Phair and Radio One - 2011-140
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Rob Phair
Channel/StationRadio One 91FM
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Overgrown – cannabis law reform-themed radio show advocated cannabis use – host referred to a phone call from a general practitioner and made comments about the views he allegedly expressed – allegedly in breach of standards relating to law and order, controversial issues, accuracy, fairness and responsible programming
Standard 6 (fairness) – complainant was not named and unlikely to be identified from the limited information broadcast – host’s comments did not reach the necessary threshold to be considered unfair to the complainant – complainant not treated unfairly – not upheld
Standard 2 (law and order) – while the programme encouraged and promoted cannabis use this was in the spirit of protest and to promote law reform – value of speech important – not upheld
Standard 4 (controversial issues) – Overgrown was not a “factual programme” to which the standard applied – show was opinion-based and put forward a particular viewpoint – not upheld
Standard 5 (accuracy) – not a “factual programme” to which the standard applied – not upheld
Standard 8 (responsible programming) – the hosts highlighted responsible use and the health implications of smoking cannabis are well known – programme not irresponsible – not upheld
This headnote does not form part of the decision.
 Overgrown, a weekly radio show advocating cannabis law reform, was broadcast on the University of Otago’s radio station, Radio One, between 9pm and 11pm on 16 September 2011. In addition to music, cannabis news and events, one of the hosts referred to a phone call received from a general practitioner (GP) in Kununurra, Australia, and made a number of comments about the views allegedly expressed by the GP about a purported link between cannabis use and schizophrenia.
 Rob Phair, the GP referred to in the programme, made a formal complaint to Radio One, the broadcaster, alleging that the show actively promoted and encouraged cannabis use and ignored the detrimental health effects associated with its use. In addition, he argued that he was treated unfairly by the radio host, and in particular that his viewpoint was misrepresented and that he was denigrated on air.
 It is apparent that Dr Phair listened to the show online as it was streamed live, as opposed to through radio transmission. The Authority has previously determined that live streaming comes within the definition of “broadcasting” in section 2 of the Broadcasting Act 1989,1 and we therefore have jurisdiction to consider the complaint.
 The issue is whether the programme breached Standards 2 (law and order), 4 (controversial issues), 5 (accuracy), 6 (fairness) and 8 (responsible programming) of the Radio Code of Broadcasting Practice.
The nature of the programme and freedom of expression
 At the outset, we recognise the right to freedom of expression which is guaranteed by section 14 of the Bill of Rights Act 1990, and acknowledge the importance of the values underlying that right. The right to free expression includes the freedom to seek, receive, and impart information and opinions of any kind in any form. Any restriction on the right to freedom of expression must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).
 Overgrown was a law reform-themed radio show which openly advocated cannabis consumption for the purpose of promoting and supporting legalisation. It was hosted by, and represented the opinions of, a pro-cannabis student club affiliated with the Otago University Students Association. It is described on the club website as a “weekly dose of hard-hitting ganja tunes, cannabis news, events, science and truth”.2
 In our view, the type of speech engaged here – peaceful protest speech on a longstanding and ongoing political issue involving questions of personal freedom and choice – is of high value. The right to comment on, and challenge, laws in a provocative way, is an important feature of living in a democracy. Such speech contributes to the marketplace of ideas, sparks debate and promotes the autonomy of the individual, which are core values underpinning the right to freedom of expression.3
 Taking into account the nature of the programme and the high value of the speech engaged on this occasion, we consider that a strong justification is required to restrict the broadcaster’s right to impart such information and the audience’s right to receive it.
 With these principles in mind, we proceed to consider the broadcasting standards alleged to have been breached.
Was the complainant treated unfairly?
 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.4
 Dr Phair considered that he was treated unfairly because when he contacted the radio station he was allegedly subjected to verbal abuse by the host, his views were misrepresented and he was denigrated on air.
 Radio One said that it did not record off-air telephone calls and so could not determine what transpired during the conversation, but said that the host refuted those allegations. It did not consider that the host’s comments during the broadcast were unfair to the complainant.
 As the telephone call was not recorded, we are unable to make findings as to whether the complainant was subjected to the alleged abuse from the host. In any case, we emphasise that any unfairness must be reflected in what was actually broadcast.
 We note that the complainant was not named in the broadcast, and was only referred to as a GP from Kununurra, Australia. We consider it unlikely that listeners would have been able to identify him from the limited information broadcast, especially considering that he was not situated in New Zealand.
 In any event, it is our view that the comments broadcast did not reach a level which could be considered unfair to the complainant. The comments were predominantly a genuine expression of opinion, in a relatively moderate and measured manner, in response to the views Dr Phair had allegedly put forward. The host made the following comments with regard to the telephone call:
- “When I discussed with him what his evidence was for the link between cannabis and schizophrenia, he wasn’t able to cite any references, he wasn’t aware of either the Otago study... he wasn’t also aware of the London Institute of Psychiatry study... but he was quite happy to widely cite... rumours that he had heard through the grapevine in his supposedly extensive medical experience...”
- “I don’t know what’s going on there but it might not be the last we hear from that guy, but he’s obviously got so little to do over there in Kununurra that he felt like it was his duty to ring in and abuse us for bringing you these valid factual viewpoints that we do.”
 The host also made the more general comment, “These sort of, you know, bigoted, misinformed people, whoever they are, doctors or otherwise, they’re the ones who are actually doing a disservice to these patient communities by buying into one-sided propaganda and then letting that sort of dictate their treatment outcomes for their patients. Unconscionable if you ask me...”
 We acknowledge that the complainant took offence at these comments. However, rudeness per se is not in itself a breach of broadcasting standards. We do not consider that the comments outlined above crossed the line into the realm of personal abuse. Rather, the host was disagreeing with the views allegedly expressed by the complainant, and in our view he was legitimately entitled to do so, especially considering that this was not unexpected in a programme that promoted cannabis legalisation, and the complainant had willingly engaged with the radio host on that issue. While the host referred to people being “bigoted and misinformed”, as expressed above we consider that this was a general statement and not directed at the complainant personally. Nor do we think that, taking into account the tone of the comment and the forum in which it was made, the words used could be considered to amount to “abuse”.
 In these circumstances, the potential harm to the complainant’s reputation and dignity was minimal. We find that Dr Phair was not treated unfairly and we decline to uphold the Standard 6 complaint.
Did the programme encourage listeners to break the law or otherwise condone or promote criminal activity?
 Dr Phair noted that cannabis use and possession is illegal in New Zealand and argued that the show actively promoted cannabis use for medical and non-medical purposes, and encouraged listeners to smoke cannabis during the show.
 The intent behind the law and order standard is to prevent broadcasts that encourage listeners to break the law, or otherwise promote, glamorise or condone criminal activity.5 The standard exists to ensure that broadcasters refrain from broadcasting material which does not respect the laws which sustain our society.6
 While we accept that the programme promoted and encouraged cannabis use and that such use is unlawful in this country, in our view, this was done in the spirit of protest and for the purpose of contributing to the debate on, and advocating, the decriminalisation of cannabis. The broadcaster maintained that the show was under strict instructions that all messages to participate in cannabis consumption were to be “appended to the fact that this was done in the spirit of supporting cannabis law reform”.
 Taking into account the right to freedom of expression and the values of free speech, we do not consider that this is the type of content Standard 2 is intended to prevent. The Authority has previously stated that the standard does not prohibit challenging or criticising a specific law.7 In a free and democratic society people must be allowed to question and challenge the law and to freely express their opinions and ideas on issues involving self-autonomy and choice.
 We consider that a programme such as this, which advocates a particular viewpoint held by a certain segment of society, most likely broadcasts to a niche audience that already holds views consistent with those expressed on the show. In this respect the potential harm to the underlying rationale of the law and order standard is low, and does not outweigh the importance of the speech and the broadcaster’s right to freedom of expression.
 Accordingly, we decline to uphold the complaint that the programme breached Standard 2.
Did the programme include significant viewpoints on the issue under discussion?
 Standard 4 (controversial issues) 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 Authority has previously stated that the balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.8
 Dr Phair considered that the tone of the show was “shamelessly pro-cannabis” and that it ignored evidence associating cannabis use with mental health, and respiratory and cardiac morbidity. Radio One contended that the show encouraged rigorous debate and the presentation of robust scientific evidence on cannabis consumption and its effects. It said that the hosts regularly warned listeners about the dangers associated with cannabis consumption and encouraged people to refrain from using it if they were susceptible to those dangers.
 Standard 4 applies only to news, current affairs and factual programmes. Overgrown was not a news or current affairs programme, and we must therefore decide whether it fell within the definition of a “factual programme”.
 In Accident Compensation Corporation and TVNZ,9 the Authority stated that factual programmes are those which present themselves, and are reasonably understood by the audience, to be authoritative sources of information. It found that the important criterion was whether a reasonable viewer or listener was entitled to expect that the information given in the programme would be truthful and authoritative, and not just opinion or hyperbole.
 We are satisfied that Overgrown, which openly advocated cannabis law reform, clearly put forward a particular viewpoint, and that listeners would have understood the programme to be largely an expression of opinion. We therefore find that the broadcast was not a “factual programme” to which Standard 4 applied, and we decline to uphold this part of the complaint.
 In any event, we agree with Radio One that the show highlighted responsible use. During a discussion about the use of cannabis as an anti-depressant, the host stated:
Well, you know, it’s about the person and their own body chemistry, not every drug is right for [every person]... some people if cannabis is working for them... obviously if someone is experiencing negative mental symptoms from using cannabis like they feel like they’re becoming schizophrenic, then they shouldn’t use it.
 Further, we consider that the health implications of smoking cannabis are well documented so it was reasonable to expect that listeners would already be aware that, like most other drugs, there are dangers associated with its use.
Was the programme inaccurate or misleading?
 Dr Phair argued that the show misrepresented the evidence, or focused on evidence that was questionable and marginal in the eyes of mental health professionals. Radio One asserted that the programme hosts regularly spoke to a range of health professionals, law enforcement officers, lawyers, politicians and experts about cannabis and encouraged informative debate on the issue of decriminalisation.
 Standard 5 (accuracy) 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. As Overgrown was not “factual programming” to which the accuracy standard applied (see paragraph  above), we decline to uphold the Standard 5 complaint.
Was the programme socially irresponsible?
 Standard 8 requires broadcasters to ensure that programme information and content is socially responsible.
 Dr Phair argued that the show constituted irresponsible programming because it promoted cannabis use, which was associated with significant illness in New Zealand.
 Radio One noted that Overgrown was broadcast during adult listening times, and contended that, from a health perspective, the show did not focus solely on smoking cannabis which was widely known to have cardiac and respiratory effects, but also informed listeners of “healthier” methods for consuming cannabis.
 For the reasons discussed in our consideration of Standards 2 and 4 above, in particular that the hosts highlighted responsible use, the health implications of smoking cannabis are well known, and the programme amounted to high value speech because it is legitimate and desirable in a free democracy for individuals to challenge particular laws and promote law reform, we do not consider that the show was socially irresponsible in the manner alleged by the complainant. We therefore decline to uphold the Standard 8 complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
27 March 2012
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Rob Phair’s formal complaint – 16 September 2011
2 Radio One’s response to the complaint – 17 September 2011
3 Mr Phair’s referral to the Authority – 6 November 2011
4 Radio One’s response to the Authority – 12 December 2011
1See Johnson and Television New Zealand Ltd, Decision No. 2010-152
3For a more detailed discussion of the different values underpinning freedom of expression see Moving from Self-Justification to Demonstrable Justification – the Bill of Rights and the Broadcasting Standards Authority (Claudia Geiringer and Steven Price, 2008)
4Commerce Commission and TVWorks Ltd, Decision No. 2008-014
5See, for example, Keane and Television New Zealand Ltd, Decision No. 2010-082
6Hunt and Māori Television, Decision No. 2009-010
8Commerce Commission and TVWorks Ltd, Decision No. 2008-014
9Decision No. 2006-126