BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Leigh Pearson declared a conflict of interest and did not participate in the determination of this complaint.

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Summary 

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

Talkback radio host Sean Plunket reacted to author Eleanor Catton's comments at a literary festival in India, which were negative about the New Zealand government. He was highly critical of Ms Catton, saying that she was a 'traitor' and an 'ungrateful hua' among other things. The Authority did not uphold complaints that Mr Plunket's comments breached broadcasting standards. The nature of Ms Catton's remarks was such that it was reasonable for them to attract some strong views in response. The host's comments were within the bounds of audience expectations of talkback radio and within the right to freedom of expression.

Not Upheld: Fairness, Good Taste and Decency, Discrimination and Denigration, Controversial Issues, Accuracy

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Introduction

[1]  Talkback radio host Sean Plunket reacted to author Eleanor Catton's comments at a literary festival in India, which were negative about the New Zealand Government. He was highly critical of Ms Catton, saying that she was a 'traitor' and an 'ungrateful hua' among other things.

[2]  James Parlane complained that the broadcast was 'offensive', 'gratuitous' 'defamatory' and a personal attack on Ms Catton. Daniel Wilson also complained that the use of the word 'hua' was offensive, that the broadcast amounted to bullying and that one particular comment denigrated 'greenies'.

[3]  The issue is whether the broadcast breached the fairness, good taste and decency, discrimination and denigration, controversial issues and accuracy standards, as set out in the Radio Code of Broadcasting Practice. In our view the fairness standard is the most relevant to the complainants' concerns so we have focused our determination accordingly.

[4]  The item was broadcast on Radio Live at 9.15am on 28 January 2015. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the programme

[5]  Sean Plunket's talkback show is part of a regular and longstanding talkback format on Radio Live. This programme has for a long time adopted an approach where the host chooses various topics, discusses them and endeavours to stimulate responses from listeners.

[6]  To stimulate reactions and responses the talkback host sometimes uses extravagant language and intentionally 'goes over the top'. This is territory where excessive language and inappropriate comments are often heard from listeners calling in and sometimes from the radio host. This is one of the areas of radio broadcasting from which the expression 'shock jock' comes. Provocative and extravagant language has been used by previous radio hosts on this programme.

[7]  Eleanor Catton is a New Zealand author who has recently gained prominence and high professional standing through her authorship of the novel The Luminaries. This novel was awarded the 2013 Man Booker prize for literature.

[8]  During an interview at the Jaipur Literary Festival in January 2015, Ms Catton is reported as having said in relation to governments, including the New Zealand government, that they are led by:

...[N]eo-liberal, profit-obsessed, very shallow, very money-hungry politicians who do not care about culture... they care about short-term gains. They would destroy the planet in order to be able to have the life they want. I feel very angry with my government.

[9]  She apparently also said that she was uncomfortable being seen as an ambassador for New Zealand. She made further comments of a negative kind.

[10]  Mr Plunket's response was to draw attention to what he considered to be the incongruity of her position where she had received government support and was continuing in a government-funded employment position. He asserted in essence that Ms Catton was biting the hand that fed her and was insulting the country that sustained her and itspeople. He made the following comments:

•  'You've got a job that's all about culture that's paid for by the taxpayer... stick that where the sun don't shine'.
•  'What does she do? She goes off to India and she bags this country'.
•  'You're lucky enough, Eleanor, to live in a democracy'.
•  Writing The Luminaries was 'not too hard for Eleanor Catton, who has a government-funded job'.
•  In response to Ms Catton's statements that she felt 'uncomfortable' being seen as an ambassador for New Zealand: 'I see you as a traitor' and 'What, we all said you were great? Did that make you uncomfortable?'
•  'I'm only having a crack at you now because you've been such an ungrateful hua'.
•  'Do you want everything, Eleanor?'
•  '...absolutely appalling that Eleanor Catton (who apparently is a bit of a greenie)... If you've got nothing to say, don't say anything'.
•  'And how do you feel when Eleanor Catton goes around internationally bagging this country that has done so much for her?'
•  'Does Eleanor Catton need to take a happy pill?'
•  'When you bag them [New Zealand politicians], you bag all of us'.
•  'The number of people - I'm thinking about that guy from Massey who's a greenie and goes on about anti-farming and everything – a whole lot of people in government-paid jobs who can do nothing but criticise and be politicised, I think that's wrong'.

[11]  Later in the programme Mr Plunket said, 'Just by way of correction, I called Eleanor Catton a "hua", not a "whore". A "hua" is just a woman who annoys you. I just wanted to clean that up.'

Freedom of expression

[12] Matters of broadcasting standards need to be considered in the context and within our social environment. Dominating the landscape in our social environment is a concept of freedom of expression. This concept is now embedded in the New Zealand Bill of Rights Act 1990, section 14 of which provides that 'Everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind and in any form.'

[13]  We have previously endeavoured to explain our approach to the right to freedom of expression as follows:¹

Consideration of the Bill of Rights Act is fundamental to our consideration and evaluation of these complaints...

We are being asked to limit the right of freedom of expression which is provided for in the Bill of Rights Act. In terms of that Act, if we are to uphold a complaint we must impose only such limit on the broadcaster's right of freedom of expression as is reasonable and we must be able to demonstrate that our limitation is justified. Put simply, we must be able to show that the harm done by the broadcast justifies any limitations imposed by upholding any part of the complaints under the nominated standards. When we speak of any harm being done by the broadcast, this need not be related to a particular person or persons, although it often is. The harm can be in a wider sense and the Act recognises that there is a general harm in limiting the right of freedom of expression in a democratic society. If we are to impose limitations, we have to show that they are counterbalanced by other adverse consequences which would arise if limitations were not imposed.

[14]  It has long been recognised that talkback radio is an environment where robust challenging statements and opinions are to be expected and are to be tolerated. The genre of talkback radio requires activity to be generated. The interactions required by talkback need to be stimulated and sometimes this stimulus has to be through the use of sharp points. Talkback radio fills an important place in our liberal democratic society and while what sometimes happens there may cause discomfort, the value of the venue is such that this discomfort caused from time to time has to be carried. That is not to say that there are no limits but rather to say that the thresholds in this venue are higher than in most other broadcasting environments. We think that most people understand and accept this and are discriminating in what they absorb off talkback radio. Many listeners reject comments of the kind in question here as intemperate rantings. But of course there are others who identify and support comments such as these.

[15]  It is an integral part of certain types of talkback radio for hosts to be provocative. Some types of talkback radio are dependent on these sorts of stimuli and provocations. But again as we say, there are limits. In assessing the complaint, we must balance the public interest in the broadcast, the significance of the issues to the target audience and their right to hear about those issues, and the broadcaster's right to freedom of expression, against the potential harm alleged to have been caused.

Was Ms Catton treated unfairly?

[16]  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.²

[17] Mr Parlane argued that calling Ms Catton a 'traitor' and a 'hua' was defamatory and unfair. He considered the broadcast to be gratuitous bullying. He thought that if Ms Catton was to be subject to this sort of criticism it should be in circumstances were she had some immediate opportunity to respond.

[18]  We have previously recognised that the threshold for finding a breach of the fairness standard in relation to public figures is higher than for a layperson or someone unfamiliar with dealing with the media:³

The Authority observes that the fairness standard does not prevent criticism of public figures. Indeed, it is an essential element of free speech that even the most trenchant criticism of public figures be allowed...

[19]  With this in mind and having carefully listened to the broadcast a number of times, we have reached the view that Ms Catton was not treated unfairly.

[20]  Ms Catton's comments at the Jaipur festival were comments of a very provocative kind. As a public figure who was speaking disparagingly about her country and its government, she had to expect some aggressive responses particularly on talkback radio. Public figures who are experienced know that there is little that is private and that care needs to be taken in statements made publicly if responses and criticisms are to be avoided. We say, while understanding Ms Catton's position, that she left herself open for criticism of an aggressive kind.

[21]  Mr Plunket's response was virulent and aggressive. The general nature of his response was to attack Ms Catton. We have, several times, listened to the tone and the timbre of the words spoken by the radio host. The words came over as hostile and aggressive sounds exuding contempt. Heavy criticism is what Ms Catton, in the circumstances, had to expect and absorb. Here however, it is the severity of the attack and the hostility and aggression of the language used that has raised the question of whether this attack went too far.

[22]  The other question is whether Mr Plunket's comments ought to have been made about Ms Catton when she was not in a position to give an immediate response. In our opinion, when a public figure, as Ms Catton is, makes public comments they can be responded to in a public forum without the public figure being present or available to make an immediate response. Just as Ms Catton spoke disparagingly about the New Zealand Government and New Zealand in a place where there was no opportunity for a response to be given, the radio host was entitled to criticise Ms Catton in her absence.

[23]  In all the circumstances, we are reluctant to interfere with the broadcaster's right to freedom of expression. As has been said many times, a freedom to express oneself is not a freedom to express oneself only in a way that others like; the freedom requires listeners to hear things that they do not like and with which they strongly disagree. We think that the concept of freedom of expression clearly applies both to the content and to the manner in which that content is expressed.

[24]  Eleanor Catton was powerfully exercising her right to freedom of expression and has had to suffer the responses including those from the broadcaster. Conversely, the broadcaster has exercised its right to freedom of expression and it will have suffered consequences from those who objected to what Mr Plunket said and the way in which he said it. If Mr Plunket was saying that Ms Catton ought not to be critical of New Zealand or its government, this at least when she was receiving some support from government funding, some will see this as being inconsistent with the right to freedom of expression. There will be shades of support and opposition across the spectrum of views.

[25]  As we have tried to say, broadcasts of this kind carry their own consequences. Different views should be allowed to be expressed and people in our democracy should be allowed to make their own judgements. We do not think that we should say that this broadcast ought not to have happened and that the radio host should not have said what he said. The different views have been expressed and have been evaluated and those who have expressed or broadcast these views have been judged accordingly. This is how we think things are meant to work in a liberal democracy. We do not think that our society would be better off if views such as those of the radio host were staunched.

[26]  As a result we decline to uphold the Standard 6 complaint.

Did the broadcast threaten current norms of good taste and decency?

[27]  The good taste and decency standard (Standard 1) is primarily aimed at broadcasts containing sexual material, nudity, coarse language or violence.⁴ The Authority will also consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress.⁵

[28]  Both complainants argued that the broadcast was contrary to good taste and decency, particularly in relation to the use of the expression 'hua'. They asserted that this effectively likened Ms Catton to a 'whore' or a 'prostitute'.

[29]  MediaWorks pointed out that the word 'whore' was not broadcast, and argued that Mr Plunket's subsequent clarification about his meaning of the word 'hua' 'demonstrated that the word did not fall outside audience expectations for appropriate language'. It maintained that the broadcast did not breach Standard 1, taking into account relevant contextual factors such as the robust environment of talkback radio, the adult target audience and regular listeners' expectation of Mr Plunket.

[30]  In the context in which it was used, we do not see the expression 'hua' as being indecent nor do we see it as meaning 'whore'. The word 'whore' was not used in the broadcast. We understand that the expression 'hua' is one which was more commonly used decades ago as a general term of disapproval, and one which had a certain flexibility. As Mr Wilson does, we consider that the words of Humpty Dumpty have some relevance. If he were using the word 'hua' he would be able to say 'it means just what I choose it to mean – neither more nor less'. Mr Plunket explicitly clarified within the broadcast that he had not said 'whore', and by using the word 'hua' he meant 'a woman who annoys you'. Here, it was a term of strong disapproval but it did not, in our view, have any indecent implications.

[31]  The radio host's exhortation to Ms Catton to put her taxpayer position in the place suggested was coarse, indecent and brutish. It was insulting. On balance, we do not think this means we should intervene. The use of this sort of language carries its own consequences. It causes some people to be turned off and to turn off. It results in the standing of a radio host with some people being reduced. We do not think it needs a state regulator to intercede because it is not of the level where an intercession is required, particularly in the context of a robust, opinionated and sometimes provocative or challenging forum, such as talkback radio.

[32]  Accordingly we decline to uphold the complaints under Standard 1.

Did the broadcast encourage the denigration of, or discrimination against, 'greenies' as a section of the community?

[33]  The discrimination and denigration standard (Standard 7) protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

[34]  Mr Wilson argued that Mr Plunket's reference to Ms Catton being a 'greenie' encouraged discrimination against, or denigration of, those who held similar political beliefs to her. MediaWorks disagreed that Mr Plunket's comments breached the standard given he was responding to a public figure, in a robust talkback environment, and was exercising his right to freedom of expression.

[35]  We accept that 'greenies' could be considered a section of the community on the grounds of 'legitimate expression of... political belief'. However, we disagree that Mr Plunket's single peripheral reference to Ms Catton being 'apparently... a bit of a greenie' could be seen as making any derogatory comment about, or judgement on, all 'greenies'. It did not carry the high level of invective necessary to reach the threshold for breaching this standard.

[36]  We therefore decline to uphold the Standard 7 complaint.

Did the broadcast breach standards relating to controversial issues and accuracy?

[37]  The balance standard (Standard 4) 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 accuracy standard (Standard 5) 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.

[38]  As far as these standards are concerned we consider that they have no application. No statements were identified by Mr Parlane that were alleged to be inaccurate, and in any case guideline 5b to the accuracy standard explicitly recognises that talkback radio will not usually be subject to the accuracy standard, except where the presenter makes an unqualified statement of fact. As we have said, this programme clearly comprised Mr Plunket's own opinions. In terms of Standard 4, this item was the start of the controversy rather than a discussion of it. In any event, the purpose of the talkback programme was to open the issue for debate.

[39]  As a result we decline to uphold Mr Parlane's complaint under these standards.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
24 June 2015

Appendix

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

James Parlane's complaint
1      James Parlane's formal complaint – 29 January 2015
2      MediaWorks' response to the complaint – 26 February 2015
3      Mr Parlane's referral to the Authority – 26 February 2015
4      MediaWorks' response to the Authority – 27 March 2015
5      Mr Parlane's final comment – 30 March 2015
6      MediaWorks' final comment – 15 April 2015

Daniel Wilson's complaint
1      Daniel Wilson's formal complaint – 4 February 2015
2      MediaWorks' response to the complaint – 26 February 2015
3      Mr Wilson's referral to the Authority – 26 February 2015
4      MediaWorks' response to the Authority – 27 March 2015
5      Mr Wilson's final comment – 27 March 2015
6      MediaWorks' final comment – 15 April 2015

¹ Francis, Gouge and Thompson and TVWorks Ltd, Decision No. 2011-104 at [26]

² Commerce Commission and TVWorks Ltd, Decision No. 2008-014

³ Kiro and RadioWorks Ltd, Decision No. 2008-108

⁴ Turner and Television New Zealand Ltd, Decision No. 2008-112

⁵ Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November 2006)