BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 6 (fairness) – broadcasters have the right to screen calls, as a matter of editorial discretion, provided they comply with the requirements of fairness – host did not make any derogatory or abusive comments but simply chose not to engage with the complainant which was not unexpected in the context of talkback radio and the programme – complainant not treated unfairly – not upheld 

Standard 5 (accuracy) – host did not make unqualified statements of fact (guideline 5b) – programme was not inaccurate or misleading – not upheld

Standard 7 (discrimination and denigration) – use of the term “zombie” to refer to person with dementia was not vitriolic or hateful and was not an attack against people with dementia – host was expressing his opinion and comments were typical of his style – broadcast did not encourage discrimination or denigration against people with dementia as a section of the community – not upheld

This headnote does not form part of the decision.

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Introduction

[1]  During Michael Laws Talkback, the host discussed the topic of dementia with a caller whose husband had been diagnosed with dementia, and the host expressed his view that medical personnel were deliberately overmedicating dementia patients, causing them to die. In expressing his views on this topic, the host referred to the caller’s husband as being destined to become a “zombie”. Following this conversation, another caller phoned in and said, “What you’re advocating – that demented people should be euthanised – has been tried before… quite successfully… in Germany in the late 1920s and 1930s”. The host responded, “Oh for god’s sake, I am just going to cut you off right now, bye bye”, and terminated the call. The programme was broadcast on Radio Live on 8 March 2013.

[2]  David Richmond, the caller who was disconnected, made a formal complaint to RadioWorks Ltd, the broadcaster, alleging that the host made inaccurate statements that medical personnel “euthanised” people with dementia, and treated him unfairly by terminating his call when he tried to challenge this assertion. In addition, the complainant argued that the host encouraged discrimination and denigration against people with dementia by using the word “zombie” to describe their disability.

[3]  The issue is whether the broadcast breached standards relating to accuracy (Standard 5), fairness (Standard 6), and discrimination and denigration (Standard 7), as set out in the Radio Code of Broadcasting Practice.

[4]  The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Was the complainant treated unfairly?

[5]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[6]  One of the purposes of the fairness standard is to ensure that 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.¹

[7]  Mr Richmond argued that it was unfair for the host to deny callers the opportunity to express opinions that differed from his, and specifically, that it was unfair for the host to terminate his call when he tried to challenge the assertion that medical personnel “euthanised” people with dementia.

[8]  RadioWorks said that the host’s conduct, in terminating the call almost immediately, appeared to be based on his assumption about what the complainant was going to say, and his decision not to engage in that conversation. It maintained that there was an expectation, on the part of talkback listeners, that they may have their calls terminated by hosts, and especially by Michael Laws.

[9]  In considering whether it was unfair for the host to terminate the complainant’s call in this manner, we pay particular regard to the nature of talkback radio, and audience expectations of this genre. Guideline 6a to the fairness standard recognises that a consideration of what is fair will depend on the genre of the programme, and specific reference is made in that guideline to talkback radio. The Authority has consistently acknowledged that talkback radio is a robust and opinionated environment in which hosts and callers often put forward strong views in a forceful or provocative manner.²

[10]  Talkback listeners and participants are also likely to be aware of the presentation style of particular hosts, including how they treat callers. Mr Laws is well-known for his controversial and provocative presentation style, and in this sense, the behaviour displayed by Mr Laws, in terminating the call, was, in our view, not unexpected.

[11]  The approach of the Authority is to allow broadcasters, as a matter of editorial discretion, to screen calls to talkback shows, provided that such screening does not breach standards relating to balance or fairness.³  Here, while the host openly conveyed his disinterest in what the complainant had to say, based on where he perceived the conversation to be going, his refusal to engage with the complainant was not accompanied by any abusive comments. It is recognised that talkback hosts will sometimes behave rudely, but rudeness per se is not a breach of broadcasting standards.⁴

[12]  We are satisfied that the host’s termination of the call without allowing the complainant an opportunity to more fully express his views, did not meet the threshold for making a finding of unfairness, and we therefore decline to uphold this aspect of the complaint.

Was the broadcast inaccurate or misleading?

[13]  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. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.⁵

[14]  Mr Richmond argued that it was inaccurate for the host to state that doctors regularly overmedicated people with dementia to effectively “euthanise” them. He said that based on his experience as a retired medical practitioner, the host’s statements were a “total misrepresentation”.

[15]  Guideline 5b to the accuracy standard says that talkback radio will not usually be subject to the standard, except where the presenter makes an unqualified statement of fact. This recognises that talkback radio is primarily a forum of comment and opinion, and regular listeners understand that general statements made by hosts and participants should be interpreted with this context in mind.

[16]  We agree with the broadcaster that the host’s comments that medical personnel deliberately overmedicate dementia patients causing them to die, were expressed as his personal opinion in favour of a particular viewpoint; they were not “unqualified statements of fact”. The comments formed part of the following exchange:

Caller:    I wondered if you had given any thought as to who would give these injections, for
              putting people down?

Host:      I think medical personnel, obviously.

Caller:    Well, I don’t think that it’s very good to expect that of people.

Host:      Oh come on, it happens every day.

Caller:    Does it, not with injections, surely?

Host:     Yeah, absolutely, are you joking?

              …

             How do you think the terminally ill shuffle off this coil on a regular basis?

              …

             They overmedicate them and that’s why they die…

[17]  The comments were made during an informal exchange between the host and a caller, and were clearly presented as the host’s opinion. The host preceded the assertion with the phrase “I think”, and he did not attempt to provide, or refer to, any evidence, to give the claims a factual basis.

[18]  We therefore find that the accuracy standard does not apply, and we decline to uphold the Standard 5 complaint.

Did the broadcast encourage discrimination against, or the denigration of, people with dementia as a section of the community?

[19]  The discrimination and denigration standard (Standard 7) protects against broadcasts which encourage the denigration of, or discrimination against, a section of the community.

[20]  The term “denigration” has consistently been defined by the Authority as blackening the reputation of a class of people.⁶  “Discrimination” is defined as encouraging the different treatment of the members of a particular group to their detriment.⁷  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 or discrimination in contravention of the standard.⁸

[21]  Mr Richmond argued that the host’s use of the term “zombie” to describe people with dementia bordered on “hate speech” and encouraged discrimination and denigration against people with dementia on account of their disability. 

[22]  RadioWorks noted that the comment formed part of an extended discussion with a caller whose husband suffered from dementia, and it asserted that the host expressed sympathy for the caller’s husband, while at the same time expounding his opinion on the topic. In this context, the broadcaster did not consider that the comment amounted to hate speech against people with dementia.

[23]  The comment subject to complaint was made by the host in the context of his opinion that medical personnel overmedicated dementia patients causing them to die, and the caller’s objection to this. He stated:

I am sorry to hear about your husband’s dementia, but you wait until he becomes the zombie he is destined to become, and then you tell me what compassion there is in keeping him in that state.

[24]  We acknowledge that Mr Laws’ use of the term “zombie” in this context may have been considered harsh and offensive by some listeners, including the complainant. However, the comment was not expressed in a vitriolic or hateful tone, and it was clearly not intended as an attack against people with dementia. Rather, the host used the term to express his opinion about what he considered to be the most “compassionate” way forward for people with dementia, and for their families, based on his perception of the impact of the condition on their quality of life. Mr Laws is well-known for expressing his opinions in a strong and sometimes controversial manner. We think that here he was being deliberately provocative to stimulate discussion about a legitimate issue.

[25]  We are satisfied that the use of the word “zombie” in this context did not reach the high threshold necessary to encourage discrimination or denigration against people with dementia as a section the community on account of their disability. We therefore decline to uphold the Standard 7 complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
25 July 2013

Appendix

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

1           David Richmond’s formal complaint – 11 March 2013

2          RadioWorks’ response to the complaint – 12 April 2013

3          Mr Richmond’s referral to the Authority – 19 April 2013

4          RadioWorks’ response to the Authority – 21 May 2013

²See, for example, Bowman and RadioWorks Ltd, Decision No. 2012-049.

³Evans and The Radio Network Ltd, Decision No. 2001-132

⁴E.g. Mazer and RadioWorks Ltd, Decision No. 2010-021

⁵Bush and Television New Zealand Ltd, Decision No. 2010-036

⁶See, for example, Mental Health Commission and CanWest RadioWorks Ltd, Decision No. 2006-030.

⁷E.g. Teoh and Television New Zealand Ltd, Decision No. 2008-091

⁸For example, McCartain and Angus and The Radio Network Ltd, Decision No. 2002-152