BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1)(a) and section 8(1)(c) of the Broadcasting Act 1989
The Beach 94.6FM – complainants both married to police officers – Tony Storey of The Beach FM arrested in March 2004 for cannabis offences – subsequently broadcast abusive comments about police – encouraged listeners to smoke marijuana – broadcast songs with lyrics including “motherfucker” and “fuck” – alleged breach of privacy, encouraged breach of law, encouraged denigration of police, not mindful of children, unbalanced and offensive

Findings
Principle 1 (good taste and decency) and Guideline 1a – offensive language used by announcer and lyrics broadcast at time children might be listening – upheld

Principle 2 (law and order) and Guideline 2a – encouraged breach of law – upheld

Principle 3 (privacy) – no private facts disclosed – no prying – not upheld

Principle 4 (balance) – interview mainly provided information – not upheld

Principle 7 and Guideline 7a (encouraged denigration) – comments encouraging uncooperative attitude to police did not reach threshold – not upheld

Principle 7 and Guideline 7b (mindful of children) – subsumed under Principle 1

Principle 7 and Guideline 7c (classification) – subsumed under Principle 1

Order
Broadcast of statement summarising decision – including apology to listeners

This headnote does not form part of the decision.

Broadcast

[1] On a number of occasions on Friday 19 March 2004, the operator of “The Beach 94.6FM” on Great Barrier Island (Tony Storey) referred to the actions of the police on Tuesday 16 March when some cannabis plants were sprayed and a number of residents were searched and arrested for drug offences. Mr Storey was one of the people arrested. Mr Storey interviewed a spokesperson for the National Organisation for the Reform of Marijuana Laws (NORML) and encouraged listeners to protest the police action by visiting the radio station the following day and smoking marijuana.

[2] Mr Storey, irate about his arrest, used disparaging terms to refer to the police. He acknowledged that he had used the word “fuck” in anger about the police, and had referred to the “short arse bastard” who had arrested him. There was no tape of some of the comments used by Mr Storey, but the comments detailed in paragraph [6] were not denied.

[3] Further, Mr Storey directed his anger at the two police officers permanently stationed on Great Barrier Island. He named one of the two local officers as the “very brave Roger Bright”, who had been in a spotter plane during the police operation. Referring to a local club (the Claris Club) where he had seen the officers, Mr Storey said: “You drink at your watering hole. I’ll drink at mine.”

[4] On Saturday morning, 20 March 2004, Beach FM played some songs which contained the words “fuck” and “motherfucker” and derivatives of each.

Complaints

[5] Dennis Robbins and Leanne Bright each complained to the broadcaster that the broadcasts breached a number of standards. They also complained directly to the Broadcasting Standards Authority under s.8(1)(c) of the Broadcasting Act 1989 that the broadcasts breached their privacy and that of their families.

[6] Ms Bright advised the Authority that her husband was one of the two police officers stationed at Great Barrier Island and added that, as a consequence, day-to-day life had some unpleasant aspects. During the broadcasts on The Beach on 19 March, she wrote, Mr Storey regularly used the word “fuck”, and between 5.00 and 6.00pm in reference to the police, he had used the phrases “fuck right off” and “fuckwits”.

[7] Ms Bright complained that the comments by the broadcaster encouraging people to visit the radio station and smoke marijuana breached the standard relating to the maintenance of law and order. The references to her husband in a spotter plane and to the visit by the officers to the Claris Club, she considered were in breach of the privacy standard. The references to the police generally, and in particular the comment by the announcer that he had been arrested by “a short arse bastard”, Ms Bright wrote, encouraged discrimination against and denigration of the police.

[8] Further matters complained about included:

• the failure of the broadcaster to be mindful of the effect any programme might have on children
• the inappropriate scheduling of programmes containing violent themes
• the probable failure of the broadcaster to retain tapes of the programmes complained about.

[9] Mr Robbins stated that his wife was a police officer and that, after his arrest, Mr Storey had “started an on air vendetta” against the two police officers stationed on the Island. He contended that the comment about his presence at the Claris Club amounted to a breach of privacy.

[10] Mr Robbins also complained about the anti-social pro-drugs themes and the obscene language in the songs played by the station. He referred specifically to the song “I’m a cool motherfucker” played at 8.30am on Saturday 20 March. Moreover, he wrote, Mr Storey regularly used the word “fuck” on air and “openly flaunts his drug use”.

[11] Specifically, Mr Robbins complained that the broadcast also breached the standards relating to:

• the observance of good taste and decency, by playing music with anti-social, pro-drugs and obscene lyrics, by advocating marijuana use, and by using the word “fuck” on air
• the maintenance of law and order, by supporting the use of marijuana and encouraging citizens not to give assistance to the local police
• the requirement for balance, by interviewing a NORML spokesperson without interviewing someone to present the other side of the argument.

Standards

[12] In view of the matters raised by the complainants, the Authority has assessed the complaints under the following standards in the Radio Code of Broadcasting Practice:

Principle 1

In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.

Guideline

1a  Broadcasters will take into consideration current norms of decency and good taste in language and behaviour bearing in mind the context in which any language or behaviour occurs and the wider context of the broadcast eg time of day, target audience.

Principle 2

In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the maintenance of law and order.

Guideline

2a  Care should be taken in broadcasting items which explain the technique of crime in a manner which invites imitation.

Principle 3

In programmes and their presentation, broadcasters are required to maintain standards consistent with the privacy of the individual.

Guideline

3a  Broadcasters shall apply the privacy principles developed by the Broadcasting Standards Authority.

Principle 4

In programmes and their presentation, broadcasters are required to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Principle 7

In programmes and their presentation, broadcasters are required to be socially responsible.

Guidelines

7a Broadcasters will not portray people in a manner which encourages denigration of or discrimination against any section of the community on account of gender, race, age, disability, occupational status, sexual orientation; or as the consequence of legitimate expression of religious, cultural or political beliefs. This requirement does not extend to prevent the broadcast of material which is:

i) factual; or
ii) a genuine expression of serious comment, analysis or opinion, or
iii) by way of legitimate humour or satire.

7b  Broadcasters shall be mindful of the effect any programme may have on children during their normally accepted listening times.

7c  The time of transmission is an important consideration in the scheduling of programmes which contain violent themes.

Initial Correspondence

[13] Mr Storey advised the Authority that he was the owner/manager of The Beach and contended that the complaints arose:

… in regards to a highly controversial week on the Island where the police performed their annual marijuana spraying using highly toxic chemicals. We, at the radio station voiced our opinion on the arrogant act and have won complaints as a reward.

[14] Ms Bright responded that her views were shared by other residents on the Island. As an example, she said that a local café owner had recently telephoned the radio station and asked it to “tone down” the language as there were children in the café.

[15] Ms Bright added that she would prefer not to listen to The Beach as her children were aged 7 and 9, but because of the reception at their house, they were unable to receive any other stations.

[16] In his reply, Mr Storey claimed that there might be a campaign “to bully the radio station off the air”. “Bully tactics”, he alleged, were used by the local police. He also stated that the Auckland FM stations could be received with a decent aerial.

[17] Ms Bright responded by pointing out that she was complaining as a mother and community resident.

Broadcaster's Response to the Complainants

[18] Mr Storey sent his response to Mr Robbins’ complaint to the Authority. Mr Storey stated that the station targeted the 25-year-old plus market and, as the Auckland stations catered for children, he said he would be surprised if children listened to his station. He said he tried to broadcast “real” radio dealing with “real” issues, and was not vulgar. The song “I’m a cool motherfucker”, he argued, was regularly played by Auckland radio stations which targeted children.

[19] Contending that “at least half” of the Island residents smoked marijuana, he said that marijuana use was acknowledged by the station as it was important to relate to listeners honestly.

[20] Mr Storey acknowledged using the word “fuck” on air in relation to the police as his experience with them had left “a very bad taste in [his] mouth”, adding:

We are a small community and I thought it was important to be up front and honest with my experience. I was probably very angry at the time in which some very colourful language was used to express my absolute disgust at the way I and others in the community were treated.

[21] He also acknowledged that he had named the officers (as Kylie and Roger) when broadcasting an editorial summarising events.

[22] Turning to the interview with NORML, Mr Storey maintained that it had been confined to the public safety issue of the use of a toxic spray on cannabis plants. Because of the link between the spray and Round Up, Mr Storey contended that the organic farmers and all who used water from creeks should have been advised of the implications.

[23] Mr Storey concluded his response to the complaint from Mr Robbins:

Mr Robbins might also like to know that many people did phone in during that weekend to express their views on the arrogant, machoistic way the local police conduct themselves. Such as, dubious searches that take place. Due to legal advice none of these views were broadcast. Because of our very tight defamation laws in this country, there is no freedom of speech. Talking to many people after the events of that week it is very clear to me that the local police have little respect from everyday law abiding citizens in this community. I find that, very disturbing.

[24] In his response to Ms Bright’s complaint, Mr Storey included the comment he had broadcast about smoking marijuana.

“If you are partial to a joint, how about joining me tomorrow morning on air, in protest at the way the police can come into our community, spray toxic spray on and around our land and treat us like common criminals, it’s bloody outrageous, so light up a big dubie tomorrow if you’re that way inclined, at 10.30 tomorrow morning, but please first ask the owner of the bag if it’s ok to help yourself. And remember The Beach does not condone the use of marijuana, we do however condone adults to behave in a responsible manner”.

[25] As for the privacy aspect of Ms Bright’s complaint, he replied that he was informing the public how the police invaded the privacy of residents. His only regret about the comment as to the presence of the police at the Claris Club was that “it wasn’t very witty or clever”.

[26] Mr Storey denied that most of the music portrayed contained foul language or violence and, repeating the point that the target audience was 25-year-olds plus, Mr Storey questioned whether each day’s broadcast should start with a statement to that effect.

Referrals to the Authority

[27] In addition to the privacy complaints which were made directly to the Authority, each complainant referred the complaint raising the other standards to the Authority. In his referral, Mr Robbins stated that the following aspects of the original complaint had not been addressed:

• encouraging listeners not to give the police assistance when asked
• the description of the police officers as “pigs”
• the absence of any balance to the interview with NORML.

[28] Mr Robbins said Mr Storey would have been aware that children were listening to the station as some businesses, through lack of choice, used it as background music. Radio reception, he insisted, was limited for many. He concluded:

Mr Storey had a grievance with the police that he chose to air publicly with no regard to the standards that he must adhere. I chose the word “manic” carefully. By his own admission he was “lighting up a toke” during the broadcast and his manner became increasingly abusive. He lost control.

That he believes using drugs on air, supporting their use, and using obscene language is “the real world” does not absolve him from his responsibilities as a broadcaster.

I hope you can listen to the tapes for the period of my complaint. You will see that my complaint is conservative. I believe you will be saddened when you hear the effects of his drug use no matter what your opinions on the subject might be.

[29] In her referral, Ms Bright also said that Mr Storey had not responded to the complaint about his reference to “pigs” at “his watering hole”. Further, Mr Storey:

• had not acknowledged that growing and smoking marijuana was illegal
• that the police were just doing their job
• that the Island population did not start at 25 years and the station should be more “user friendly”.

Broadcaster’s Response to the Authority

[30] Mr Storey stated that he had nothing further to say.

Authority's Determination

[31] The members of the Authority have listened to a tape of part of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaints without a formal hearing. The complainants have complained about a wide range of matters. The Authority has been supplied with a tape of only parts of the broadcast complained about. Accordingly, it has reached decisions only on those complaints that are based on broadcast content that the Authority has heard on the tape or that the broadcaster has admitted.

[32] In mid March 2004, a number of police officers visited Great Barrier Island. They were involved in spraying cannabis plants, and interviewing and arresting some Island residents for offences involving the cultivation and possession of marijuana. One of the residents arrested was Tony Storey, the operator of the local radio station, The Beach 94.6FM. He expressed his indignation at the police actions in broadcasts on 19 and 20 March 2004. The Island has two resident constables and the spouse of each complained about a number of aspects of the broadcasts. Mrs Bright stated explicitly that she was also complaining as a mother. Mr Storey provided the Authority with an audio tape of some 20 minutes which contained some of the broadcasts on 19 and 20 March. One of the complainants provided a 30 minute tape which covered some of the same material and included some additional material. The complaints referred to some of the language used by Mr Storey on air. While neither tape included the specific comments, Mr Storey acknowledged that he had used a number of the words complained about (see paragraph [36]).

[33] Each complaint raised a number of broadcasting standards. Both alleged the broadcast involved a breach of privacy and these complaints were made directly to the Authority. The other complaints, raising a number of standards, were referred to the Authority under s.8(1)(a) of the Act when the complainants were dissatisfied with the broadcaster’s response.

[34] The Authority notes that, under s.6(1)(c) of the Broadcasting Act, broadcasters are required to have a process in place to deal with formal complaints. It is clear that The Beach had no process in place to deal with the formal complaints which are the subject of these complaints.

Principle 1 (good taste and decency)

[35] The Authority upholds two aspects of the complaints as a breach of the good taste and decency requirement in Principle 1; the complaints about the language used by Mr Storey to describe the police during the early evening of Friday 19 March, and the complaints about the lyrics of two songs, of which at least one was played on Saturday morning.

[36] The complainants contended that Mr Storey used the words “fuck right off” and “fuckwits” when talking about the police. The Authority does not have a tape of the comments. However, Mr Storey admitted using on air the word “fuck” angrily and in relation to the police, commenting that his experience with the police had left “a very bad taste in [his] mouth”. He also admitted that he had probably referred on air to the “short arse bastard” who had arrested him.

[37] The Authority is of the opinion that the use of such language at a time when children may well be listening contravenes Principle 1.

[38] At 8.33am on Saturday 20 March, Mr Storey played the song which he said was titled “I’m a cool motherfucker”. The Authority has listened to a tape of the song and it uses the phrase “sexy motherfucker” repetitively. The tape provided by the complainants also included a hip hop song which included the regular use of the words “fuck”, “motherfucker” and “motherfucking”. The time at which it was broadcast was not noted.

[39] The Authority notes that Mr Storey advised that the station targeted the 25-year-plus market and he wondered whether he should broadcast a regular statement to that effect. Mr Storey also commented that the younger Island residents were able to listen to Auckland radio stations which targeted children. The Authority notes that one of the complainants stated that, because of the reception at their home, they were unable to receive any other stations.

[40] The Authority acknowledges that the Radio Code does not divide the day into listening hours by age as occurs in the Television Code. It also acknowledges that, given the plethora of radio stations in Auckland, each station targets listeners within well-defined demographics. However, as it has pointed out on previous occasions, radio stations cannot exclude non-targeted listeners. The Authority has upheld complaints on previous occasions about the adult focus of programmes which are broadcast at a time when children may well be listening. Accordingly, in view of its past rulings, it upholds as a breach of Principle 1 the complaints about the broadcast of songs containing the word “fuck” and its derivatives before school hours in the morning, in the late afternoon and early evening, and during the day at weekends. The Authority finds that the broadcast of the song “I’m a cool motherfucker” at those times contravenes Principle 1.

Principle 2 (law and order)

[41] In response to the complaint that the station had breached the standard by encouraging people to visit the station and smoke marijuana, Mr Storey provided the script of the statement he had broadcast (see paragraph [23]). He did not say that he would smoke marijuana and, he added, The Beach, while condoning responsible behaviour by adults, did not condone the use of marijuana.

[42] In view of the explicit encouragement for listeners to break the law, and considering the disclaimer to be more for effect than a genuine statement against the use of marijuana, the Authority finds that the invitation, indeed exhortation, to smoke marijuana amounts to a breach of Principle 2.

[43] The complainants also contended that the broadcaster’s advice to listeners not to assist the police when help was next sought also contravened Principle 2. The Authority is aware that community co-operation is an essential part of policing, especially in communities such as Great Barrier Island. Nevertheless, it also accepts that some within the community may decline to assist and might encourage others to adopt a similar attitude. Such action is not encouraging criminal behaviour. The Authority does not uphold the complaints about comments urging non-cooperation with the Police as a breach of the Principle.

Principle 3 (Privacy)

[44] The complainants argued that the reference to one named constable in an aeroplane during the raid, and the reference to the presence of police officers and members of their families in the Claris Club, amounted to a breach of privacy. The Authority disagrees. A breach of the privacy principle involves in essence either the disclosure of a private fact or behaviour by the broadcaster which amounts to prying. There is no evidence of either and, accordingly, the Authority declines to uphold both privacy complaints.

Principle 4 (Balance)

[45] The interview with the NORML spokesperson was the focus of the balance complaints. The complainants argued that the interview was unbalanced as no one was interviewed to present the other side of the argument. The Authority notes that the balance complaint assumes that the main thrust of the NORML spokesperson’s comments was to advocate the decriminalisation of cannabis.

[46] While support for and advocacy of decriminalisation were implicit in some of the comments which were broadcast, the Authority points out that the main focus of the interview was the possible dangers of the spray which had been used. The spokesperson said that the police denied it was toxic, but he put forward the contrary view. In these circumstances, the Authority regards the interview as mainly involving the provision of information: the spokesperson warned listeners, whose water supply might have been affected by the spray, of some possible dangers. Advising listeners that the police denied that the spray was toxic, in the Authority’s view, provided the appropriate balance. It declines to uphold the Standard 4 aspect.

Principle 7 (children’s interests and violent themes)

[47] The Authority considers that these aspects of the complaints, which focused on the song lyrics and the language used by Mr Storey to describe the police, which have already been considered under Principle 1, are addressed more appropriately under that Principle, that is, as questions of good taste and decency. Accordingly, its ruling that the broadcast breached Principle 1 includes these concerns.

Principle 7 (denigration)

[48] Some of the language used in reference to the police was not acceptable and thus, also, has been addressed under Principle 1. While, as noted above, some of the general comments about the police action were not helpful to the police or to police-community relations, the Authority does not accept that the comments reached the high level of denigration required to amount to a breach of Guideline 7a.

Conclusion

[49] The Authority notes that both complainants were quite specific about the standards which they alleged the broadcasts contravened and it observes that neither complainant raised Principle 5 of the Radio Code. Principle 5 requires people referred to in broadcasts to be dealt with fairly and justly. Had it been raised by the complainants, the Authority may well have upheld a complaint under Principle 5 on the basis that aspects of the broadcasts were unfair to the police. Further, the Authority believes that aspects of the broadcasts could be described as an abuse of the air waves. Broadcasters often are influential, and this is especially so in smaller communities. It is an influence which must be exercised responsibly. That responsibility was missing on this occasion.

[50] For the avoidance of doubt, the Authority records that it has given full weight to the provisions in the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons, the Authority upholds the complaints that broadcasts by The Beach 94.6FM on 19 and 20 March 2004 breached Principles 1 and 2 of the Radio Code of Broadcasting Practice.  It declines to uphold the other aspects of the complaints.

[51] Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.

[52] Mr Robbins submitted that Beach 94.6FM should be banned from broadcasting, that it should apologise for the language which had been used and should pay the Authority’s costs. He also expressed concern that the station had not provided full tapes of the broadcasts complained about to the Authority, and queried whether the station had met its obligations regarding the provision of tapes.

[53] Ms Bright sought the “maximum” penalty, which would include letters of apology to all who had been offended. She asserted, as she had predicted, that Mr Storey had not supplied full audio tapes in compliance with the Radio Code of Broadcasting Practice.

[54] On behalf of 94.6FM, Tony Storey contended that the broadcasts had, with humour, tried to raise a health and safety issue. The invite to “light up a doobie”, he insisted, was said “tongue in cheek”. He acknowledged that the use of the word "fuck” was inappropriate when children might be listening, adding that “measures will be taken to prevent this from occurring again.”

[55] Mr Storey also questioned whether the Authority was impartial. Describing the Authority as a “government department”, he noted that it had been dealing with a complaint from another government department – the police.

[56] In response to the comments about the incomplete tapes provided, the Authority notes, first, that the broadcaster complied with the provision in Principle 8 of the Radio Code. Principle 8 does not require broadcasters to supply tapes of continuity comments, and such comments were the subject of many of the complaints on this occasion. The broadcaster provided a tape of the interview with the NORML spokesperson. Secondly, the Authority observes that Principle 8 covers a matter of process, rather than a matter of broadcasting standards, with the result that the Principle is not amenable to the Authority’s determination.

[57] Contrary to the broadcaster’s assumption, the Authority is not a government department. It is an independent Crown entity. In its determination of complaints, the Authority has no liaison with any other organisation – governmental, private, or political – other than as a party, either as a complainant or broadcaster, to the complaint.

[58] Having considered the submissions, and taking into account that the broadcaster’s role includes participation in a relatively isolated community, the Authority concludes that an Order is appropriate. The Authority considers that the broadcast of a statement is the appropriate action, and that the statement should represent a full summary of the Authority’s decision. Further, in light of the fact that some of the language used was inappropriate at the times it was broadcast, the Authority considers that the statement should include an apology to listeners for that breach of standards.

[59] Furthermore, the complaints related to broadcasts on Friday evening and Saturday morning. The Authority decides that the statement, including the apology, should be broadcast on two occasions – once on Friday evening and again on Saturday morning.

Order

Pursuant to s.13(1) of the Broadcasting Act 1989, the Authority orders The Beach 94.6FM to broadcast, within one month of the date of this decision, a full statement summarising the Authority’s decision that explains why the complaints were upheld as breaches of Principles 1 and 2 of the Radio Code of Broadcasting Practice, and which includes an apology to the listeners who might have heard the language which the Authority found in breach of Principle 1. The statement shall be approved by the Authority and be broadcast on dates and at times to be approved by the Authority.

The Authority draws the broadcaster’s attention to the requirements in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority and the complainants of the manner in which the above order has been complied with. Compliance with the order involves providing the Authority with a tape of the statement after it has been broadcast.

Signed for and on behalf of the Authority

Joanne Morris
Chair
2 September 2004

Appendix

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

Complaints from Dennis Robbins

1. Dennis Robbins’ Informal Complaint to the Broadcasting Standards Authority
   – 22 and 24 March 2004
2. Mr Robbins’ Privacy Complaint to the Broadcasting Standards Authority – 24 March 2004
3. The Beach 94.6FM’s Acknowledgement of Complaints – 1 April 2004
4. The Beach 94.6FM’s Response to the Complaints – undated
5. Mr Robbins’ Referral of Standards Complaints to the Broadcasting Standards Authority
   – 6 May 2004
6. The Beach 94.6FM’s Response to the Authority – 12 May 2004

Complaints from Leanne Bright

1. Leanne Bright’s Formal Complaint to The Beach 94.6FM and the Broadcasting Standards Authority – 23 March 2004
2. The Beach 94.6FM’s Acknowledgement of Complaints – 1 April 2004
3. Ms Bright’s Correspondence with the Broadcasting Standards Authority – 1 April 2004
4. The Beach 94.6FM’s Response to the Authority – 2 April 2004
5. Ms Bright’s Reply – 3 April 2004
6. The Beach 94.6FM’s Response to the Complaints – undated
7. Ms Bright’s Referral to the Broadcasting Standards Authority – 11 and 13 May 2004
8. The Beach 94.6FM’s Response to the Authority – 12 May 2004

Submissions on Orders

1. Mr Robbins’ Submission on Orders – 4 August 2004
2. Ms Bright’s Submission on Orders – 16 August 2004
3. The Beach 94.6FM’s Submission on Orders – 10 August 2004