Sharp and The RadioWorks Ltd - 2003-044
- J H McGregor
- Tapu Misa
- R Bryant
- M D Sharp
ProgrammeThe Racing Show
BroadcasterThe RadioWorks Ltd
Channel/StationRadio Pacific # 3
The Racing Show – comment that caller should "stick his head up his arse" – offensive language
Principle 1 and Guideline 1a – offensive remark – breach – uphold
This headnote does not form part of the decision.
 The Racing Show was broadcast on Radio Pacific on Friday 27 December 2002. During an on-air discussion between the host and a caller at 4.30pm the caller alleged that the host had favoured a personal friend when he had selected the winners of the "$50 caller bets". A disagreement developed, and in response to the allegation, the host said to the caller "oh, go and stick your head up your arse".
 M D Sharp complained to The RadioWorks Ltd, the broadcaster, that the comment was objectionable and obscene.
 When the broadcaster failed to respond to his formal complaint, Mr Sharp referred it to the Broadcasting Standards Authority under s.8(1)(b) of the Broadcasting Act 1989.
 In its response to the Authority, the broadcaster stated that it did not believe that there had been a breach of broadcasting standards, although it did acknowledge that the language used was unnecessary.
For the reasons below, the Authority upholds the complaint.
 The members of the Authority have listened to an audio tape of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The Racing Show was broadcast on Radio Pacific on Friday 27 December 2002. A discussion between the host and a caller at 4.30pm developed into a dispute about the integrity of the selection process for the winners of the "$50 caller bets".
 The caller alleged that the host had favoured a personal friend when he [the host] selected the winners of the "$50 caller bets". The caller also suggested that the allegation had been confirmed by other people. The host vigorously denied the allegation and, while terminating the call, said to the caller "oh, go and stick your head up your arse".
 Mr Sharp complained to the broadcaster that the comment was objectionable and obscene.
The Referral to the Broadcasting Standards Authority
 As Mr Sharp failed to receive a response to his formal complaint from the broadcaster within 20 working days, he referred his complaint to the Authority.
 After the Authority referred the complaint to The RadioWorks, the broadcaster assessed the complaint under Principle 1 of the Radio Code of Broadcasting Practice, which provides :
In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.
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.
The Broadcaster’s Response to the Authority
 The RadioWorks stated that while it acknowledged that the language used by the host was unnecessary, there had not been a breach of Principle 1.
 The RadioWorks also stated that it had spoken to the host concerned, and he had agreed to refrain from using such "colloquial expressions" in the future.
The Authority’s Determination
13] The Authority expresses its concern that the broadcaster failed to respond to Mr Sharp’s letter which was clearly headed "Formal Complaint". The broadcaster also failed to provide the Authority with an explanation for the lapse. Section 5(a) of the Broadcasting Act 1989 requires a broadcaster to establish a proper procedure to deal with formal complaints. It is the broadcaster’s responsibility under the legislation to ensure that an appropriate process is established, and complied with. While it does not intend to take further action on this occasion, the Authority reminds the broadcaster of its obligations under the Act and advises that such lapses are unacceptable.
 When the Authority determines a complaint that a broadcast contravenes Principle 1 of the Radio Code of Broadcasting Practice, the Authority is required to determine whether the material complained about breaches currently accepted standards of good taste and decency, taking into account the context of the broadcast. The context is relevant, but does not determine whether the programme breached the principle. Accordingly the Authority has considered the context in which the comment complained about was broadcast.
 The Authority is of the view that, in this respect, it is appropriate to consider the comment made by the host of The Racing Show, to the caller, in the context of the whole exchange.
 One particular contextual factor was the provocative manner in which the caller persisted with allegations of dishonesty involving the host’s selection of winners of the programme’s "$50 caller bets". In the Authority’s view, the allegations were in the nature of a personal attack and were clearly intended to offend.
 However, the Authority is also aware of a number of acceptable measures available to a host to deal with belligerent callers, but observes that, in this instance, the host failed to utilise any of them. While the Authority accepts that a host is entitled to terminate a call in a robust manner, it is evident that during this particular exchange, the host over-reacted.
 The Authority records that it does not take issue with the use of colloquial expressions as such, particularly in the domain of radio talkback, but with the use of offensive expressions. In the Authority’s opinion, regardless of the provocation, the host’s response in this instance was both unacceptable and offensive. Accordingly, the Authority upholds a breach of Principle 1 of the Radio Code.
 The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". For the reasons given in Decision No. 2002-071/072, the Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion. For the reasons given in this decision, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act.
For the above reasons, the Authority upholds the complaint that the comment during the broadcast by The RadioWorks of the The Racing Show on Friday 27 December 2002 breached Principle 1 of the Radio Code of Broadcasting Practice.
 Having upheld a complaint, the Authority may make orders under ss.13 and 16 of the Broadcasting Act 1989. Having considered all the circumstances of the complaint and taking into account the context of the breach, the Authority does not consider that an order is appropriate.
Signed for and on behalf of the Authority
Dr Judy McGregor
22 May 2003
The following correspondence was received and considered by the Authority when it determined this complaint:
- Mr Sharp’s Complaint to The RadioWorks Ltd – 13 January 2003
- Mr Sharp’s Referral to the Broadcasting Standards Authority – 3 March 2003
- The RadioWorks' Response to the Authority – 25 March 2003
- Mr Sharp’s Final Comment – 19 May 2003