’s development and the impact of cannabis-use on lifestyle, driving and at work (as outlined above in relation to the balance standard). The host clarified his view as the programme went on, agreeing that cannabis should not be made available to young people whose brains were still developing, and should never be used in certain occupations or while operating heavy machinery.

[30]  Overall, the harm alleged did not outweigh the host’s, or callers’, right to express their opinions as part of a talkback discussion about New Zealand’s future.

[31]  We therefore do not uphold the complaint under Standard 5.

Did the programme breach any other broadcasting standards?

The broadcaster’s submissions

[32]  MediaWorks submitted:

• Good Taste and Decency: In the robust, opinionated talkback environment, listeners were unlikely to be unduly disturbed or offended by being exposed to viewpoints with which they disagreed, provided they were not presented in an unacceptably offensive manner. The broadcast did not contain the type of material (such as offensive language or sexual material) typically considered under this standard. 
• Fairness: the complainant did not identify any person or organisation he considered had been treated unfairly.
• Programme information: The material complained about did not require an audience advisory and was not in breach of Standard 2. 
• Discrimination and denigration: People who have not tried cannabis are not ‘a section of the community’ for the purpose of the standard. In any event, Mr McAlpine’s comments amounted to analysis, comment or opinion, which the standard is not intended to prevent. Moreover, his comments were not made with ‘a high level of condemnation’.

Our analysis

[33]  The good taste and decency standard aims to protect audience members from listening to broadcasts that are likely to cause widespread undue offence or distress, or undermine widely shared community standards. Taking into account audience expectations of talkback programmes, including that strong opinions may be offered from time to time, as well as the time of broadcast overnight, and the adult target audience, we are satisfied this broadcast did not threaten community norms of good taste and decency.

[34]  On fairness, we note that the Authority has previously recognised that it is common for talkback radio hosts to disagree with callers, sometimes in a forceful manner. As such, callers should reasonably expect that, by choosing to enter and participate in this forum, they may receive an adversarial response if the host does not share their views.⁶ We do not consider any caller or person referred to during the programme was treated unfairly. The complainant engaged in a robust argument with the host, but this could reasonably be expected.

[35]  In relation to the programme information standard, we note that this standard will rarely apply to radio and is primarily concerned with whether an appropriate audience advisory should be broadcast.⁷ We do not consider this broadcast would have been outside the audience’s expectations of an overnight talkback show or that it required an audience advisory.

[36]  Finally, we agree that the broadcast did not encourage discrimination or denigration against any recognised section of the community.

[37]  We therefore do not uphold these aspects of the complaint.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
21 May 2018

Appendix

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

1      James Parlane’s formal complaint – 31 December 2017
2     MediaWorks’ response to the complaint – 13 February 2018
3     Mr Parlane’s referral to the Authority – 13 February 2018
4     MediaWorks’ confirmation of no further comment – 9 March 2018

¹  Guideline 8a

²  Haines and NZME Radio Ltd, Decision No. 2017-039 at [27]

³  http://time.com/5054194/legal-pot-experiment-history/

⁴  The host referred numerous times to this article: https://www.independent.co.uk/news/world/europe/portugal-decriminalised-drugs-14-years-ago-and-now-hardly-anyone-dies-from-overdosing-10301780.html

⁵  Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15

⁶  As above

⁷  Guideline 2a