BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

In June, October and November 2016, Sikh radio station Radio Virsa broadcast four programmes in Punjabi on 107FM. The programmes included host and talkback commentary about a wide range of issues. The Authority received a complaint that these broadcasts contained threatening and coarse language and themes, and offensive statements were made in relation to a number of named individuals in the Sikh community, including the complainant. The Authority found that aspects of these broadcasts were in breach of broadcasting standards. The Authority was particularly concerned that offensive comments were made about named individuals in the local community, which resulted in the individuals’ unfair treatment and, in one instance, a breach of privacy. The Authority also found aspects of the broadcasts, which contained comments about women, were unacceptable in New Zealand society and in breach of the good taste and decency standard. The Authority did not uphold the complaint under the remaining broadcasting standards.

Upheld: Good Taste and Decency, Privacy, Fairness

Not Upheld: Programme Information, Children’s Interests, Violence, Law and Order, Discrimination and Denigration, Alcohol, Balance, Accuracy

Orders: Section 13(1)(a) broadcast statement 

Introduction

[1]  Radio Virsa broadcast the following four programmes in Punjabi on 107FM:

• Bhakhde Masley – 19 June 2016 (three extracts subject to complaint)
• Bhakhde Masley – 3 October 2016 (11am – midday)
• Bhakhde Masley – 3 October 2016 (midday onwards)
• Sikh Patshahi – 9 November 2016

[2]  Verpal Singh complained about a variety of issues in relation to these broadcasts, alleging that Radio Virsa and its hosts were broadcasting lies, threats, abuse and insults about him and about other individuals in the local Sikh/Indian community. He also identified statements that he alleged contained offensive and indecent language, and denigrated women.

[3]  The issues raised in Mr Singh’s complaint are whether the broadcasts breached the broadcasting standards set out in the Radio Code of Broadcasting Practice. We consider the good taste and decency, fairness, privacy, law and order, discrimination and denigration, and violence standards to be the most applicable to Mr Singh’s complaint. In particular, we consider the most problematic aspects of the broadcasts are those that make derogatory comments about named individuals and women.

[4]  We set out the standards applicable to each broadcast below.

Information considered by the Authority

[5]  As the entirety of the four programmes complained about amounted to approximately 11 hours of audio recording and were broadcast in Punjabi, the Authority invited the complainant to identify a representative sample of extracts from the broadcasts that illustrated the matters complained about. The broadcaster also selected relevant extracts which it wished the Authority to consider. The Authority then obtained independent transcriptions and translations of these broadcast extracts, and invited the parties’ submissions on those translations.

[6]  The Authority was assisted in its determination of this complaint by Dr Ashraf Choudhary, who provided external independent cultural and contextual advice about the comments made in the broadcasts and the issues raised in the complaint. Both parties supported the appointment of Dr Choudhary as an independent external advisor. We are grateful to Dr Choudhary for his assistance in this matter.

[7]  In making its determination on this complaint, the members of the Authority have read the independent translations of the broadcasts complained about, the parties’ submissions on those translations, and the correspondence listed in the Appendix.

Background

[8]  Radio Virsa is a small Sikh radio station based in Papatoetoe, Auckland. It broadcasts mainly to the Papatoetoe Sikh community. It is our understanding that Radio Virsa promotes and preaches a strict interpretation of Sikh religion and culture.

[9]  While Radio Virsa reaches a relatively small number of listeners, limited to the Papatoetoe suburb of Auckland, we understand it also reaches a wider audience through the use of other digital platforms, such as its Facebook page (which to date has over 7,000 likes and followers).

[10]  We understand that the complainant was a co-founder of Radio Virsa, but that he and four others parted ways with Radio Virsa in November 2015. As such, this matter brings into play complex cultural and religious considerations and a personal dispute between the parties, as well as broadcasting standards issues. Our role is limited to assessing whether the nominated broadcasts have breached broadcasting standards in New Zealand.

[11]  However, while it is not a matter for this Authority, we nevertheless urge the parties to take steps to resolve their personal differences in an appropriate manner.

[12]  As we will expand upon below, we have found that aspects of these broadcasts contained divisive language, offensive comments and were likely to have harmed named individuals in the community. We recognise that the subject matter of the broadcasts may raise political and religious perspectives which relate to the Sikh community.

[13]  When we consider a complaint of this nature, we are conscious that we must apply New Zealand standards, and the expectations and values of the New Zealand community. We also recognise that our New Zealand community comprises a wide range of cultures, ethnicities and beliefs. New Zealand values these different cultures. However, these different views and cultures also need to co-exist compatibly together. Our general approach has been that we cannot limit broadcasters’ freedom of expression by taking into account particular sensitivities, and instead we must look to the New Zealand community as a whole when determining whether broadcasting standards have been breached.

[14]  We also recognise that in this case the broadcaster and the programmes complained about are aimed at a specific community group. We acknowledge that the particular expectations of Radio Virsa’s target audience, a sector of the New Zealand Sikh community, may differ to the expectations of a wider, and potentially non-religious, audience. We are advised that this Sikh community may be particularly sensitive to some of the language used in these broadcasts, or to the allegations made in relation to named individuals.

[15]  While we therefore consider that we must apply broadcasting standards in this case that reflect the expectations and norms of the wider New Zealand community, the particular views or expectations of the target audience or community will be important in our consideration of the context of the broadcasts. Those community-specific views are important to our assessment of whether the content of these broadcasts went outside audience expectations. We have been assisted in this aspect of our task by the submissions from the parties.

[16]  In some instances below we have exercised caution and given the broadcaster the benefit of the doubt, where we are alerted to particular cultural contextual factors. Notwithstanding this, to assist Radio Virsa to better understand the New Zealand context, the staff of the Authority will provide an opportunity for Radio Virsa staff to attend a workshop on the broadcasting standards in New Zealand to assist them to understand and meet their obligations in the wider New Zealand community.

Overview of findings and freedom of expression

[17]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. The right we have to express ourselves in the way we choose, and to receive information, is a fundamental freedom, but it is not an absolute freedom. It is nevertheless an important right, and we may only interfere and uphold complaints where the limitation on the right is reasonable and justified in a free and democratic society.¹

[18]  Generally, religious and cultural expression is a valuable and legitimate exercise of the right to free speech, so long as it adheres to broadcasting standards. Broadcasting standards impose some justified limitations on the right to freedom of expression that are designed to protect audiences from harm. Where the standards are not met, there is greater likelihood that harm may result. Therefore, while freedom of expression is a fundamental right and highly valued, it is not an absolute right and is subject to justified limits. Our task is to weigh the value of the broadcasts (and the importance of the expression) against the level of actual or potential harm that might be caused.

[19]  As we have noted above, these broadcasts contained divisive and coarse language, and aspects of the broadcasts were harmful to Radio Virsa’s listeners, and to members of the community generally.

[20]  We find particularly concerning that individuals within the community were named, in combination with derogatory or offensive comments made about those individuals. In our view the individuals commented on during these broadcasts were treated unfairly. We also note that inviting listeners to call in to the programme to give their opinion is insufficient to meet the requirements of the fairness standard.

[21]  We are also deeply concerned that, in some cases, private information was disclosed over which a named individual had a reasonable expectation of privacy. We consider that information should not have been a topic for discussion during a community-based radio broadcast.

[22]  We therefore find that aspects of these broadcasts were unacceptable in New Zealand society, and failed to meet broadcasting standards. In our view therefore, the harm to named individuals, as well as to Radio Virsa’s audiences generally, outweighed the broadcaster’s right to freedom of expression and listeners’ right to receive the broadcasts. We therefore uphold various aspects of Mr Singh’s complaint. We discuss in more detail our reasons for this finding below, and, for ease, have considered each broadcast, and the relevant broadcasting standards, in turn.

Bhakhde Masley – 19 June 2016: Extract A

The broadcast

[23] This extract contained a general discussion of what amounted to an ‘insult’ and featured the following statements:

• ‘A person who abuses another like this, who abuses others taking their mother/sister’s names, actually wants to rape subconsciously.’
• 'He wants to insult others by doing this because he lacks the capability to rape. That’s why he abuses, swears. When a man threatens, he actually wants to commit murder. If he gets the resources, he can kill. As he has not got them, he says “I will kill you”, “I will cut you to pieces”… “I will do this and that to your family”.’
• ‘The problem here is that the level of insulting practised by these people, who abuse us and threaten us, does not necessarily match our own yardstick’.

[24]  In our view, the key issues for consideration in relation to this segment were whether the hosts’ comments, comparing insults and abusive language to rape and murder, constituted acceptable language in terms of good taste and decency, and whether the broadcaster exercised adequate care when it came to the discussion of violence. We have therefore focused our analysis below on those standards.

The parties’ submissions

[25]  Mr Singh complained that the 19 June 2016 broadcast (as a whole, i.e. extracts A-C) was in breach of the following standards: good taste and decency, violence, law and order, discrimination and denigration and privacy.

[26]  In relation to this particular extract, Mr Singh submitted that:

• The item contained derogatory language against women.
• The item equated swearwords to the rape of mothers and sisters. 
• The item made threats against local Kiwi Sikhs.

[27]  Radio Virsa submitted that:

• Comparing swearing with rape in this context, while clearly disapproving of both, cannot possibly ‘denigrate’ women.
• The programme is a talkback programme concerned centrally with opinion, which is consistent with broadcasters’ right to freedom of expression. The fact the complainant disagreed with those opinions is not a valid ground of complaint.
• Mr Singh raised matters that are not subject to broadcasting standards, such as the alleged ‘psychopathic tendencies of the hosts’.

Our analysis

Did the broadcast threaten current norms of good taste and decency?

[28]  The purpose of the good taste and decency standard (Standard 1) is to protect audience members from listening to broadcasts that are likely to cause widespread undue offence or distress, or undermine widely shared community standards. Broadcasters should take effective steps to inform audiences of the nature of the programme, and enable listeners to regulate their own and their children’s listening behaviour.²

[29]  These comments were made in the context of a discussion about an article on ‘insults’. During this discussion, we are advised that the host gave an example of an offensive statement, which the host accurately described as, and is considered, abusive language. At the end of the segment, the host referred generally to people who made complaints about him, but did not refer to any specific individuals.

[30]  We acknowledge that the language used during this segment was coarse, and that the concepts discussed were distasteful and may have been offensive to some listeners.

[31]  However, more than a general sense of offensiveness is needed to reach the threshold for us to find a breach of broadcasting standards,³ and we are cautious in this instance about taking a literal translation of the discussion that took place during this broadcast, and transplanting it into the New Zealand context.

[32]  Taking this into account, we consider the segment subject to complaint was in the nature of commentary or analysis and talkback, and it does not appear to us that the offensive language was used in relation to specific individuals. We therefore find that in this case, while the comments (based on a literal translation) could be described as radical or extreme, in the particular context of the discussion, we do not consider the high threshold for finding a breach of Standard 1 was reached.

[33]  We therefore find no breach of the good taste and decency standard in relation to this extract.

Did the broadcaster exercise adequate care and discretion when dealing with the issue of violence? 

[34]  Broadcasters should exercise care and discretion when referencing violence (Standard 4). Any description of, or reference, to, violence should be justified by context⁴ and broadcasters should exercise caution with content likely to incite or encourage violence or brutality.⁵

[35]  As discussed above, we found this segment to contain abrasive and threatening language, and we accept that the concepts discussed were challenging.

[36]  However, we consider that, in the context of a discussion which provided commentary on a written article, the segment was not in breach of Standard 4. While some listeners may have found this discussion offensive, we do not consider it was likely to incite violence, or encourage listeners to carry out violent acts. The threatening language was not made in relation to any identifiable individual, and the concepts described appear to us to be abstract or theoretical, rather than encouraging of violence.

[37]  In making this finding, we have taken into consideration differences in culture, and have been cautious not to make a judgement based on a literal translation alone.

[38]  We therefore do not uphold this aspect of the complaint.

Bhakhde Masley – 19 June 2016: Extract B

The broadcast

[39]  This extract contained discussion about complaints being filed against the broadcaster, in the context of a general discussion about a variety of topics on the radio, including the freedoms enjoyed in New Zealand and expressing one’s opinion.

[40]  As this aspect of Mr Singh’s complaint was submitted after independent translations were received, Mr Singh provided a translation of the broadcast to the Authority. Radio Virsa disputed the translation of this segment and provided its own translation for the Authority’s review.

[41]  It appears statements along the following lines were made:

• ‘Numerous complaints were filed against our radio – nowhere else have so many complaints been filed in New Zealand. These complaints could not achieve anything, though the whole of New Zealand was on one side’.
• ‘If you do not agree with this, call us, even off air, and tell us that this person is not against us and I will tell you the truth’.

The parties’ submissions

[42]  Mr Singh submitted that:

• The item amounted to ‘vicious, dishonest and abhorrent’ attacks on him personally.
• It would have been clear to any local listener who was being referred to, as the hosts used the same phraseology to repeatedly refer to him and others.

[43]  Radio Virsa submitted that no breach of broadcasting standards occurred here. In relation to the translation provided by the complainant, Radio Virsa submitted that the meaning of the segment was taken out of context by the complainant. As noted above, it provided its own translation of the extract for the Authority’s review.

Our analysis

[44]  We find that this extract contained no material in breach of broadcasting standards.

[45]  While this segment was somewhat dismissive of the complaints process, we are satisfied that the hosts did not unfairly identify the complainant, or make any offensive comments that would impact on the complainant’s reputation. The segment did not name the complainant specifically, and we consider it would be challenging for listeners to link the complainant to the comments made.

[46]  As such, we find no breach of broadcasting standards in relation to this extract.

Bhakhde Masley – 19 June 2016: Extract C

The broadcast

[47]  This broadcast contained a reference to an incident two-and-a-half years ago, when a large group of people belonging to another Sikh group (250 people) gathered in front of the Sikh Temple where Radio Virsa is based. The host referred to a community leader, V, and his daughter, W, and the following comments were made:

• ‘This type of mad crowd could do anything.’
• ‘Standing there close to the fence was [V], that bastard, whose own daughter’s name is linked to many, and he was showering abuse like there was no God watching’.
• ‘When a person, whose own daughter sleeps with anyone around, accuses others’ daughters and sisters of having a loose character, what happens then?’
• ‘They were there but you don’t give up; spirit to stand up to fight is everything. No harm can be done, no harm can be done! When you are prepared to die, only then does it dawn on you what pleasure there is to be alive’.

The parties’ submissions

[48]  Mr Singh submitted that:

• The item contained derogatory language against women.
• The host named a young woman’s father thereby identifying her, and claimed she ‘sleeps around’. The attack on the young woman was sought to be justified for some real or imagined act of her father against a co-founder of Radio Virsa.

[49]  Radio Virsa submitted that:

• The incident referred to was intended to frighten the Radio Virsa presenters, and V was one of the group who used very abusive and offensive language.
• ‘Few of the times the topics discussed are indeed controversial and emotions can run high but our intention has never been, and will never be, to abuse someone or comment on an individual’s personal life’.
• While Radio Virsa does not accept that standards were breached here, it acknowledged the tone was somewhat aggressive.

[50]  In our view, standards of fairness, privacy and good taste and decency are relevant to this aspect of Mr Singh’s complaint.

Our analysis 

Were W and V treated unfairly?

[51]  The fairness standard (Standard 10) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. 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.⁶

[52]  We consider that this item was unfair to V, by referring to him as a ‘bastard’, a clear insult and also a term which would be considered offensive language by listeners.

[53]  The segment was also grossly unfair to W, V’s daughter, by making allegations about her sexual behaviour and implying that she had ‘loose morals’. It is unacceptable for a broadcaster to comment on a named individual’s personal life in this way, particularly with an apparent intent to devalue her reputation. This is not a topic that should be discussed on community radio and we find that the comments amounted to a significant breach of the fairness standard.

Did the broadcast breach W’s privacy?

[54]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard aims to protect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. It seeks to protect their dignity, autonomy, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity. But it also allows broadcasters to gather, record and broadcast material where this is in the public interest.

[55]  In considering this standard, the Authority is not concerned with whether or not an allegation is true, but rather whether an individual had a reasonable expectation of privacy over the information disclosed.

[56]  For the reasons outlined above, we consider this broadcast extract also breached W’s privacy.

[57]  We are satisfied that W, through the naming of V, was identifiable in the broadcast, particularly taking into account the small Sikh community to which Radio Virsa broadcasts, and that community’s general knowledge of the events described in the broadcast.

[58] We are also satisfied that the comments made about W concerned sensitive, intimate matters which she could reasonably expect would not be broadcast on radio. We find the broadcast of such information was highly offensive, particularly when taking into account the specific culture and views of the Sikh community.

[59] We therefore find this broadcast was in breach of Standard 10.

Did the broadcast threaten current norms of good taste and decency?

[60]  We have discussed the purpose of Standard 1 above at [28].

[61]  For the reasons outlined above under fairness, we also consider that the comments regarding V and W threatened current norms of good taste and decency.

[62]  It is offensive to make degrading and offensive comments about identifiable individuals, and we consider the broadcast of such comments would have been outside audience expectations for this type of religious programming and for Radio Virsa generally.

[63]  For the above reasons, we find that this broadcast was in breach of the good taste and decency standard.

Bhakhde Masley – 3 October 2016 (11am – midday)

The broadcast

[64] This broadcast extract featured a discussion about the process of investigations generally adopted in Western countries. The segment contained the following comments about the complainant and another member of the community, X:

• ‘Now look at Verpal Singh, how low he has stooped.’
• ‘Totally agree at the thinking level of each. Oh Brothers! It’s a request that it is either [X] or Verpal Singh, they are one and the same’.

[65]  The hosts then said, ‘If anyone wants to give his viewpoint, go ahead’ and ‘I will answer any questions to whatever I am saying on radio now’.

The parties’ submissions

[66]  Mr Singh complained that this broadcast was in breach of the balance, accuracy and fairness standards. He submitted that a caller brought him into the discussion for no reason, and the host and caller made derogatory, insulting and unfair allegations, which amounted to bullying.

[67]  Radio Virsa submitted that no breach of broadcasting standards occurred.

[68]  We have focused our deliberation on the fairness standard in relation to this broadcast extract.

Our analysis

Was the complainant treated unfairly?

[69]  We have discussed the fairness standard above at [51]. Guideline 11d to the standard states that if a person referred to in a broadcast might be adversely affected, that person should usually be given a fair and reasonable opportunity to comment on the programme, before it is broadcast.⁷

[70]  In our view, this broadcast breached the fairness standard in relation to Mr Singh, with the remark ‘how low he has stooped’. The host named the complainant and made what could be considered a derogatory comment about him, without him having any opportunity to comment or defend himself, which was unfair.

[71]  We therefore find that the complainant was treated unfairly during this broadcast.

Bhakhde Masley – 3 October 2016 (midday onwards)

The broadcast

[72]  This extract contained discussion about Sikh religious teachings (Gurbani) and a named Professor who is based in India. The segment contained the following comment:

I had said it to you two years ago that whenever you would come across us, sparks would fly. Come on air anytime, as they say in Punjabi – you would run with your tail between your legs. You should present ill-quoted Gurbani before someone else.

The parties’ submissions

[73]  Mr Singh complained that this extract was in breach of the balance, accuracy and fairness standards. Mr Singh submitted that the item used insulting language when discussing the named Professor and made inaccurate allegations that he had distorted religious teachings.

[74]  Radio Virsa submitted that no breach of broadcasting standards occurred.

Our analysis

[75]  In our view this broadcast had little relevance to listeners in a New Zealand context. While some of the opinions discussed during the segment may have been critical of the Indian-based Professor, we are satisfied that the extract did not contain any material in breach of broadcasting standards.

Sikh Patshahi – 9 November 2016

The broadcast

[76]  This extract was a lengthy segment which discussed religious, moral, social and political issues impacting the Sikh community. It specifically discussed an audio clip which had gone viral on social media.

[77]  The following statements were made about the complainant and other named individuals:

• ‘…Verpal also came from the university. But when he shunned all the teachings of Guru Sahib, his character… he did all that. Yet when his time came, he was so arrogant’.
• ‘He should be ashamed of himself… for talking about [a named Professor]. He used to do a programme on his book. Now, what were his comments about him? Someone should grab him by the scruff of the neck and ask him – what were you saying earlier, and what are you saying now?’
• ‘We request all those whom we have talked about, people like [X], [Y] and Verpal Singh, to call us if they want to… Anyone who wants to put forth his opinion, come and share with the listeners whatever truth he has got that needs telling. And we will contribute our hot opinions too. We have got enough to say, many bags full’.

[78]  Other statements made during the segment include:

• ‘Then that lady from Australia who lives in Sydney came along – [Z]. She is a fake, she is actually from New Zealand. When we say anything about them, they make such a hue and cry. Then they say that, being ladies, they don’t know anything. But they come to squabble and quarrel with us, whether they are male or female. Now take this person, who came along in the guise of a lady – we will talk to her in a language reserved for ladies. We will have to answer her.’
• ‘Now if someone asks that lady why she is becoming our mistress, you will say how crudely we talk to the ladies. But she comes and bickers with us. She doesn’t know a thing, whoever she is’.
• ‘Please excuse us, we did say it at the beginning too. Now we request again – anyone who is under 18 years of age, please go away so that your sensibilities are not hurt. Please don’t listen to the radio. Don’t listen to this programme. These are the issues facing our community. We have been forced to kneel before scoundrels and gangsters in the name of wisdom. We have to talk about them.’
• ‘When these scoundrels start molesting your women, would you have enough strength to prevent this? We will manage, we… as I have said before, we know where to hit them. This is not cheap talk from us’.
• ‘Now this is a filthy business that people like [X] are indulging in. Now what will happen to [X] and the others when their time comes’.
• ‘This is not idle talk… We know what we have to do. We have already done it before’.
• ‘But we will show how we deal with them. We will take it out of their bones. We will take the abuse out of their bones. These abuses are written all over me. Now, all their abuses are in the open. I will give it back to them. I will deal with them’.

The parties’ submissions

[79]   Mr Singh complained that this segment was in breach of all 11 broadcasting standards. Mr Singh submitted that:

• The item contained derogatory language against women.
• The broadcast was a planned effort to abuse and humiliate himself, Y (a member of the community), X and Z.
• The item contained threats of violence against him.

[80]  Radio Virsa submitted that:

• The statement ‘we know where to hit them’ should be translated as ‘we know the way to tackle them’.
• At no point have its programmes aimed to insult or humiliate any listener or aimed to violate any New Zealand laws.
• The complainant has taken the programmes out of context and presented the script in a manner that aims to humiliate Radio Virsa before the Sikh public.
• Radio Virsa is a community-based radio station that aims to spread the word of Guru Granth Sahib Ji and nothing else.

[81]  In our view, the broadcasting standards most relevant to this extract include Standard 11 – Fairness, Standard 1 – Good Taste and Decency, Standard 6 – Discrimination and Denigration, Standard 5 – Law and Order and Standard 4 – Violence.

Our analysis

Was any individual or organisation taking part or referred to in the broadcast treated unfairly?

[82]  We discuss the purpose of the fairness standard above at [51], and we have also outlined at [69] the importance of broadcasters giving individuals referred to in a broadcast who might be adversely affected the right to respond.

[83]  The comments made about the complainant in this broadcast extract had the potential to adversely affect him and we consider resulted in his unfair treatment.

[84]  We also consider that the comments made about Z, that she was a ‘fake’, ‘she doesn’t know a thing’ and a reference to ‘becoming our mistress’, reflected negatively on Z’s character and intelligence, and were inappropriate and unfair. 

[85]  The comments relating to X, that ‘this is a filthy business that people like X are indulging in. Now what will happen to X and the others when their time comes’, were also unfair.

[86]  As we have noted above, it is inconsistent with fundamental fairness principles to be speaking about named individuals in this way, particularly in a community where they are likely to be known to listeners, and without giving them an opportunity to comment prior to broadcast. The comments made about the complainant, Z and X reflected negatively on their character and the tone of these comments was offensive and demeaning.

[87] We therefore find this broadcast was in breach of Standard 11.

Did the broadcast threaten current norms of good taste and decency?

[88]  We have outlined at paragraph [28] above the objectives of this standard.

[89]  The comments about women contained in this broadcast, for example, ‘they say that, being ladies, they don’t know anything’ and ‘we will talk to them in a language reserved for ladies’, were offensive and derogatory, and suggested the programme hosts had a lower opinion of women, especially those who held contrary opinions to them.

[90]  We believe this attitude would be considered entirely unacceptable in our society and threatened current norms of good taste and decency. As such, we uphold this aspect of Mr Singh’s complaint.

Did the broadcast encourage the denigration of, or discrimination against, women as a section of the community?

[91]  The objective of the discrimination and denigration standard (Standard 6) is to protect sections of the community from verbal and other attacks. The standard protects against broadcasts which encourage the denigration of, or discrimination against, 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.

[92]  ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment. ‘Denigration’ is defined as devaluing the reputation of a particular section of the community.⁸ It is well established that a high level of condemnation, often with an element of malice or nastiness, is required to conclude that a broadcast encouraged discrimination or denigration in contravention of the standard.⁹

[93]  While we have found that the comments relating to women in this broadcast extract were objectionable, the question is whether they could also be considered hate speech/vitriolic at a level which encouraged the denigration of women, or the different treatment of them.

[94]  In our view, the comments, while offensive in New Zealand society, do not reach the high threshold necessary to find a breach of this standard. In assessing whether a broadcast has gone too far, the Authority will consider the following factors:¹⁰ 

• the language used
• the tone of the person making the comments
• the forum in which the comments were made, for example, a serious political discussion, or a satirical piece
• whether the comments appeared intended to be taken seriously, or whether they were clearly exaggerated
• whether the comments were repeated or sustained 
• whether the comments made a legitimate contribution to a wider debate, or were gratuitous and calculated to hurt or offend.

[95]  In our view, the comments made do not appear to have been repeated or sustained, and while we have found they were offensive, comments will not breach the standard simply because they are critical, because they offend people or because they are rude.¹¹ In this case, we do not consider the comments went so far as to encourage the different treatment or devalue the reputation of women generally. We therefore consider that the complainant’s concerns with this aspect of the broadcast are better considered as a matter of fairness, which we have addressed above.

[96]  We therefore do not find a beach of Standard 6 in relation to this segment.

Did the broadcast encourage listeners to break the law, or otherwise promote, condone or glamorise criminal activity?

[97]  The purpose of the law and order standard (Standard 5) is to prevent broadcasts that encourage audiences to break the law, or otherwise promote criminal or serious antisocial activity.¹² The standard is concerned with broadcasts that actively undermine, or promote disrespect for, the law or legal processes.

[98]  The content and tone of the comments such as ‘we know where to hit them’, ‘this is not idle talk from us’, and ‘I will give it back to them. I will deal with them’, was threatening and alluded to violent and/or antisocial behaviour, allegedly undermining law and order.

[99]  In our view, however, while these comments contained threatening language, the hosts were unlikely to incite real violence and we find it unlikely listeners would have taken these comments literally or seriously.

[100]  We therefore do not uphold this aspect of the complaint.

Did the broadcaster exercise adequate care and discretion when dealing with the issue of violence?

[101]  We consider our reasoning in relation to the law and order standard applies equally here.

[102]  While the language used was threatening and spoken in an aggressive tone, we consider it unlikely that listeners would have taken these comments seriously, or that they would incite violence.

[103]  We therefore do not uphold the violence complaint.

For the above reasons the Authority upholds aspects of the complaint that broadcasts by Radio Virsa of Bhakhde Masley on 19 June 2016 and 3 October 2016 and Sikh Patshahi on 9 November 2016 breached Standards 1, 10 and 11 of the Radio Code of Broadcasting Practice.

[104]  Having upheld aspects of the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on our provisional decision and orders from the parties.

Submissions on the provisional decision

[105]  Radio Virsa accepted the Authority’s provisional decision and found no errors of fact or misunderstandings.

[106]  Mr Singh raised a number of issues regarding the Authority’s provisional decision. We have summarised some of these submissions below.

[107]  Mr Singh was concerned that, while his complaint was made in relation to specific statements or segments of the programmes identified, he continued to hold the view that the ‘vast majority of live programmes’ broadcast by Radio Virsa were in breach of broadcasting standards.

[108]  He was also concerned that, following his complaints, the language and tone of delivery used by presenters had since become more aggressive and insulting. He also noted Radio Virsa’s online presence and the online platforms where broadcasts by Radio Virsa were made available.

[109]  Mr Singh also made submissions raising concerns about the Authority’s reasoning and findings, for example:

• He considered that he was clearly identifiable in the broadcast of Bhakhde Masley on 19 June 2016 (Extract B),¹³ as hosts of Radio Virsa referred to ‘cases filed against him and Radio Virsa NZ’. Regular listeners would clearly understand who was being referred to.
• He considered further contextual information should have been provided regarding the broadcast of Extract C.¹⁴ He alleged that the protestors referred to gathered to protest against Radio Virsa as a result of numerous broadcasts containing abusive and derogatory language. Radio Virsa were invited to a public discussion but refused to attend, and the protest group therefore moved to Radio Virsa’s offices.
• He disagreed with the Authority’s findings at paragraphs [72] to [75], regarding the visiting Professor to New Zealand. He submitted that, in the time taken to determine his complaint, Radio Virsa had continued to insult the Professor. Mr Singh submitted that the Authority should revisit this aspect of his complaint, and either uphold it as a breach or defer its findings on this point until submissions could be sought from the parties, given what had taken place since October 2016.
  Authority’s response to submissions on the provisional decision

[110]  Provisional decisions are provided to parties to correct any errors of fact in the decision, or any misunderstandings by the Authority. In our view, a majority of Mr Singh’s submissions on the provisional decision reflect his attempts to revisit the substance of his complaint and we are satisfied that his submissions do not affect our findings overall.

[111]  We have, however, taken into account Mr Singh’s submission at paragraph [10] of the decision, which sets out background to the complaint. We do not consider any further amendments are required.

Submissions on orders

[112]  Mr Singh submitted:

• Radio Virsa continued to repeat and aggravate violations of broadcasting standards. The four complaints filed were spread across many months, illustrating the behaviour complained about is continuous and prolonged.
• The requirement for obtaining translations of the broadcasts could have been avoided if Radio Virsa had properly handled its complaints.
• Compensation should be paid to V and W, along with a written apology by the owner of Radio Virsa. This apology should also be broadcast on Radio Virsa and posted on Radio Virsa’s website and Facebook page.
• A written apology should be made to the named Professor, with the same conditions as above.
• A written apology should be made to Mr Singh with the same conditions as above.

[113]  Radio Virsa submitted:

• It is a small radio station, with a small reach, staffed by volunteers. Staff have little knowledge of, and experience with, broadcasting standards and how they apply, and it is difficult for them to understand their obligations.
• This was a novel case, traversing how the standards and free speech rights apply in the context of cultural talkback, broadcast with some contention around translation, and in which hosts were responding to criticism levelled at them.
• Breaches were few compared with the volume of complaints and were not at the serious end of the scale. Many of the complaints were unfounded. However, it accepted that the worst breach (in relation to the breach of W’s privacy) was a serious one and it agreed to broadcast an apology, should W wish, in terms acceptable to the Authority.
• It would also be appropriate for a statement detailing the upheld aspects of the complaint to be broadcast.
• No damages relating to privacy issues were appropriate. Mr Singh’s complaint was comparable to previous decisions by the Authority in which a third party complained on behalf of an individual whose privacy was breached.
• Radio Virsa has developed specific guidance for its presenters and has taken steps to ensure all presenters and production staff are aware of the policies.
• It accepted its knowledge of broadcasting standards was inadequate and agreed, and welcomed the opportunity, to participate in training on the standards, as suggested by the Authority in its decision.

Authority’s decision on orders

[114]  When the Authority upholds a complaint, whether in whole or in part, we may make orders, including directing the broadcaster to pay compensation to any person whose privacy has been breached, to broadcast and/or publish a statement, and/or to pay costs to the Crown.

[115]  The factors we take into consideration in determining whether orders are warranted include:¹⁵

• the seriousness of the breach, and the number of upheld aspects of the complaint
• the degree of harm caused to any individual, or to the audience generally
• the objectives of the upheld standard(s)
• the attitude and actions of the broadcaster in relation to the complaint (eg, whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated any harm caused)
• whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
  past decisions and/or orders in similar cases.

Privacy compensation 

[116]  We have found that the privacy of W was breached during the broadcast of Bhakhde Masley (Extract C) on 19 June 2016. In considering whether privacy compensation is warranted and if so, in what amount, we have taken into account the considerations below. 

[117]  The primary purpose of privacy compensation is to compensate the impacted individual(s) for, among other things, hurt and humiliation, loss of dignity and injury to feelings. In this case, however, the privacy complaint was made by a third party, and not by the individual whose privacy was breached. We do not have submissions or information from W to enable the Authority to assess the level of harm caused to W as a result of the broadcast.

[118]  In its submissions, the broadcaster has raised analogous cases in which privacy complaints from a third party were considered by the Authority. For example, in Hastings District Council and TV Works,¹⁶ we found that an order for compensation for a breach of the featured girls’ privacy would be inappropriate. The Council advised the Authority that the girls who participated in the programme wanted no involvement in the complaint and the Council did not act on their behalf. In Hill and Radio One,¹⁷ we found that no order was warranted, as the broadcaster offered a personal apology to those affected by the broadcast and accepted the inappropriateness of the comments made. The decision in that case provided sufficient guidance in the circumstances.

[119]  In these cases, as well as our recent decision Rickard,¹⁸ we upheld the breach of privacy but did not order compensation to be paid, instead finding that publication of the decision was sufficient to provide guidance to the broadcaster on its obligations.

[120]  Taking this into account, and having regard to the above factors, we do not consider an order of privacy compensation to W is appropriate in the circumstances.

[121]  In our view, the key focus of the complainant’s arguments in this case relates to the conduct of the broadcaster and its lack of understanding about broadcasting standards and the rights of individuals. We consider our decision is clear that this conduct is unacceptable, and the decision provides guidance to the broadcaster on the treatment of named individuals, and the type of information that should not be disclosed publicly.

Apology

[122]  The Authority does not have the power to order an apology. However, the broadcaster has offered to apologise to the individuals affected by the broadcast, as part of a broadcast statement. An apology has also been requested by the complainant.

[123]  We do not consider that a public apology to W, V, X and Z would be appropriate in this case, as naming or drawing attention to these individuals could further aggravate the breach, and we do not know their views on this remedy.

[124]  However, we suggest that a private apology made to W for the breach of her privacy and to V, X and Z for their unfair treatment, would be appropriate in the circumstances.

[125]  Given the complainant has sought, and the broadcaster has offered, a public apology to the complainant (who we have found was treated unfairly), we support a public apology to Mr Singh as an appropriate remedy, and we encourage the broadcaster to take this step.

Broadcast statement

[126]  We consider that a broadcast statement summarising the decision is warranted, in order to publicly acknowledge the breach of standards – in particular, to Radio Virsa’s audience and to those individuals who were commented on during the broadcasts.

[127]  This statement should be broadcast at around midday, and again at 6pm, reflecting the original times of broadcast. We consider it is appropriate for Radio Virsa to draft the statement for approval by the Authority, and for this statement to be translated into Punjabi for Radio Virsa’s listeners. Radio Virsa may wish to include the apology offered to the complainant, in that statement (as discussed above).

[128]  If any of the broadcasts that we have found to be in breach of standards (Bhakhde Masley on 19 June 2016 and 3 October 2016 and Sikh Patshahi on 9 November 2016) remains available online, we expect the broadcaster to either remove them, or to display alongside the online items the approved wording of the broadcast statement, and a link to this decision, for as long as those items remain available online.

Costs to the Crown

[129]  In considering whether costs to the Crown are warranted, the following factors in our view are aggravating factors, and/or support an order of costs to the Crown:

• Three standards were breached across three different broadcasts in this case (good taste and decency, privacy and fairness), and upheld aspects of the complaint related to inappropriate and offensive comments made about named individuals.
• Other content complained about concerned divisive and coarse language and derogatory and offensive comments about women. The Authority found that these aspects of the broadcasts were unacceptable in New Zealand society.
• Radio Virsa did not uphold any aspects of Mr Singh’s complaints.
• Radio Virsa admits it has a limited understanding of broadcasting standards and their application in New Zealand.
• The broadcaster’s submissions to the Authority showed a severe lack of understanding of, and disregard for, broadcasting standards, and particularly the right of individuals to privacy and fair treatment.
• An order of costs to the Crown would respond to and mark the seriousness of the conduct.

[130]  The relevant mitigating factors are:

• Radio Virsa is a small station with limited resources that seeks to serve its local Sikh community.
• Radio Virsa has not had any upheld complaints made against it to date.¹⁹

[131]  While the breaches in this case were serious (particularly in relation to the treatment of named individuals), we recognise that an important part of the Authority’s role is to guide broadcasters such as Radio Virsa as to what is acceptable in New Zealand. We therefore consider that the best course of action in this case, is for Authority staff to work with Radio Virsa to educate its employees and hosts on the broadcasting standards regime.

[132]  In these circumstances, we consider this decision and a broadcast statement are sufficient to mark the upheld aspects of the complaint and therefore no other orders are warranted. However we note that this decision may be taken into account when determining any orders in the event of a future upheld complaint.

Orders

Pursuant to section 13(1)(a) of the Act, the Authority orders Radio Virsa to broadcast a statement. The statement shall:

be approved by the Authority prior to broadcast
be broadcast within one month of the date of this decision
be broadcast at a time and on a date to be approved by the Authority
contain a comprehensive summary of the upheld aspects of the Authority’s decision
be broadcast in both English and Punjabi. 

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Peter Radich
Chair
27 October 2017

Appendix

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

1     2017-001A: Verpal Singh’s original complaint, Radio Virsa’s response and Mr Singh’s referral to the Authority regarding broadcast (1)
2     2017-001B: Mr Singh’s original complaint and referral to the Authority regarding broadcast (2)
3     2017-001C: Mr Singh’s original complaint and referral to the Authority regarding broadcast (3)
4     2017-001D: Mr Singh’s original complaint, Radio Virsa’s response and Mr Singh’s referral to the Authority regarding broadcast (4)
5     Radio Virsa’s response to the Authority regarding all broadcasts – 1 March 2017
6     Mr Singh’s final comments – 8 May 2017
7     Mr Singh’s comments regarding list of broadcast extracts – 30 May 2017
8     Radio Virsa’s submissions on the provisional decision and orders – 15 September 2017
9     Mr Singh’s submissions on the provisional decision and orders – 17 September 2017

Translations

10    Broadcast (1) part one: Bhakhde Masley 19 June 2016
11    Broadcast (1) part two: Bhakhde Masley 19 June 2016
12    Broadcast (1) part three: Bhakhde Masley 19 June 2016
13    Broadcast (2): Bhakhde Masley 3 October 2016
14    Broadcast (3): Bhakhde Masley 3 October 2016
15    Broadcast (4): Sikh Patshahi 9 November 2016
16    Radio Virsa’s submissions on translations – 5 July 2017
17    Mr Singh’s submissions on translations – 5-7 July 2017

¹  See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Commentary: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6

²  Guideline 1b to Standard 1

³ Lee and MediaWorks Radio Ltd, Decision No. 2017-030

⁴ Guideline 4b

⁵ Guideline 4c 

⁶ Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁷ Guideline 11d to Standard 11 – Fairness

⁸ Guideline 6a

⁹ Guideline 6b 

¹⁰ Commentary to Standard 6 – Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16

¹¹ Commentary to Standard 6 – Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16

¹² See, for example, Keane and Television New Zealand Ltd, Decision No. 2010-082

¹³ At paragraph [39]

¹⁴ At paragraph [47]

¹⁵ Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58

¹⁶ Decision No. 2009-088

¹⁷ Decision No. 2013-074

¹⁸ Rickard and Television New Zealand Ltd, Decision No. 2016-098

¹⁹ This case is distinguishable in this respect from the case of Sanders and Apna Networks Ltd, Decision No. 2017-017. While we noted in that decision that Apna TV is a small broadcaster with programming targeted at a particular cultural community (similar to Radio Virsa), Apna TV had a number of upheld complaints made against it (unlike Radio Virsa), previous to Mr Sanders’ complaint.