Smith and NZME Radio Ltd - 2017-042 (4 September 2017)
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Phillip John Smith
ProgrammeLarry Williams Drive
BroadcasterNew Zealand Media and Entertainment
Channel/StationNewstalk ZB # 2
Paula Rose declared a conflict of interest and did not participate in the Authority's determination of this complaint.
[This summary does not form part of the decision.]
A panel segment during Larry Williams Drive discussed a recent High Court action brought by Phillip Smith against the Department of Corrections (Corrections), in which Mr Smith argued that his freedom of expression had been breached by Corrections staff preventing him from wearing his toupee. At the conclusion of the panel discussion, Mr Williams stated: ‘I say Janet, solitary confinement 24/7, dark room, with his toupee, with a little bit of waterboarding just to make it interesting’. The other panellists laughed, with one commenting, ‘You’re a hard man, Larry’. The Authority did not uphold a complaint from Mr Smith that this comment suggested he be subjected to an act of torture, which was in poor taste, and that the comment was likely to incite violence against him. The comment was clearly framed as a hyperbolic exaggeration of Mr Williams’ views for effect, and not a deliberate suggestion that Mr Smith actually be waterboarded. In the context of the broadcast, the Authority considered audiences were unlikely to have taken the comment seriously, and it was unlikely to have encouraged or motivated prisoners to act violently towards Mr Smith.
Not Upheld: Good Taste and Decency, Law and Order
 A panel segment during Larry Williams Drive discussed a recent High Court action brought by Phillip Smith against the Department of Corrections (Corrections), in which Mr Smith argued that his freedom of expression had been breached by Corrections staff preventing him from wearing his toupee. At the conclusion of the panel discussion, Mr Williams stated:
I say Janet, solitary confinement 24/7, dark room, with his toupee, with a little bit of waterboarding just to make it interesting.
 Phillip John Smith complained that Mr Williams’ comment suggested that he should be subjected to an act of torture, which was in poor taste and encouraged violence to be committed against him.
 The issue raised in Mr Smith’s complaint is whether the broadcast breached the good taste and decency and law and order standards as set out in the Radio Code of Broadcasting Practice.
 The item was broadcast at approximately 5.55pm on 16 March 2017 on Newstalk ZB. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Did the broadcast threaten current norms of good taste and decency?
 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. In a radio context, this standard is usually considered in relation to offensive language, sexual references or references to violence, but may also apply to other material presented in a way that is likely to cause offence or distress.
The parties’ submissions
 Mr Smith submitted that:
- Mr Williams was entitled to express his opinion about Mr Smith’s previous crimes, but he was not, in good taste, permitted to suggest that Mr Smith should be subjected to an act of torture as punishment for those offences or for enforcing his rights through a lawful judicial process.
- Restraining Mr Williams’ comments that ‘vile acts of violence should be perpetrated against [Mr Smith]’ was a justifiable limitation on the right to freedom of expression.
- Mr Smith had the right not to be harmed by unconstrained freedom of expression in the form of comments suggesting he should be waterboarded, an act of torture.
- Whatever Mr Williams’ tone of voice, he did not specifically say he was joking, and even if he was, suggesting a human should be locked in a small dark room to be subjected to waterboarding was not a joke made in good taste in any context.
- Whether or not Mr Williams intended that he should be waterboarded misses the point, there was nevertheless the potential Mr Smith would be harmed as a direct result of his comments.
 NZME submitted that:
- NZME accepted that there was a high level of specificity in the comment and it was directed at Mr Smith personally, which he found distasteful.
- However, a number of contextual factors should be considered, including:
- Newstalk ZB is an adult-targeted radio station for 30-49 year olds.
- Mr Williams is well known for delivering opinionated, assertive and direct views on matters of public interest.
- Mr Williams’ show is broadcast five days a week, and he has many years of experience in the broadcasting industry.
- Listeners expect topical subjects to be robustly commented on and debated during the show, in order to stimulate audience reaction.
- Mr Williams’ tone when saying the comment subject to complaint had clearly lifted from the preceding serious discussion about Mr Smith’s High Court action. The comment was delivered with a humorous lilt, indicating that it was not to be taken seriously. Both contributors to the panel also noticed this, and laughed at Mr Williams’ statement.
- In floating the idea that Mr Smith would be waterboarded, a clear act of torture which would never be employed in New Zealand prisons, Mr Williams was clearly not intending for the statement to be taken literally. The idea was so extreme and disconnected with reality that it could only be understood as an absurd figure of speech.
- Mr Williams’ comment was light-hearted, brief, off the cuff and a one-off that was not repeated. It did not contain ‘repeated layers of graphic imagery’ (contrary to the comments made in Blissett).1
- Mr Williams was exercising his right to freedom of expression in regard to his opinion of Mr Smith, given the context of his recent litigation and crimes for which he had been convicted. Mr Williams could have expressed his opinion differently, but he did not seriously advocate or encourage the use of torture against Mr Smith. He was deliberately exaggerating his language to illustrate his opinion.
- It was not only Mr Smith’s opinion which needed to be considered in this assessment. The general public would not consider this statement to be a breach of the good taste and decency standard given the context of the discussion and Mr Smith’s profile in the public eye.
 When we make a determination on a complaint alleging a breach of broadcasting standards, we first give consideration to the right to freedom of expression. We weigh the value of the broadcast item, as well as the broadcaster’s right to freedom of expression, and the audience’s right to receive information, against the level of actual or potential harm that might be caused by the broadcast. In this case, Mr Smith has submitted that Mr Williams’ comment, in which he allegedly suggested Mr Smith be subjected to an act of torture, was in poor taste and resulted in the risk of harm to Mr Smith.
 For reasons we expand upon below, we do not consider the alleged potential harm in this case outweighed the broadcaster’s right to freedom of expression.
 We acknowledge that Mr Williams’ comment was specific, directed at a particular named individual in New Zealand society, and made light of him being subjected to waterboarding. We agree with NZME that Mr Williams’ views regarding Mr Smith and the outcome of his court case could have been expressed differently.
 However, we do not consider that the comment threatened current norms of good taste and decency in the context of the broadcast, or that it justified limiting the important right to freedom of expression in this case. Context is crucial in determining whether a broadcast seriously violates community norms of taste and decency, and a broadcast’s context may, in some cases, minimise its harmfulness.2
 The comment was preceded by a serious conversation in which the panelists expressed their views about the outcome of Mr Smith’s court case. We have found that Mr Williams’ comment represented a clear shift in tone, from the serious to the absurd. It was a throwaway line reflecting Mr William’s apparent frustration with the outcome of Mr Smith’s case. The other panelists’ reactions to the comment, in which they laughed and one commented in response, ‘You’re a hard man, Larry’, indicated that it was not to be taken seriously. Further, the comment subject to complaint was brief, was not elaborated on, and lacked any level of detail or graphic imagery regarding waterboarding or any other violent acts.
 Larry Williams Drive on Newstalk ZB is targeted at, and likely to be listened to, an adult audience (especially at the time of broadcast just before 6pm). The programme is described as follows: ‘With a straight down the middle approach, Larry Williams Drive on Newstalk ZB delivers the very latest news and views to New Zealanders as they wrap up their day. Assertive, direct and opinionated, Larry is well respected by leading news makers, business leaders and political insiders’.3
 We are satisfied that, given audience expectations of the programme, listeners were likely to interpret the comment as a hyperbolic statement. In the context of a robust discussion about a contentious court case, we consider the programme’s audience would understand that the comment was a deliberate exaggeration of Mr Williams’ views for comedic effect, and not a suggestion that Mr Smith actually be waterboarded. We therefore consider this comment would not have been outside audience expectations of the programme and host.
 Having regard to the above relevant factors, we therefore find insufficient justification for us to interfere with the right to freedom of expression in this case. Mr Williams was entitled under this right to express his view, provided this was not outweighed by any likely harm caused to any individual or to audiences generally. We are satisfied Mr Williams’ right was not outweighed here.
 Accordingly we do not uphold the good taste and decency complaint.
Did the broadcast encourage viewers to break the law, or otherwise promote, condone or glamorise criminal activity?
 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.4 The standard is concerned with broadcasts that actively undermine, or promote disrespect for, the law or legal processes.
The parties’ submissions
 Mr Smith submitted that:
- There was a risk that the comments made by Mr Williams, an influential media commentator, could be interpreted by a listener as a suggestion or endorsement that an unlawful act (waterboarding or another act of violence) should be carried out.
- In the present context, listeners included prisoners that had direct access to Mr Smith and were impressionable and extremely violent. It was another prisoner that drew Mr Smith’s attention to Mr Williams’ comments. The extremes of the prison environment could not be underestimated. Mr Smith, as a prisoner, had a particular vulnerability and the likelihood of harm being caused by Mr Williams’ comments was higher for himself than for ordinary members of the public.
- It was not necessary that Mr Williams intended Mr Smith should be waterboarded. The lower threshold of recklessness or carelessness would suffice if the Authority was satisfied that in the particular circumstances of this case, there was a risk that Mr Williams’ comments could have motivated another prisoner to act violently towards Mr Smith.
 NZME submitted that:
- Mr Williams’ statement was a brief, throwaway comment that was used as an expression rather than as serious encouragement for the act of waterboarding.
- Mr Williams did not advocate the actual torture of Mr Smith. The comment was not intended to be taken literally or likely to be taken literally.
- It was very unlikely that the practical effect of Mr Williams’ statement would be to incite violence against Mr Smith, or that he would be waterboarded because of Mr Williams’ opinion. The comment would not incite reasonable listeners to commit illegal acts. Mr Williams’ freedom of speech should not be curtailed on the (very unlikely) basis that a non-rational, violent offender would commit an unlawful act against Mr Smith purely on the basis of Mr Williams’ comment.
 To find a breach of this standard, a broadcast must actively undermine the law or directly incite the audience to break the law, if there is a real likelihood that viewers or listeners will act on it.5
 For similar reasons to those outlined above under good taste and decency, we do not consider Mr Williams’ comment could be construed as seriously encouraging the waterboarding of Mr Smith, and listeners were unlikely to interpret it as such.
 We acknowledge Mr Smith’s submissions regarding his particular vulnerability in the prison environment, however in the context of the broadcast, we do not consider the comment would have encouraged or incited violent acts, allowing us to find a breach of the standard. This comment was depicted and treated by the presenters as a throwaway line, and we are satisfied audiences would have viewed it in the same way.
 We therefore do not uphold this aspect of Mr Smith’s complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
4 September 2017
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Phillip Smith’s formal complaint – 20 March 2017
2 NZME’s response to the complaint – 24 April 2017
3 Mr Smith’s referral to the Authority – received 15 May 2017
4 NZME’s response to the referral – 2 June 2017
5 Mr Smith’s final comments – received 23 June 2017
6 NZME’s final comments – 3 July 2017
1 Blisset and RadioWorks, Decision No. 2012-006, in which the Authority found Michael Laws’ comments about shooting journalists (in the context of the ‘tea tapes’ scandal) breached good taste and decency. In that case, the Authority found there was ‘no softening of the words delivered with laughter or light-heartedness’. The combination of the length of the comments, the repeated use of graphic imagery, the specificity of the comments in relation to identified journalists and its mode of delivery, made the statement unacceptable.
2 Commentary to Standard 1 – Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
4 See, for example, Keane and Television New Zealand Ltd, Decision No. 2010-082
5 Commentary: Standard 5 – Law and Order, Broadcasting Standards in New Zealand Codebook, page 15.