Phillips and RadioWorks Ltd - 2009-152
- Peter Radich (Chair)
- Leigh Pearson
- Tapu Misa
- Mary Anne Shanahan
- Peter Phillips
ProgrammeThe Graeme Hill Show
Channel/StationRadio Live # 2
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
The Graeme Hill Show – included commentary from well-known atheist Pat Condell – Mr Condell made negative statements about religion and those who hold religious beliefs – allegedly in breach of good taste and decency, controversial issues and denigration and discrimination standards
Standard 1 (good taste and decency) – contextual factors – Bill of Rights Act – not upheld
Standard 7 (discrimination and denigration) – comments lacked the necessary invective to reach the threshold for encouraging denigration – not upheld
Standard 4 (controversial issues – viewpoints) – segment was an opinion piece – did not discuss a controversial issue of public importance – not upheld
This headnote does not form part of the decision.
 An episode of The Graeme Hill Show was broadcast on Radio Live at approximately 12.55pm on Saturday 5 September 2009. The programme included a six-minute long opinion piece by Pat Condell, a well-known atheist, in which he provided his views on religion and its negative effects on society.
 Mr Condell began by saying:
Hello everyone. First of all, can I just say to all the people who keep writing to tell me that I’m wrong when I say that Christians are born in debt to Jesus, don’t I realise that that debt had already been repaid by Jesus? Well, yes, of course. But only in the same way a finance company will pay off all your current debts, but then you have to pay back the finance company or there’s going to be trouble.
Similarly, if you decide to welsh on the debt that you owe Jesus, the one that he paid with his precious blood, well then you’re going to be in big trouble my friend. In fact, ‘big’ is probably too small a word to describe the kind of trouble you’re going to find yourself in if you reject him as your saviour, because you’re going to fry for eternity...and Jesus isn’t going to do a damn thing about it. Why? Because he doesn’t give a shit, that’s how much he loves you. I think after 2000 years, if anything, he owes us another crucifixion. You can’t live on past glories forever. Who does he think he is, Woody Allen? Come on.
 Mr Condell went on to provide his opinion on the differences between spirituality and religion, stating that the former was a private experience and the latter was a public nuisance, but that they were both “sold to us in a single package under the banner of faith”.
 During the segment, Mr Condell made a number of negative statements about religion and the “man-made trappings of faith” including:
If you’re a spiritual person, you don’t need religion and you know it...If you’re not a spiritual person, then what the bloody hell are you doing on your knees praying like an idiot, like some dog that’s been taught how to do something without understanding why? Get up and stop making a fool of yourself. Because your faith is not a virtue, it’s a vice...
 Towards the end of the segment, Mr Condell stated that “faith” had:
...the freedom to fill the minds of innocent young children with violent superstitions and baseless fears, and this to me really is the curse of faith... it’s the cowardly way that we allow religion to be forced onto children in a clear violation of their human rights, hypnotising them almost at birth, hi-jacking their lives and turning them into little Christians, little Muslims, little Jews before they have the chance to understand the first thing that’s involved...it’s a crime against humanity is what it is and one day it will be against the law. Tell that to Jesus, if you see him, and tell him from me to go and screw himself, to the nearest tree. Peace and who knows, maybe one day, civilisation.
 Peter Phillips made a formal complaint to RadioWorks Ltd, the broadcaster, alleging that the segment had breached standards of good taste and decency, balance and fairness.
 While accepting that the commentator was entitled to hold his own views, the complainant considered the piece to be a “blatant and bigoted attack upon a significant section of the community (namely, Christian believers) couched in intemperate and emotive language”. He contended that Mr Condell had said that “parents who pass on to their children biblical teachings and Christian values” were “guilty of brainwashing their kids” and were “child abusers”.
 RadioWorks assessed the complaint under Standards 1, 4 and 7 and guidelines 1a, 4a and 7a of the Radio Code of Broadcasting Practice. These provide:
Standard 1 Good Taste and Decency
Broadcasters should observe standards of good taste and decency.
Broadcasters will take into account current norms of good taste and decency bearing in mind the context in which any content occurs and the wider context of the broadcast e.g. programme classification, target audience, type of programme and use of warnings etc.
Standard 4 Controversial Issues - Viewpoints
When discussing controversial issues of public importance 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 assessment of whether a reasonable range of views has been allowed for takes account of some or all of the following:
- the programme introduction
- the approach of the programme
- whether listeners could reasonably be expected to be aware of views expressed in other coverage
- the programme type (e.g. talk and talkback which may be subject to a lesser requirement to present a range of views).
Standard 7 Discrimination and Denigration
Broadcasters should not encourage discrimination against, or denigration of, 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.
This standard is not intended to prevent the broadcast of material that is:
(ii) a genuine expression of serious comment, analysis or opinion; or
(iii) legitimate humour, drama or satire.
Broadcaster's Response to the Complainant
 With respect to Standard 1, RadioWorks stated that talkback radio had a robust nature and that the audience expected this regular feature in Graeme Hill’s programme. It considered that the segment had not contained any “strong expletives” or “hate speech”.
 The broadcaster contended that Mr Condell’s comments did not “stray beyond the boundaries of what the target audience would expect to hear”, and it declined to uphold the complaint that the programme breached standards of good taste and decency.
 Turning to Standard 4, RadioWorks acknowledged that, by its very nature, theology (including atheism) was one of society’s most profound and ongoing debates. However, it argued that the segment expounded a certain viewpoint on the general nature of faith and that it had not discussed any specific issue or event. It considered that Mr Condell’s opinion piece did not involve a discussion of a controversial issue of public importance, and declined to uphold the Standard 4 complaint.
 The broadcaster stated that, when it considered an alleged breach of the discrimination and denigration standard, it had to decide whether the comments blackened the reputation of a class of people. It considered that, while Mr Condell gave his opinions with a vehemence that may have caused offence to listeners with a different view, the segment comprised of serious comment, which was an exception under guideline 7a.
 RadioWorks contended that Mr Condell did not push his “rhetoric into the realm of hate speech” and that most of his comments were directed at religious beliefs and practices in general, as opposed to vilifying Christians or any other group. It considered that, while Mr Condell was critical of faith-based practices, Christianity and other religious institutions were sufficiently robust to endure such critique.
 RadioWorks argued that Mr Condell’s statements could be classed as legitimate opinion. It contended that he had not explicitly named any one group of society as “child abusers”, but condemned familial religious hegemony as a whole.
 The broadcaster argued that Mr Condell’s comments did not fall into the category of vitriol and it declined to uphold the complaint that the programme breached Standard 7 (discrimination and denigration).
Referral to the Authority
 Dissatisfied with RadioWorks’ response, Mr Phillips referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 The complainant said that he had nominated standards called “good taste and decency”, “balance” and “fairness” in his formal complaint. He said that he had taken these standards from a guide on the Authority’s website and not from the Radio Code of Broadcasting Practice itself. He pointed out that the broadcaster had considered his complaint under “good taste and decency”, “controversial issues – viewpoints” and “discrimination and denigration”. He considered that the broadcaster’s decision did not address his concerns regarding “balance” and “fairness”.
 Mr Phillips argued that Mr Condell had specifically referred to the Christian religion by mentioning Jesus and had therefore referred to all Christians by implication.
 The complainant noted RadioWorks’ reference to talkback, and argued that the segment he was complaining about did not fall into the category of talkback, as it was a “monologue opinion piece” with no opportunity for callers to ring in.
 The complainant reiterated his argument that the segment had contained “crude” and “offensive language” that had breached broadcasting standards.
 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 Authority determines the complaint without a formal hearing.
 With respect to Mr Phillips’ contentions regarding the standards chosen by the broadcaster to assess his complaint, the Authority considers that RadioWorks selected the relevant standards from the current Radio Code which addressed the complainant’s concerns.
 The Authority points out that the Radio Code was revised on 1 July 2008. The standard formerly called “balance” in the previous code is now called “controversial issues – viewpoints”, and discrimination and denigration is now a separate standard having been a guideline under the old fairness standard.
Standard 1 (good taste and decency)
 When the Authority considers an alleged breach of Standard 1, it takes into account the context of the broadcast. On this occasion, the relevant contextual factors include:
- The Graeme Hill Show had an adult target audience
- the segment was broadcast at approximately 12.55pm on a Saturday
- the expectations of regular viewers
- the segment contained coarse language.
 When the Authority upholds a complaint, it places a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. While "the right of freedom of expression is not an unlimited and unqualified right"1, the Authority must ensure that, if it is considering upholding a complaint, the restriction on the broadcaster’s right to freedom of expression would be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).
 In the Authority’s view, the right to broadcast serious comment criticising institutions within society falls squarely within a broadcaster’s freedom of expression. This is especially so when the institutions involved are global ones, sufficiently robust to withstand strong commentary critical of their practices and beliefs.
 The Authority acknowledges that there may be situations where serious comment does offend good taste and decency – for example, where the commentary was particularly vicious or vitriolic – however it considers Mr Condell’s remarks did not fall into this category. While his statements were provocative and his concluding comments were somewhat aggressive and borderline in terms of their acceptability, they did not stray beyond the bounds of good taste and decency. This is especially so when considering the robust nature of the forum in which the comments were made.
 As a result, the Authority finds that upholding a breach of Standard 1 on this occasion would place an unjustifiable restriction on the broadcaster’s right to freedom of expression.
 Taking the above contextual factors into account, the Authority declines to uphold the complaint that the segment breached Standard 1 (good taste and decency).
Standard 7 (discrimination and denigration)
 Standard 7 states that broadcasters should not encourage discrimination against, or denigration of, 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.
 The term "denigration" has consistently been defined by the Authority as blackening the reputation of a class of people (see, for example, Mental Health Commission and CanWest RadioWorks2). It is also well-established that in light of the requirements of the Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration in contravention of the standard (see, for example, McCartain and Angus and The Radio Network3).
 Guideline 7a states that the standard is not intended to prevent the broadcast of material that is “a genuine expression of serious comment, analysis or opinion”. This does not mean that such forms of expression are given unchecked freedom; their specification in guideline 7a simply reflects the fact that democratic societies place a high value on these forms of expression, and limitations should be imposed only in extreme circumstances which take a broadcast outside of a “legitimate context”. In the Authority’s view, the comment, analysis or opinion would have to move towards the realm of hate speech or vitriol before the threshold would be crossed.
 In the Authority’s view, the broadcast complained about clearly contained Mr Condell’s own opinions and comments. Furthermore, he attacked the notion of faith and religion in very general terms. While his remarks were provocative and in places borderline, they could not be described as inciting hatred towards a particular section of the community and did not have the necessary invective to reach the threshold for encouraging denigration.
 Accordingly, the Authority declines to uphold the complaint that the segment breached Standard 7.
Standard 4 (controversial issues – viewpoints)
 Standard 4 requires broadcasters to make reasonable efforts, or give reasonable opportunities, to present significant points of view when controversial issues of public importance are discussed in news, current affairs and factual programmes.
 When determining an alleged breach of Standard 4, the Authority must consider not only whether a controversial issue was raised, but also how a programme has approached that issue, the nature of the programme, the context of the discussion, and how a reasonable listener would have understood the information being presented to them (see RadioWorks Ltd and Cindy Kiro4).
 The Authority accepts that, by its very nature, theology is one of society’s most profound and ongoing debates. However, it points out that there is a difference between a programme that purports to present a serious and even-handed discussion versus one that is unambiguously opinion-based.
 On this occasion, the Authority agrees with the broadcaster that the segment did not constitute a discussion of a controversial issue of public importance, because it was clearly an opinion piece that expounded a particular viewpoint on the general nature of faith and religion. The broadcaster was therefore not required to present any other viewpoints.
 Accordingly, the Authority declines to uphold the complaint that Standard 4 was breached.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
15 February 2010
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Peter Phillips’ formal complaint – 8 September 2009
2. RadioWorks’ response to the formal complaint – 17 November 2009
3. Mr Phillips’ referral to the Authority – 25 November 2009
4. RadioWorks’ response to the Authority – 30 November 2009
1P v D and Independent News Auckland Ltd  2 NZLR 591, at 599, per Nicholson J
2Decision No. 2006-030
3Decision No. 2002-152
4Decision No. 2008-108