BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

During a voice break on the radio music show Selectah, the presenter said, 'If you are a scooter rider, in the city, in Auckland, let me give you one piece of advice: Don't get your scooter fixed by Scootling, they charge way too much.' MediaWorks upheld a fairness complaint from the owner of Scootling and offered him a number of options for redress including an on-air apology and free advertising. The Authority disagreed with the complainant that this action was insufficient. It also declined to uphold his complaints that the broadcast otherwise breached standards relating to law and order and accuracy.

Not Upheld: Fairness (Action Taken), Law and Order, Accuracy 

Introduction

[1]  During a voice break on a radio music show, Selectah, the presenter said:

I'm waiting for my scooter guy to turn up... It seems like I'm always having to get my scooter fixed. If you are a scooter rider, in the city, in Auckland, let me give you one piece of advice: Don't get your scooter fixed by Scootling, they charge way too much.

[2]  In the next break, he recommended his 'new scooter guy' from another repair shop.

[3]  Andreas Vaioleti, the owner of Scootling Ltd, complained that the broadcast was 'malicious, false and defamatory'. MediaWorks upheld his complaint under the fairness standard.

[4]  The issues therefore are:

•  whether the action taken by MediaWorks, having upheld the complaint under the fairness standard, was sufficient; and
•  whether the broadcast otherwise breached the law and order and accuracy standards as set out in the Radio Code of Broadcasting Practice, which were also nominated in the complaint.

[5]  The item was broadcast on George FM on 19 November 2014. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Was the action taken by MediaWorks, having upheld the fairness complaint, sufficient?

[6]  MediaWorks upheld Mr Vaioleti's fairness complaint and he referred that part of his complaint to us on the basis the action taken by the broadcaster was insufficient. We are only looking at the decision of MediaWorks and the gravity of the breach as determined by the broadcaster, to the extent this influences our conclusion on the action taken.

[7]  The fairness standard (Standard 6) 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.¹

[8]  We agree with MediaWorks' decision that the broadcast was unfair to Scootling Ltd. We have previously ruled that it was inappropriate for a radio host to abuse his position on the airwaves in order to air a personal grievance, which had the potential to cause considerable damage to an identifiable business.²

[9]  At the time of broadcast (and unbeknown to the radio host), Scootling was in negotiations with George FM to advertise on its station. Following the broadcast and in response to Mr Vaioleti's complaint, the station contacted Mr Vaioleti to apologise and offered to also apologise on air. It offered Mr Vaioleti a free promotion and wanted to discuss further how they could remedy the harm caused by the broadcast.

[10]  Mr Vaioleti declined the apology and the offer of free promotion. He indicated in his referral that he is seeking financial compensation on the basis that the broadcast was 'malicious' and 'defamatory' and that the comments were aired at the beginning of the Selectah show when listeners 'would be most primed to listen and absorb anything'. Mr Vaioleti explained that he declined an on-air apology because he felt that referring to the incident would only serve to 'remind... listeners of the original negative sentiment', because an apology would not address the accuracy issue and because it would not be sufficient reparation for the harm caused to his business.

[11]  In response to the referral MediaWorks said that 'extensive efforts were made to remedy the breach' and submitted that 'there is no further appropriate action that we can take within the scope of the formal complaints process'.

[12]  In our view, George FM and MediaWorks have made their best efforts to remedy the situation to Mr Vaioleti's satisfaction. We do not see what more it could have done once Mr Vaioleti declined the proposed remedies. It appears that George FM promptly offered Mr Vaioleti a broadcast apology, a free promotion and further discussions on how to remedy the harm caused to Mr Vaioleti's business interests and reputation by the host's comments. Mr Vaioleti turned down all of its offers and indicated that he was seeking nothing less than financial compensation. An apology and free advertising were more likely to achieve a meaningful remedy for the complainant by going some way to restoring any damage to Scootling's reputation. In any case, the Authority does not have the power to award compensation of the kind Mr Vaioleti has sought.³

[13]  For these reasons, we decline to uphold the action taken complaint.

Did the broadcast breach any other broadcasting standards?

[14]  The complainant also raised the law and order (Standard 2) and accuracy (Standard 5) standards. He did not make any specific arguments in relation to law and order but considered the broadcast was 'defamatory'. He also argued that the broadcast was inaccurate and misleading because the services his business provided to the presenter were 'guaranteed and can be proven to be fair'. In summary, these standards were not breached because:

•  the broadcast did not encourage listeners to break the law or otherwise promote or condone illegal activity (Standard 2).
•  Selectah was not a 'factual programme' and the host's comments were clearly his personal opinion so the accuracy standard did not apply (Standard 5).

[15]  We therefore decline to uphold these aspects of the complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
1 May 2015

Appendix

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

1      Andreas Vaioleti's formal complaint – 19 November 2014
2      MediaWorks' response to the complaint – 5 February 2015
3      Mr Vaioleti's referral to the Authority – 17 February 2015
4      MediaWorks' response to the Authority – 27 February 2015
5      Mr Vaioleti's final comment – 11 March 2015
6      MediaWorks' final comment – 20 March 2015

¹ Commerce Commission and TVWorks Ltd, Decision No. 2008-014

² See Otago Casinos Ltd and The Radio Network Ltd, Decision No. 2013-004

³ Sections 13 and 16 of the Broadcasting Act 1989 give the Authority the power to award only compensation for a breach of privacy (up to $5,000), or legal/other costs reasonably incurred in bringing the complaint. We do not have the power to award damages or to compensate for financial harm.