BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has upheld complaints from two complainants about a segment of Punjabi talkback programme Panthak Vichar, broadcast on Access Community Radio Inc (Planet FM). During the programme, the hosts made a number of allegations against the complainants, regarding their fundraising activities and whether they were trustworthy, and played a recorded phone conversation with Jaspreet Singh on-air. The Authority found that the comments reflected negatively on the complainants, and that Jaspreet Singh would not have known that the phone call would be played on-air. The Authority upheld the complaint under the fairness standard but did not uphold the remaining aspects of the complaint.

Upheld: Fairness.
Not Upheld: Accuracy, Privacy, Good Taste and Decency, Programme Information, Discrimination and Denigration

The broadcast

[1]  On 06 May 2019, Planet FM (Community Access Radio Inc), broadcast Punjabi talkback programme, Panthak Vichar.

[2]  As this programme was broadcast in Punjabi, we sought an independent translation and transcription of the relevant segment from the Translation Service at the Department of Internal Affairs (DIA). According to the translation we have been provided, during this broadcast segment, host Sahib Singh made a number of allegations against the complainants, regarding their fundraising activities and whether they were trustworthy. During the programme, a recorded phone conversation between Jaspreet Singh and an unidentified third party was also broadcast.

[3]  According to the transcription, the host Sahib Singh’s comments included the following:

I wrote spontaneously that whosoever want to help, he or she should donate directly to the farmers as we have heard and seen a lot of scams and frauds in this regard…and Manjinder Singh Bassi started to comment…Why you are calling it scam…I think that he has lost his mental balance because there had never been any conversation about the scams and anything else.

…He will talk to you in a very authoritative way as he is your boss. Perhaps such people often lose their mental balance whenever they transact a million dollars.

…

Now they have issued this threatening letter type thing [instead] of giving a direct reply. They should make everything transparent and public…Will it be appropriate if 40-50 form a society and pass a resolution that ‘theft is rightful’?

[4]  During the broadcast, host Sahib Singh also relayed a story about another (unnamed) ‘Indian Society of Christchurch’ (which he said was alleged to have been criticised by a Judge for providing an allegedly untrue letter of support for a male nurse who was found guilty of assault) to illustrate the point that official organisations can be untrustworthy.

[5]  As part of our consideration of this complaint, we have read the translations provided by DIA and the correspondence listed in the Appendix to this decision. All parties agreed generally with the translations provided by DIA.

The complaints

[6]  Jaspreet Singh complained that the broadcast breached the fairness, accuracy, privacy, discrimination and denigration and programme information standards for the following reasons:

• A recording of a private conversation between Jaspreet Singh and an unnamed party was played on-air.
• He was not informed that he would be discussed on air or that the recording of the conversation would be played.
• After the recording was played the host started to ‘defame’ Jaspreet Singh.
• The recording was not available on Facebook or publicly on any social media.
• Subsequent action taken by Planet FM to address their breach was insufficient as Planet FM ‘failed to discipline the hosts’ and they were ‘still continuing their agenda of settling personal scores with certain individuals’.
• The hosts’ apology did not meet his expectations as compared to the English version provided by Planet FM management.

[7]  Manjinder Singh Bassi complained that the broadcast breached the fairness, accuracy, discrimination and denigration, programme information and good taste and decency standards for the following reasons:

• Host Sahib Singh called a press release of the Supreme Sikh Society ‘a threat letter’.
• The description of an assault by a nurse was inaccurate.
• The host alleged that Manjinder Singh Bassi had promised to openly declare his assets.
• The host made personal attacks against Manjinder Singh Bassi, putting ‘baseless allegations’ and ‘tried to disrespect and demean’ him ‘by calling him corrupt and [a] retard.’

[8]  Both complainants submitted that the presenters are causing ‘a lot of anguish and frustration’ and ‘unrest amongst the community.’

The broadcaster’s response

[9]  Planet FM upheld Jaspreet Singh’s complaint under the fairness standard and offered him the opportunity to respond during a live or pre-recorded interview. It also stated that the following apology would be broadcast at the beginning and end of the 17 June 2019 programme:

In the May 6 broadcast of Panthak Vichar we played an audio clip obtained through Facebook. The individual in the recording was not made aware that the audio would be played on our broadcast, and was not given reasonable right of response. We wish to apologise unreservedly for the unfair nature in which this recording was broadcast. 

[10]  Planet FM upheld Manjinder Singh Bassi’s complaint under the discrimination and denigration standard, and stated that the following apology would be broadcast, also at the beginning and end of the 17 June 2019 programme:

In the May 6 broadcast of Panthak Vichar we made reference to the mental wellbeing of an individual during a discussion about the spending of public funds.

We wish to withdraw the statements made alluding to Manjinder Bassi’s mental state and acknowledge that these comments were SOLELY THE OPINION of the broadcaster; and that they were unnecessary, unfair and may have been damaging to his reputation. We wish to apologise for any harm caused by these comments.

[11]  An apology was broadcast in Punjabi and translated by DIA as follows:

We used the words ‘mental balance doesn’t seem right’ etc. while describing fundraising during the programme Panthak Vichar Manch on 6th May 2019. Those were our personal views. If anyone has incurred any loss due to that, we withdraw those words. An audio was also played during the programme, perhaps the concerned person didn’t know about it. We apologise for that also.

[12]  Planet FM did not uphold either of the complaints under the remaining standards for the following reasons:

Accuracy

• The use of ‘perhaps’ made it possible for a listener to ‘reasonably ascertain which information was fact and which was the host’s opinion’.

Good taste and decency and fairness (Manjinder Singh Bassi only)

• The topics of discussion were of genuine public interest and legitimate grounds for scrutiny.

Privacy

• The recording was already in the public domain.
• During the recording the complainant accepted the audio would be made public.

Discrimination and denigration (Jaspreet Singh only)

• There was no material in the complaint that would qualify as discrimination and denigration.

The relevant standards

[13]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in any broadcast. Its purpose is to protect the dignity and reputation of those featured in programmes.¹

[14]  The accuracy standard (Standard 9) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead.

[15]  The good taste and decency standard (Standard 1) states that current norms of good taste and decency should be maintained, consistent with the context of the programme. The Authority will consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause widespread undue offence or distress.²

[16]  The programme information standard (Standard 2) is concerned with ensuring audiences are properly informed about the likely content of a broadcast.³ In a radio context, this means that where a broadcast may be outside audience expectations of the radio station or programme, an audience advisory should be broadcast.⁴

[17]  The discrimination and denigration standard (Standard 6) 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.

[18]  The privacy standard (Standard 10) reflects the high value our society places on privacy. It requires broadcasters to 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.⁵

Our findings

[19]  We value the right to freedom of expression in New Zealand. This means that we value the right of individuals to express opinions and ideas, even where those ideas might be critical or unpopular, provided they do not cause undue harm. When we make a decision on a complaint that broadcasting standards have been breached, we therefore weigh the right to freedom of expression against the harm that is alleged to have been caused by the broadcast. In this case, the complainants have submitted that the host’s comments were inaccurate, reflected negatively on them and caused unrest in their community.

Fairness

[20]  In considering this standard, we note that Planet FM upheld Jaspreet Singh’s complaint but not Manjinder Singh Bassi’s. We will first consider whether in our view the standard was breached in relation to both complainants, and then consider whether the action taken by Planet FM in response to Jaspreet Singh’s complaint was sufficient in the circumstances.

[21]  A consideration of what is fair will depend on the nature and context of the programme, including the public significance of the broadcast.⁶ Programme participants and people referred to in a broadcast 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.

[22]  The fairness standard is therefore concerned not simply with how individuals and organisations are portrayed in a broadcast, but also with the process by which the broadcaster, prior to broadcast, gathers material and deals with those who will be referred to or featured.⁷

[23]  It is not unreasonable for a radio host to raise questions about leadership in their community or about the validity of a fundraising effort, as this is in the public interest. However, where the expression of critical ideas might adversely affect individuals or organisations referred to in a broadcast, a key principle of the fairness standard is that those individuals or organisations referred to should be given a fair and reasonable opportunity to comment in response.⁸

Comments about the complainants

[24]  We consider that the host’s comments reflected negatively on both complainants. He implied that money raised by the complainants, both of whom were named in the broadcast, would not be used for the purpose it was being raised for. He made specific comments implying that Manjinder Singh Bassi was mentally ill and inferring that the complainants were thieves (see paragraph [3] above).

[25]  If the host wanted to scrutinise the fundraising efforts of the complainants in a manner that might adversely affect them, he should have offered them a fair and reasonable opportunity to comment.

[26]  In order to comply with the standard, the broadcaster was required to provide that opportunity to comment prior to the broadcast and to reflect the complainants’ positions in the broadcast. This was not done.

The phone call

[27]  Broadcasters must not broadcast information obtained by misrepresentation or deception except where justified in the public interest.⁹ The broadcaster has presented no evidence that the recording of this call was publicly available on social media. The translation of the phone call also indicates that Jaspreet Singh was not aware (until well into the conversation) that it was being recorded and contains nothing to indicate that Jaspreet Singh would have reasonably been aware that it would be broadcast on radio.  

[28]  We also considered that there was no public interest in broadcasting the phone call. The translation of this call suggests that it demonstrated a spirited challenge of Jaspreet Singh (to which he responded in an equally spirited manner).  In our view it did not advance any allegations or other matters which might be in the public interest, and the host could have scrutinised Jaspreet Singh’s actions in the same way by informing Jaspreet Singh of his participation or without broadcasting the call.  Accordingly, given Jaspreet Singh did not know the phone call was being recorded or would be broadcast, he should have been informed and given an opportunity to respond or comment on the phone call.¹⁰

[29]  We are satisfied that upholding this aspect of the complaint does not represent an unreasonable or unjustified limit on the broadcaster’s right to freedom of expression. We accept that the host was entitled to express his opinions provided he did so in a way that met broadcasting standards. Where his comments had the potential to adversely affect the complainants, who were named during the broadcast, the complainants should have been advised of the allegations to be made against them and given an opportunity to respond to the negative comments made about them and for their position to be included in the broadcast.

[30]  We therefore uphold both complaints under the fairness standard.

Action taken

[31]  The next question for us to consider is whether the actions taken by the broadcaster remedied the harm caused to Jaspreet Singh by the broadcast. We consider they did not. While the broadcaster made the offer of an apology, the actual apology broadcast only referred to the playing of the recorded phone call and not any of the other comments made which we found to breach the fairness standard.

[32]  We also note that the broadcaster gave an undertaking to give a comprehensive apology, which was not met with the actual apology broadcast. We acknowledge that the broadcaster did attempt to resolve the complaint. However, when undertakings are given and not met, this risks compounding the harm.

[33]  The broadcaster also offered to interview Jaspreet Singh although he did not respond to the offer. The offer of a right of reply may in some cases be a suitable step to take to mitigate any harm following a breach of the fairness standard (if the opportunity has been provided with reasonable time to respond and efforts are made to convey the subject’s comments on the issues in a fair and timely manner). However, in this instance, we do not consider this offer was sufficient to remedy the breach, particularly in the absence of an adequate apology. Given the tenor of the original programme and the failure to deliver the promised apology, we can understand why Jaspreet Singh might have chosen to not participate in any further interview. By this point in the process, his expectation of being treated fairly would have been greatly reduced.

[34]  For the above reasons we consider the action taken under the fairness standard was insufficient.

Accuracy

[35]  The accuracy standard requires broadcasters to ‘make reasonable efforts’ to ensure that news, current affairs and factual programming is accurate in relation to material (or important) points of fact, and does not mislead.

[36]  The accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion,¹¹ and talkback programmes will not usually be subject to the accuracy standard.¹² However, the Authority has previously applied the accuracy standard to Panthic Vichar.¹³

[37]  The statements complained about appear to be a variety of statements of opinion and fact from which the opinion is derived. We address each statement below.

Supreme Sikh Society Letter

[38]  Manjinder Singh Bassi submitted that the reference to the update from the Supreme Sikh Society (SSS) as threatening was inaccurate. This statement is translated as ‘it seems just like a threatening letter’, which is clearly a statement of opinion from the host to which the accuracy standard does not apply.

Manjinder Singh Bassi’s promise to openly declare his assets

[39]  The host discussed the making public of account books for a fundraising scheme. Manjinder Singh Bassi submitted that the host’s assertion that he (Manjinder Singh Bassi) would make his accounts public was inaccurate as he had not made that promise. However, the host’s comments about the accounts are generally framed as his own opinion (‘I thought earlier that perhaps Manjinder Singh Bassi is collecting the whole money’). He was also providing his views as to why the account books should be made public (‘then everything will be crystal clear and there is not any concealing at all in it’). We consider these comments to also be statements of opinion to which the accuracy standard does not apply.

[40]  As to the host’s assertion that Manjinder Singh Bassi would ‘make everything public’, which Manjinder Singh Bassi has disputed, we do not have any evidence to support either claim. However, this comment, within its surrounding context, would appear to listeners to be the host presenting his understanding of the situation and not a statement of fact.

Assault by nurse

[41]  Manjinder Singh Bassi also complained that the host’s comments about an incident of assault by a nurse were misleading. The host relayed a story about another (unnamed) ‘Indian Society of Christchurch’ which was criticised by a Judge for providing an allegedly untrue letter of support for a male nurse accused of inappropriate behaviour. The story is presented as an example showing that statements from societies such as the SSS cannot be relied on simply because of ‘that Organisation’s prestige’.

[42]  We consider this anecdote immaterial to the broadcast as a whole and unlikely to significantly affect the audience’s understanding of the programme as a whole.¹⁴

[43]  We therefore do not consider that this broadcast was in breach of the accuracy standard, and we do not uphold the accuracy complaint.

Privacy

[44]  The privacy standard applies only to ‘identifiable individuals’¹⁵ and restricts disclosure of ‘private information or material’ about such an individual in a ‘highly offensive’ manner.¹⁶

[45]  The complaint under this standard related to the broadcast of the phone call with Jaspreet Singh.  We accept that he was identified for the purposes of the standard (and was not aware he was being recorded for at least part of the conversation). However, the standard is directed at the public disclosure of private facts in a highly offensive manner and the broadcasting of even an apparently private phone call is not alone sufficient to breach the standard.¹⁷ 

[46]  The only information disclosed was Jaspreet Singh’s name and his involvement in the public fundraising discussed. We do not consider this private information, over which he could have a reasonable expectation of privacy. The broadcast of this phone call is therefore more appropriately addressed under the fairness standard.

Remaining standards raised

[47]  We do not uphold the complaint under the remaining standards raised, for the following reasons:

• Good Taste and Decency: In a radio context, this standard is usually considered in relation to offensive language, sexual material or, sometimes, violence.¹⁸ This broadcast, however, did not contain any material, such as offensive language or sexual material, in breach of this standard.
• Programme Information: We do not consider this broadcast to have been outside audience expectations or to have required an audience advisory.¹⁹
• Discrimination and Denigration: The discrimination and denigration standard only applies to recognised ‘sections of the community’ which is consistent with the grounds for discrimination listed in the Human Rights Act 1993.²⁰ It does not apply to individuals and organisations.²¹

[48]  We therefore do not uphold these aspects of the complaint.  

For the above reasons the Authority upholds the complaints that the broadcast by Planet FM of Panthak Vichar on 6 May 2019 breached Standard 11 of the Radio Code of Broadcasting Practice.  

[49]  Having upheld one aspect of the complaints, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. Alternatively, we may determine that the publication of our decision is sufficient to censure the conduct of the broadcaster and to provide guidance to the broadcaster which is the subject of the complaints, and other broadcasters more generally. We invited submissions on orders from the parties.

The parties’ submissions on orders

[50]  The broadcaster submitted that:

• ‘…considerable time was spent investigating the complaints received. Planet FM Management took considered steps to reach a conclusion that addressed both the numerous concerns of the complainants and the public interest of the matters discussed.’
• ‘It was with clear intention that the right of response presented to Jaspreet Singh was offered with the option to pre-record, and with facilitation of Planet FM as a third party.’
• ‘We trust that the BSA acknowledges the complicated nature of the complaints and recognises that the station’s decision to broadcast an apology was not taken lightly.’

[51]  We have not received submissions from Manjinder Singh Bassi and Jaspreet Singh has only responded to request ‘action’.

Our decision on orders

[52]  In determining the appropriate response, the factors we take into consideration include:²⁰

• 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.

[53]  In this case, our primary concern was the inadequacy of the apology issued by the hosts. In our view, while Planet FM management acknowledged the complaints and made efforts to mitigate the breach, the hosts of Panthak Vichar in their apology did not go far enough to remedy the harm.

[54]  Last year we upheld a similar complaint between Manjinder Singh Bassi and Planet FM, and made no orders, but provided Planet FM with guidance directing it to improve its formal complaints process. With this complaint we see that it has made efforts to do so. Planet FM in its submissions on orders advised us that it spent ‘considerable time’ investigating and addressing the concerns of the complainant.

[55]  For those reasons, and given that we received limited submissions on orders from the complainants, we consider issuing this decision is sufficient to censure the hosts and provide further guidance on how the standards apply.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

16 December 2019

Appendix

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

1                 Translation of Panthak Vichar, broadcast 6 May 2019 – Translation Service, Department of Internal Affairs

2                 Jaspreet Singh’s formal complaint to Planet FM – 20 May 2019

3                 Manjinder Singh’s formal complaint to Planet FM – 20 May 2019

4                 Planet FM’s response to Jaspreet Singh – 12 June 2019

5                 Planet FM’s response to Manjinder Singh – 12 June 2019

6                 Translation of Panthak Vichar, broadcast 17 June 2019 – Translation Service, Department of Internal Affairs

7                 Jaspreet Singh’s referral to the Authority – 28 June 2019

8                 Greg Bradford’s referral to the Authority on behalf of Manjinder Singh – 3 July 2019

9                 Mr Bradford’s confirmation of standards raised – 10 July 2019

10              Jaspreet Singh’s confirmation of standards raised – 11 July 2019

11              Planet FM’s submissions on the provisional decision – 1 November 2019

12              Jaspreet Singh’s submissions – 2 December 2019

¹ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
² Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
³ Commentary: Programme Information, Broadcasting Standards in New Zealand Codebook, page 12
⁴ Guideline 2a
⁵ Commentary: Privacy, Broadcasting Standards in New Zealand Codebook, page 21
⁶ Guideline 11a
⁷ See Guidelines 11b, 11c and 11d
⁸ Guideline 11d
⁹ Guideline 11f
¹⁰ Guideline 11b
¹¹ Guideline 9a
¹² Guideline 9d
¹³ See Supreme Sikh Society, Kalgidhar Sports Club & Majinder Singh Bassi and Planet FM, Decision No. 2018-040 at [16]-[20]
¹⁴ Guideline 9b
¹⁵ Guideline 10a
¹⁶ Guideline 10b
¹⁷ Simpson and the Radio Network Ltd, Decision No. 1999-058
¹⁸ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
¹⁹ Guideline 2a
²⁰ Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58