BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

Auckland’s controversial Britomart development was the subject of discussion on John Banks’ talkback programme on Radio Pacific broadcast on 30 July 1999 between 6.30–7.30am. Mr Banks, an opponent of the project, suggested that the developer, Mr Lu, should return to his home country in Asia. He said "we don’t want to pour our money down your loo Mr Lu."

Savoy Equities Ltd, on behalf of Mr Lu, complained to Radio Pacific Ltd, the broadcaster, that the comments made were personally abusive and insulting, and incited hostility towards Chinese and Singaporeans. It contended that the host’s remarks were aggravated by what it called his ignorance of the facts.

Radio Pacific responded that Mr Lu had been offered the opportunity to respond on-air at the time, but had declined. It advised that it found no breach of the Radio Code of Broadcasting Practice, nor the Authority’s privacy principles.

Dissatisfied with Radio Pacific’s response, Savoy Equities, on Mr Lu’s behalf, referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority upholds the complaint that the broadcast was unfair.

Decision

The members of the Authority have listened to a tape of the broadcast complained about and have read the transcripts. They have also read the correspondence which is listed in the Appendix. On this occasion, the Authority determines the complaint without a formal hearing.

The proposed Britomart development in Auckland was the subject of discussion after the Auckland City Council decided it would not pay out an extra $15 million to help fund the cost of delays to the project. Talkback host John Banks expressed his approval of the Council’s decision in his programme broadcast on Radio Pacific on 30 July 1999 between 6.30–7.30am. Mr Banks, an opponent of the project, suggested that the developer, Mr Lu, should return to his own country because he was not wanted here.

Savoy Equities complained on Mr Lu’s behalf that the broadcasts were personally abusive and insulting, and incited contempt and hostility towards Chinese and Singaporeans. It complained that the comments made by the programme’s host, Mr Banks, were "aggravated by his ignorance of the facts" and "his total insensitivity to other race and cultural perspectives."

As examples of some of the inaccuracies, Savoy Equities provided a letter from Mr Lu in which he said that he was a New Zealand citizen, having lived here since 1985. Secondly, he said that he was not the developer of the Britomart project, as suggested by Mr Banks. He also objected to the reference to "rich and powerful Chinese property developers" which he maintained was calculated to incite racial disharmony and racial harassment of Chinese. Such remarks, he argued, were discriminatory.

In its very brief response, Radio Pacific advised that it had found no breach of broadcasting standards or the Authority’s privacy principles. It therefore declined to uphold the complaint. It noted that at the time Mr Lu – like any other listener – had the opportunity to respond on-air to Mr Banks, but had declined to appear.

Savoy Equities referred the complaint to the Authority advising that it was dissatisfied with the manner in which Radio Pacific had dealt with the complaint, and that its reply had given no details of its investigation, nor any reasons for its decision. The station’s claim that Mr Lu had been offered the opportunity to respond on-air but had declined was, it said, "interesting and misleading". It advised that Mr Lu was never given the opportunity to respond on-air at the time of the broadcast and that he was not given that opportunity until one to two days after the broadcast. According to the company, one of its directors had contacted the programme’s producer to express his concerns about the comments broadcast and asked that those concerns be conveyed to Mr Banks. The producer reported back that Mr Banks had been "happy with what he had said". A day later the producer had spoken to Mr Lu directly and repeated that Mr Banks had been "comfortable with what he had said". Savoy Equities reported that he had told Mr Lu that although he was the producer, he could not control Mr Banks. The producer then asked Mr Lu if he wanted to speak to Mr Banks on air, it continued. Mr Lu declined because he did not feel that he would be able to change Mr Banks’ mind, and further that he was likely to repeat his "inappropriate beliefs" and racist remarks. In addition, Savoy Equities noted, Mr Lu had by then complained to the Race Relations Office and felt it was therefore inappropriate to debate the matter on radio. As final points, the company noted that many of the comments made by Mr Banks had been factually incorrect but also had been expressed in such a way as to incite racial disharmony and harassment, and to discriminate on prohibited grounds. It also noted that although an opportunity had been given to Mr Banks to discuss the matter privately with Mr Lu, he had not done so, but had simply stated through his producer that he saw nothing wrong with what he had said.

Savoy Equities complained that a number of broadcasting standards were breached by the programme. The comparable standards in the new Radio Code of Broadcasting Practice read:

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 5

In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.

Principle 6

In the preparation and presentation of news and current affairs programmes, broadcasters are required to be truthful and accurate on points of fact.

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.

In its response to the Authority, Radio Pacific emphasised that it was a talkback station which encouraged listeners to call at any time to express their opinions on any matter under the banner of "The Power of Free Speech". Talkback hosts, it continued, were also encouraged to express their opinions on all topics.

It then turned to the standards cited. It dealt first with the complaint under Principle 6. It responded that the John Banks Breakfast Show was neither a news nor a current affairs programme but was one in which hosts and listeners were encouraged to voice their opinions. It declined to uphold this aspect.

To the complaint that Mr Lu had not been dealt with fairly, (Principle 5), Radio Pacific responded that Mr Banks had been voicing his opinion. It argued that Mr Lu had every opportunity subsequent to the broadcast to contact Mr Banks on-air to debate the topic and had been encouraged to do so by the programme’s producer.

As for the complaint that the programme was unbalanced, Radio Pacific responded that it could not identify which principle of the revised Radio Code had allegedly been breached. It asked that the principle be stated before it commented further.

The final aspect of the complaint related to Principle 7, Guideline 7a. Radio Pacific argued that in stating that Mr Lu could go back to Shanghai, and referring to rich and powerful Chinese developers, Mr Banks had not been encouraging discrimination or denigration. He was, argued Radio Pacific, stating an opinion and a fact. It added that it encouraged its hosts to hold opinions and be outspoken.

In its final comment, Savoy Equities took issue with the claim that freedom of speech entitled Radio Pacific to express whatever opinions it wished, regardless of the truth, and regardless of the consequences.

It acknowledged Mr Banks’ right to believe whatever he liked, but argued that he did not have the right to force his beliefs on others. Further, it argued, in a democratic society, freedom of speech was tempered by laws and codes for good reason. Savoy Equities said it believed that because of broadcasters’ power over the masses, they had added responsibilities which were not unfettered. It noted that Radio Pacific had not denied that the statements complained about were false and inaccurate. It had only sought to justify them on the basis that there was an unfettered right to freedom of speech.

To Radio Pacific’s point that Principle 6 applied only to news and current affairs programmes, Savoy Equities responded that it had assumed there was a standard comparable to the Television Code, which required a programme to be truthful and accurate on points of fact. It then asked what the definition of "current affairs programme" was, and suggested that Mr Banks’ programme fell within the ambit of such a definition.

Savoy Equities rejected Radio Pacific’s claim that Mr Lu had an opportunity to respond on-air. It pointed out that he had not been pre-warned nor was he contacted at the time of the broadcast. He had only become aware of the broadcast at a later date and had declined to debate the matter on-air for reasons it had already explained. Savoy Equities claimed that Radio Pacific and Mr Banks had aggravated the matter by defending the broadcast as free speech. It noted that neither the host nor the station showed any remorse, and that they refused to apologise.

As for the standard relating to balance, Savoy Equities maintained that it was evident from reading the transcript of the programme that Mr Lu had not been dealt with fairly, impartially and in a balanced manner. The host had broadcast falsehoods and inaccuracies and had incited racial disharmony, it argued. In its view, the broadcaster had also denigrated Mr Lu.

On the standard relating to discrimination, Savoy Equities referred to its earlier correspondence and argued that Mr Banks’ comments were calculated to encourage denigration and discrimination against Asians, particularly Chinese. It took issue with Radio Pacific’s response that Mr Banks had been stating a fact when he said Mr Lu should go back to his own country. Savoy Equities pointed out that Mr Lu was a New Zealand citizen, and that he was not born, nor had he ever lived, in Shanghai. Finally, it pointed out, the developer of the Britomart project was a New Zealand company, and not Mr Lu.

As a further point, Savoy Equities argued that the station’s ability to encourage its hosts to hold opinions and be outspoken, did not mean that it had an unfettered right to broadcast matters which were false, inaccurate, or denigrated and discriminated against others. It concluded:

Broadcasters have also because of their immense power, obligations, responsibilities and duties to society which should be respected and if they breach these then they should be accountable.

The Authority’s Findings

The Authority first deals with the concern raised by the complainant about the adequacy of Radio Pacific’s response to the complaint which, it noted, had given no details of its investigation nor the reasons for its decision. The Authority reminds Radio Pacific that it has a responsibility under s.5 and s.6 of the Broadcasting Act to establish a proper procedure to deal with complaints and to give reasons for its decisions. It also expresses its concern at the station’s apparent lack of familiarity with the revised Radio Code of Broadcasting Practice, as demonstrated by its inability to recognise that the requirement for balance is embodied in Principle 4.

In the Authority’s view, the essence of the complaint is that Mr Lu was treated unfairly by the broadcast, first because of the remarks made about him and secondly because he was not given the opportunity to respond and put an opposing view. The station has argued that the host was exercising his right to free speech, and that Mr Lu was given an opportunity to be heard.

The Authority acknowledges that the Britomart development is of interest to Aucklanders and that it has been surrounded in controversy since its inception. Mr Banks, the programme’s host, clearly has strong views on the subject, and it is apparent those views are shared by others. It was topical on the day of the broadcast because the Auckland City Council had, by a narrow margin, voted not to provide a further $15 million for the project.

In that context, the host’s comments are assessed. His remarks were focused on the developer Mr Lu who, he said, was not wanted in New Zealand because the project’s cost had "spiralled in price" and was now expected to cost ratepayers $164 million. The Authority notes that the issue quickly became personalised when the host appeared to attribute responsibility for the cost overruns to Mr Lu personally.

Under Principle 5, broadcasters are required to deal fairly with any person taking part or referred to in the programme. The Authority therefore examines the context of the broadcast to decide whether it was unfair. It notes first that the talkback format provides an opportunity for listeners to participate and thus provide other points of view. Indeed, had he known he was to be the subject of the broadcast, it would have been open for Mr Lu to phone in and correct some of the matters about which he was concerned. However, he did not know of the broadcast at the time. The Authority considers there is an element of unfairness here, and that it was compounded when later the company, on Mr Lu’s behalf, complained to the station. At that time, the company was told that the host "was comfortable with what he said" and Mr Lu was offered the opportunity to speak to the host on air. The Authority notes the host’s stance on the issue and understands the reasons why Mr Lu declined this offer and why he considered it would have been extremely difficult to receive a fair hearing. In effect, the Authority concludes, Mr Lu was not given a fair opportunity to be heard or to respond to the host’s criticisms of his role in the project, or to correct what he maintained were factual errors about the broadcast. Accordingly, it finds a breach of Principle 5.

The other aspects of the complaint were that the broadcast was unbalanced, inaccurate and encouraged denigration of and discrimination against people of Chinese origin. It is the Authority’s view that these matters should be subsumed under Principle 5’s requirement to deal fairly with people referred to. Had the broadcast sought comment from the developers – in fairness to Mr Lu – the matter of balance would have been addressed, as would the requirement for accuracy. The potentially racist remarks, it considers, arose in the context of the host’s inaccurate knowledge of Mr Lu, and his decision to personalise the issue. It therefore concludes that the gravamen of the complaint is addressed under Principle 5, which it has upheld for the reasons given.

For the reasons set forth above, the Authority upholds the complaint that a broadcast on Radio Pacific Ltd on 30 July 1999 between 6.30–7.30am breached Principle 5 of the Radio Code of Broadcasting Practice.

Having upheld a complaint, the Authority may make orders under s.13 and s.16 of the Broadcasting Act 1989. It invited the parties to make submissions on penalty.

The Authority has considered those submissions. It received from the broadcaster a comprehensive statement as to the steps it intends to take in its future dealings with complaints, and is reassured that proper processes will be established. It therefore makes no order as to costs. However, in light of the manner in which the debate was personalised, and the inherent unfairness of the host’s remarks, it makes the following order:

Order

Pursuant to s.13 of the Broadcasting Act 1989, the Authority orders Radio Pacific Ltd to broadcast a statement, to be approved by the Authority, summarising this decision. That statement shall be broadcast within one month of the date of this decision between 7.20–7.40am on a date to be approved by the Authority. The Authority also requests that a tape of the statement be provided.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
11 November 1999

Appendix

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

1.    Savoy Equities Ltd’s Complaint to Radio Pacific Ltd – 2 August 1999

2.    Radio Pacific’s Response to the Formal Complaint – 18 August 1999

3.    Savoy Equities Ltd’s Referral to the Broadcasting Standards Authority
       – 20 August 1999

4.    Radio Pacific’s Response to the Authority – 1 September 1999

5.    Savoy Equities Ltd’s Final Comment – 13 September 1999

6.    Savoy Equities Ltd’s Submission on Penalty – 27 October 1999

7.    Radio Pacific’s Submissions on Penalty – 2 November 1999