BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority upheld a complaint that a segment of Punjabi talkback programme, Dasam Granth Da Sach breached the good taste and decency, violence and law and order standards. During the segment, the host made threatening comments, directed at members of a Sikh sect in response to recent violent incidents in India. The Authority found the comments undermined widely shared community standards, considering their seriousness, specificity and other contextual factors. The Authority also found the comments actively incited violence and promoted disrespect for the law within the specific community of listeners. The Authority recognised the value of the broadcaster’s right to freedom of expression but found the potential for harm justified a restriction of this right.

Upheld: Good Taste and Decency, Violence, Law and Order

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

The broadcast

[1]  On 27 July 2019, Radio Virsa broadcast Punjabi talkback programme, Dasam Granth Da Sach.

[2]  As this programme was broadcast in Punjabi, we sought an independent translation and transcription of the relevant segment complained about.¹ According to the translation we have been provided, during this broadcast segment, the host Harnek Singh, who was talking to a caller, made several comments regarding Sikh sect ‘Damdami Taksaal’, in response to several recent violent incidents that had occurred in India.

[3]  According to the transcription of the broadcast, during the exchange Mr Singh said the following:

It is a request to Orthodox Sikhs, actually it is a threat but I would call it a request. Wait for a year friends. The day when we resolve to have a direct fight, the day we prepare our team by organising 500 people in Punjab …we know the Police officials, the people with sticks also know us, the rogues also know us, the goons also know us. They know how to infiltrate the houses and they also know how to (forcibly) pick-up people from their houses, if one day we resolve to fight and start to thrust ourselves by preparing 500-goons’ brigade in Punjab, life would be difficult. Be careful.

[4]  In making its determination on this complaint, the members of the Authority have read the independent translation of the relevant section of the broadcast complained about and the correspondence listed in the Appendix.

[5]  As the issues raised in this complaint are specific to the Punjabi community, we considered whether we ought to appoint a cultural advisor to assist us. However, we agreed that we did not need to appoint a cultural advisor, as insights provided to us by previous cultural advisors on complaints made against this broadcaster provided us with a sufficient understanding of the cultural and community values to enable us to determine this complaint.

The complaint

[6]  Gurpreet Singh complained that the broadcast breached the good taste and decency, violence and law and order standards of the Radio Code of Broadcasting Practice for the following reasons:

• The host threatened to harm people and used violent words.
• The host threatened to take people from their houses and form a ‘goon brigade’ to terrorise people of the Sikh sect Damdami Taksaal.
• The host said he will get the police to kidnap people.
• Radio Virsa invited Mr Singh to call in to a programme and discuss the comments and Radio Virsa believed Mr Singh had ‘taken them in the wrong context’. Mr Singh called in to one of the programmes but said the host avoided the topic and said if he wanted to report the host for his comments he should.

The broadcaster’s response

[7]  Radio Virsa initially responded to Mr Singh stating that he had taken the comments ‘in the wrong context’ and invited him to call in to the broadcast. Radio Virsa did not specify to Mr Singh whether or not his complaint had been upheld.

[8]  Mr Singh called in to a later broadcast to discuss the comments with the host. Mr Singh was not satisfied with the subsequent on-air conversation between himself and the host and referred his complaint to the Authority.

[9]  Upon request for clarification, Radio Virsa submitted that the broadcast did not breach the nominated standards for the following reasons:

• The conversation took place between a caller and the host regarding the violent incidents conducted by the followers of an ‘orthodox religious sect Damdami Taksaal’ in India. These incidents were widely covered by the media throughout India.
• The host shared his opinion with the caller. He ‘did not threaten anyone but he used the word “we” which was on behalf of all the innocent people and gave them a warning message…’
• The host’s comments were intended to provide ‘moral and physical support on behalf of every innocent resident of Punjab to police in order to stop their [Damdami Taksaal] hooliganism.’
• The host’s comments ‘condemned the violence and encouraged the people to team up to help police and local authorities morally and physically to curb violence/law and order and discrimination’.
• Radio Virsa offered the complainant several opportunities to call in to one of their programmes and discuss the comments and relevant incidents. The complainant called in to a programme but was not satisfied with the discussion.

Procedural issues

[10]  Mr Singh also raised the discrimination and denigration and children’s interests standards in his referral to the Authority. However, pursuant to section 8(1B) of the Broadcasting Act 1989, as these standards were not raised in his original complaint to Radio Virsa, we are unable to consider them.

[11]  We consider Radio Virsa’s handling of this complaint to be unsatisfactory. Inviting the complainant to call in to a subsequent broadcast to discuss the subject of a complaint is not an acceptable or proper procedure for dealing with a complaint, which the broadcaster is required to provide under sections 5(a) and 6 of the Broadcasting Act. We remind Radio Virsa that they must establish a proper procedure and respond to all formal complaints in writing, within 20 working days of the complaint being made, notifying the complainant of their findings.² On this occasion, Radio Virsa did not inform Mr Singh about whether the complaint had been upheld and the Authority had to seek clarification from Radio Virsa regarding their findings.

The relevant standards

[12]  The good taste and decency standard (Standard 1) requires broadcasters to maintain current norms of good taste and decency consistent with the context of the programme and the wider context of the broadcast.

[13]  The violence standard (Standard 4) states that broadcasters should exercise care and discretion when dealing with the issue of violence.

[14]  The intent behind the law and order standard (Standard 5) is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal or serious antisocial activity.³

Our findings

[15]  The starting point in our consideration of complaints is the right to freedom of expression. The right to freedom of expression is an important right in maintaining a healthy democracy, and it protects both broadcasters’ right to screen a wide range of content, and the audience’s right to receive that content. However, this is not an absolute right and may be limited where the exercise of the right has, or may, cause harm. Our role, when we consider complaints, is to weigh the right to freedom of expression and the value or public interest in the broadcast, against the harm that may have potentially been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.

[16]  As the Authority has observed in previous cases, 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. We must look to the New Zealand community as a whole when determining whether broadcasting standards have been breached.⁴

[17]  We also recognise that in this case, as in previous cases involving Radio Virsa, the broadcaster and the programme complained about are aimed at a specific community group. We acknowledge that the particular expectations of Radio Virsa’s target audience may differ to the expectations of a wider, and potentially non-religious, audience.⁵

[18]  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 broadcast. Those community-specific views are important to our assessment of whether the content of this broadcast went outside audience expectations.

[19]  While the threshold is high, on this occasion we found overall that the potential for harm outweighed Radio Virsa’s right to freedom of expression and justified its restriction. We expand on our reasoning below.

Good taste and decency

[20]  Attitudes towards taste and decency differ widely and continue to evolve in a diverse society such as ours. Caution must therefore be exercised when considering matters of taste. The feelings of the particularly sensitive cannot be allowed to dictate what can be broadcast. However, there are limits and the broad limit is that a broadcast must not seriously violate community norms of taste and decency.⁶

[21]  We also note that context is crucial when determining a complaint under the good taste and decency standard.⁷ We found the following contextual factors important in our determination:

• The comments were aimed at a specific community group.
• The comments were specific in nature.
• The segment was broadcast at around 2:30pm.
• The comments described organised, collective, violent action.
• The comments were made in response to violent events in India.
• Mr Singh is renowned for making controversial statements.
• There was little to no explicit or graphic language.
• 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 audience.

[22]  The key issue we considered under this standard is whether the host’s comments undermined widespread community standards or were likely to cause widespread undue offence or distress. We find the comments made by the host reached this threshold.

[23]  We recognise the mitigating contextual factors such as the audience expectations of the station and Mr Singh, the lack of explicit or graphic language and the subsequent action taken by Radio Virsa. We also note talkback stations are granted more latitude to be provocative in the interests of generating robust debate.⁸

[24]  However, we find Mr Singh’s comments went beyond audience expectations, even in a talkback radio environment. Unlike previous instances where a radio host’s threats were found not to have breached standards because of their ‘flippant’ nature,⁹ Mr Singh’s comments were serious and specific in nature and directly targeted a section of the community (Damdami Taksaal). While we recognise the community expectations of Virsa’s audience may differ with respect to statements like this, as discussed above, we must apply broadcasting standards in this case in a way that reflects the expectations and norms of the wider New Zealand community. On this occasion, we find the comments which encouraged violence undermined widely shared community standards in New Zealand. Accordingly, we find they went beyond what is acceptable to broadcast in New Zealand’s radio talkback environment.

[25]  We therefore uphold the complaint under this standard.

Violence

[26]  Broadcasters should exercise caution with content likely to incite or encourage violence or brutality.¹⁰ Our key questions under the violence standard are whether Mr Singh’s comments were ‘likely to incite or encourage violence or brutality’, and if so whether Radio Virsa ‘exercised caution’.

[27]  The contextual factors listed under the good taste and decency standard are also relevant to the violence standard.

[28]  Mr Singh’s comments in this broadcast are similar to comments he made in a previous broadcast.¹¹ On that occasion we found that comments such as ‘this is not idle talk from us’ and ‘I will give it back to them, I will deal with them’, while threatening and alluding to violent behaviour, did not breach the violence standard as it was ‘unlikely listeners would have taken these comments seriously…’¹²

[29]  However, on this occasion we find Mr Singh’s comments went further. The comments called for collective violent action from his community in response to recent events. Mr Singh also referenced specific actions to be taken: ‘the day when we resolve to have a direct fight, the day we prepare our team by organising 500 people in Punjab’ and ‘they know how to infiltrate the houses and they also know how to (forcibly) pick up people from their houses…’

[30]  We find these comments, considering their specific and serious nature and the context in which they were made, were likely to incite or encourage violence or brutality and that Mr Singh and Radio Virsa did not exercise caution by broadcasting them.

[31]  Therefore, we find the broadcast also breached the violence standard.

Law and order

[32]  This standard is concerned with broadcasts that actively undermine, or promote disrespect for, the law or legal processes.¹³ Programmes should not actively promote serious antisocial or illegal behaviour, including violence, suicide, serious crime and substance abuse.¹⁴

[33]  The contextual factors listed under the good taste and decency standard are also relevant to the law and order standard.

[34]  For the reasons we have discussed above under the good taste and decency and violence standards, we find that Mr Singh’s comments also amounted to a breach of the law and order standard.

[35]  Considering the direct nature of Mr Singh’s comments alongside their specificity and the context in which they were made, we find the comments amounted to a ‘direct incitement to break the law’ with a ‘real likelihood that the audience will act on them’.¹⁵ Mr Singh urged his listeners (and their associates in India) to take action. Therefore, we consider the broadcast actively undermined and promoted disrespect for the law and find the potential for harm outweighed Radio Virsa’s right to freedom of expression on this occasion.

For the above reasons the Authority upholds the complaint that the broadcast by Radio Virsa of Dasam Granth Da Sach on 27 July 2019 breached Standards 1, 4 and 5 of the Radio Code of Broadcasting Practice. 
[36]  Having upheld this complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We issued a provisional decision to the complainant and the broadcaster and invited their submissions on orders.

The parties’ submissions on the provisional decision
[37]  The complainant said that he agreed with the provisional decision.

[38]  Radio Virsa made a number of submissions in response to the Authority’s provisional decision. In summary, it said:

• The listenership of Radio Virsa is so extraordinarily limited that there can be no genuine likelihood of widespread offence, distress, violence or lawlessness.
• The host was explicit about when the suggested action should take place: ‘wait for a year, friends’. This was not a call to immediate action. Therefore, the threat was less harmful than a call for immediate violence and less likely to incite violence or unlawful behaviour.
• Mr Singh was calling on people to act in concert with the police which reduced any potential harm arising from the broadcast.
• In other decisions, the Authority has noted that the violence standard will rarely apply on radio.
• The context of the broadcast as a whole ‘mitigates the harsh edges of the extract complained about. In that light, the extract is more a warning of possible consequences if violence is not reined in, motivated by outrage at the abuses on the video.’ Radio Virsa provided translations of other sections of the broadcast in support of this.
• The host was discussing a matter of public interest, and therefore should be given some latitude for the way he did it. The public interest of the subject matter elevates the significance of the speech and the desirability of exercising caution before concluding that a penalty is demonstrably justified.
• Radio Virsa also made a number of submissions about what it considered to be notable characteristics of the language used by Mr Singh.  
• Finally, Radio Virsa made submissions regarding its complaints procedure, which is discussed in paragraph [11] above.

Our response to submissions on the provisional decision
[39]  Provisional decisions are provided to parties to enable them to correct any errors of fact in the decision and to make submissions on orders. In this case, we consider that a majority of Radio Virsa’s further comments are in fact further submissions on the substance of the complaint. Nevertheless, we have considered them and we do not consider the submissions alter our findings overall.

[40]  Some of Radio Virsa’s submissions have, however, assisted us to clarify our reasoning with respect to the issue of whether Mr Singh’s comments undermined widely shared community standards, regardless of audience size or reach. While the community which a broadcaster serves is an important consideration, as we have said we must apply broadcasting standards that reflect the expectations and norms of the wider New Zealand community. The size of a broadcaster’s audience is a contextual factor but it is not determinative. Raising this consideration above others could set a precedent that broadcasters with smaller audiences are subject to different obligations under the standards. This cannot be the case. As we have clarified in paragraph [24] above, we consider the statements, which encouraged violence, undermined widely shared community standards in New Zealand.

[41]  We also do not consider the submissions regarding the nature of the host’s threat (timing; invocation of police; directed at Damdami Taksaal) affect our finding. The Codebook and previous decisions provide no guidance suggesting ‘deferred threats’ should be treated differently and Radio Virsa can have no confidence that listeners agitated or encouraged by the statements would respect the specified ‘one year time period’. There is also nothing to suggest threats must relate to action to be undertaken in New Zealand for broadcasting standards to apply. Radio Virsa could not be certain as to how those New Zealand residents who are passionately concerned about the relevant events might respond to the comments.

[42]  Additionally, we find the submissions regarding Radio Virsa’s complaints procedure, history or the on-air discussion between the complainant and the host do not affect the substance of our decision. Our role is to consider the broadcast, and any harm that might be caused by it, which is what we have done.

[43]  With regard to the submission that the context of the broadcast as a whole mitigated the impact of the relevant comments, we have taken into account the translations of other sections of the broadcast which were provided by Radio Virsa. However, while the additional contextual translations highlight Mr Singh offering some general condemnation of violence and the espousing of a ‘live and let live’ philosophy (from which one might infer the host does not advocate violence), they do not materially detract from Mr Singh’s statement to the point where they alter our finding under any of the standards raised. 

[44]  We consider the remaining aspects of Radio Virsa’s submissions are addressed in our decision.

The parties’ submissions on orders
[45]  Radio Virsa submitted that all of its submissions (summarised above) are also relevant to its position on the question of penalties. Radio Virsa submitted that, should the complaint be upheld, a broadcast statement would be an appropriate order.

[46]  The complainant submitted that he is ‘seeking final order from Authority in the form of penalty or any best judgement just to make sure next time Radio Virsa choose words carefully before broadcast’.

Our decision on orders
[47]  When the Authority upholds a complaint, we may make orders, including directing the broadcaster to pay costs to the Crown and/or to publish a statement.

[48]  In determining whether orders are warranted, the factors we take into consideration are:¹⁶

• 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.

Some of the factors applied here

[49]  We consider the following aggravating and mitigating factors are relevant in this case:

Aggravating Factors:

• The statements contributing to the breach of standards in this case were wilful and intentional.
• Radio Virsa did not uphold the complaint in the first instance and has sought to further litigate the issues in the submissions on orders.
• We have upheld the complaint under all three standards raised.
• We have previously upheld a complaint against Radio Virsa in relation to similar issues.¹⁷

Mitigating Factors:

• The breach in this case is at the middle end of the spectrum in terms of its seriousness.
• Radio Virsa is a small community broadcaster with a limited audience.
• Although not in accordance with proper complaints procedure, Radio Virsa attempted to remedy the harm caused by inviting Mr Singh on air to discuss the broadcast.
• Although the host’s comments were not appropriate, they were made in relation to events with a high level of public interest.

Broadcast statement

[50]  Taking the above factors, previous decisions and the parties’ submissions into account, we consider that an order of a broadcast statement is the appropriate response to the breaches of standards on this occasion. A broadcast statement will provide a public denunciation of the breaches and help remedy the harm caused by the comments by making clear to listeners that such incitement for violence is not acceptable in New Zealand broadcasting. The statement may also give guidance on the application of the standards and confirm the Authority’s expectations which will have a general deterrent effect on other broadcasters.

[51]  The broadcast statement should set out the nature of the complaint and the findings in this decision.

Order
1.      Under section 13(1)(a) of the Broadcasting Act 1989, the Authority orders Radio Virsa to broadcast a statement. The statement shall:

• be broadcast on a date to be approved by the Authority within one month of the date of this decision, at the same time and on the same day of the week as the original broadcast
• contain a comprehensive summary of the upheld aspects of the Authority’s decision
• be approved by the Authority prior to being broadcast.

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 and the complainant of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

27 May 2020

Appendix

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

1.  Translation of Dasam Granth Da Sach 27 July 2019 broadcast, supplied by the Department of Internal Affairs’ Translation Service

2.  Gurpreet Singh’s complaint to Radio Virsa – 11 August 2019

3.  Email correspondence between Gurpreet Singh and Radio Virsa – 11 August - 22 September 2019

4.  Radio Virsa’s response to the complaint – 2 September 2019

5.  Mr Singh’s referral to the Authority – 24 September 2019

6.  Mr Singh’s additional submissions – 27 September 2019

7.  Radio Virsa’s final comments and clarification of initial no uphold – 17 February 2020

8.  Mr Singh’s final comments – 20 February 2020

9.  Mr Singh’s submissions on Authority’s provisional decision and orders – 7 April 2020

10.  Radio Virsa’s submissions on Authority’s provisional decision and orders, including supporting evidence – 6 April 2020

11.  Further translations provided by Radio Virsa from the 27 July 2019 broadcast, on request from the Authority

¹ The translation and transcript was provided by the Translation Service at the Department of Internal Affairs (DIA).
² Broadcasting Act 1989, sections 6 - 8
³ Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
⁴ Singh and Radio Virsa, Decision No. 2017-001 at [13]
⁵ Above at [14]
⁶ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
⁷ Guideline 1a
⁸ Guideline 1c
⁹ Flutey and Rzesniowiecki and MediaWorks TV Ltd, Decision No. 2018-102A-B
¹⁰ Guideline 4c
¹¹ Singh and Radio Virsa, Decision No. 2017-001 at [102]
¹² As above, at [99]
¹³ Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
¹⁴ Guideline 5a
¹⁵ Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
¹⁶ Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58
¹⁷ Singh and Radio Virsa, Decision No. 2017-001