BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

During a broadcast of Mike Hosking Breakfast, Hosking discussed his predictions for the upcoming Hamilton West by-election, commenting that Dr Gaurav Sharma would be the ‘biggest loser’ and stating he was a ‘nobody.’ Later in the programme, Hosking discussed the Broadcasting Standards Authority’s (our) recently released annual report, commenting the BSA is ‘a complete and utter waste of time.’ The complainant alleged these comments breached multiple broadcasting standards. In the context of the broadcast, the Authority found Hosking’s comments were not likely to cause widespread disproportionate offence or distress, and did not result in any unfairness to Dr Sharma or the BSA. The discrimination and denigration, balance, accuracy and privacy standards either did not apply or were not breached.

Not Upheld: Offensive and Disturbing Content, Discrimination and Denigration, Balance, Accuracy, Privacy, Fairness

The broadcast

[1]  The Mike Hosking Breakfast programme, broadcast on 9 December 2022 on Newstalk ZB, included a discussion of Hosking’s predictions for the Hamilton West by-election occurring the following day. Hosking began with his predictions in relation to candidate Dr Gaurav Sharma, stating:

Right, prediction time for tomorrow in Hamilton-West. Biggest loser will be Gaurav Sharma who will barely register thus telling him a couple of things. One – the noise he made about Labour amounts and counts for nothing, he was a nobody, he is a nobody, he will go back to being a nobody. And a government that wins with the numbers Labour did in 2020 brings in a lot of nobodies of course, who essentially hang out for three years, making no impression whatsoever and basically wait for the tide to sweep them back out three years later. The idea that people would latch onto his narrative and make him some sort of hero was always delusional. Although I’m sure at least part of what he said was true, essentially no one cares – it was classic beltway. Same with Uffindell this year, a few days’ worth of headlines for the Wellington wonks, beyond that it barely registered.

[2]  Later in the programme, Hosking discussed the Broadcasting Standards Authority’s (our) recently released annual report:

So the BSA’s annual report is out. The most complained about programme of the year as far as I can work out is TV1 News. Second most complained about programme of the year is TV3 News. And they had a bunch of complaints – 29 complaints against them TV1 and 25 against TV3 – every single one of them was dismissed. Every single one of them was dismissed. And what I’ve said year in year out about the Broadcasting Standards Association – or Authority – is it’s a complete and utter waste of time. They hear from whingers and moaners who’ve got nothing better to do with their lives. It’s the classic example of if you give people an avenue to moan, they will use it. If the media in this country was in a state that you, well fair enough you need an Authority because it’s out of hand, fine, but it’s not. It’s very well policed, very well managed, by and large it’s a very professional group of people who put overall a very high quality series of products out for you to listen and watch and read etc. So most of the – I can’t remember I saw it somewhere, I think maybe 4% or something like that of the things were upheld, and they were upheld on often spurious claims. Anyway, we made it, because someone complained about me referring to Meghan Markle – oh the irony on this very day – of me referring to Meghan Markle as a ‘hussy.’ […] The Authority decided it would not likely cause widespread upset which of course, it didn’t. And for every year that goes past there are people like that that do nothing but write letters to these people and there are people paid to sit around the table going, so what’d they do, and then they’ve got to write up a big long winded report that goes absolutely nowhere.

[3]  Hosking went on to read out a text message that had come through from an audience member in relation to his comments on the BSA:

“Mike I complained to the BSA about Three Waters misleading television ads, my complaint went through several stages and to a hearing, they dismissed my complaint, the BSA is politically corrupt.” Well they’re not. But you know, that’s the difficulty if you believe that you’re right and you turn out to be wrong then you think they’re corrupt…

The complaint

[4]  The complainant, YS, was of the view Hosking’s comments about Dr Sharma and the BSA breached several broadcasting standards:

Offensive and Disturbing Content

• Hosking’s remarks about Sharma being a ‘nobody’ were ‘offensive and wrong.’ They defamed and discriminated against a public political figure, which ‘poses a problem for any member of the public who wishes to enter the political arena as a representative’ in Parliament.
• Hosking’s remarks about the BSA were offensive as they implied making complaints to the BSA was a ‘futile exercise’ and were intended to dissuade the public from lodging complaints.

Discrimination and Denigration

• Hosking’s comments towards Dr Sharma were discriminatory as he was called a ‘nobody’ and no reference was made to his ‘educational achievements in medicine, academic prowess, and social contributions.’
• The comments towards the BSA were denigrating.

Balance

• Hosking’s comments on both topics, along with many other topics he discusses on his programme, were unbalanced.

Accuracy

• Hosking’s portrayal of Dr Sharma lacked accuracy and carried ‘wilful blindness and contempt to the reality of his personhood.’

Privacy

• Hosking breached Dr Sharma’s privacy through his defamatory comments.

Fairness

• Hosking’s comments were unfair to Dr Sharma and the BSA respectively. ‘There is intent to undermine the credibility of all parties concerned.’ Neither party was given a right of reply.
• It was unfair to the BSA ‘to attempt to obstruct, prevent and pervert due process and rule of law obligations with intent to dissuade a complainant’ from making a complaint.

[5]  In their referral to the Authority, the complainant identified the promotion of illegal and antisocial behaviour standard¹ as also being breached. Under section 8(1B) of the Broadcasting Act 1989, we are only able to consider the complaint under the standards raised, either explicitly or implicitly, in the original complaint to the broadcaster.² In our view the promotion of illegal and antisocial behaviour standard cannot be reasonably implied into the wording of the original complaint, which clearly specified the above standards as being breached and did not raise concerns relating to the promotion of illegal or serious antisocial behaviour standard. Therefore, our decision is limited to the standards identified above.

[6]  The complainant has requested we review Hosking’s comments across the programme generally when assessing the balance standard. Our jurisdiction is broadcast specific. Accordingly, while we might take into account the existence of other relevant programming in assessing a particular broadcast’s compliance with the balance standard, we have no jurisdiction to assess a broadcaster’s programming over time.³

[7]  The complainant also raised concerns about the way their initial formal complaint was dealt with by the broadcaster, NZME Radio Ltd. The complainant was concerned they had to re-submit their complaint after NZME did not receive their original submission, and that some of the correspondence between them included erroneous dates for the broadcast. We acknowledge the difficulties the complainant experienced in lodging their complaint and their frustration with the process. However, we note there is nothing to suggest these mistakes arose from anything but genuine error. In any event, the broadcaster has now responded thoroughly to the concerns raised, and we therefore go on to consider the substantive complaint.

The broadcaster’s response

[8]  NZME did not uphold the complaint for the following reasons:

Offensive and Disturbing Content

• ‘Having regard to audience expectations of this programme and Newstalk ZB generally’, NZME did not consider the comments regarding Dr Sharma or the BSA ‘seriously violated community standards of taste and decency or disproportionately offended or disturbed the audience.’

Discrimination and Denigration

• As this standard only applies to recognised ‘sections of the community’, rather than to the treatment of particular individuals such as Mr Sharma or organisations such as the BSA, the standard does not apply to the complainant’s concerns.

Balance

• Comments re Dr Sharma: ‘We accept that the Mike Hosking Breakfast show is a news and current affairs programme to which this standard may apply. However, the topic being discussed, that is, Mr Sharma’s chances to win the Hamilton-West By-Election, is not a controversial issue of public importance and therefore this standard does not apply. Furthermore, it is an established principle of this standard that programmes can portray an issue from a particular perspective as long as this is clearly signalled in the programme. We consider that it would have been clear to listeners that it was the perspective of the host that was being presented here during this particular segment.’
• Comments re BSA: ‘The subject matter being discussed, that is, whether a regulatory body such as the BSA is needed to oversee radio and television broadcasters, is not a “controversial issue of public importance” within the meaning of this standard and therefore this standard does not apply.’

Accuracy

• Hosking’s comments on both topics were clearly distinguishable as analysis, comment or opinion, rather than statements of fact. On this basis, the accuracy standard was not breached.

Privacy

• As no private information or material was disclosed during the segments, the privacy standard does not apply.

Fairness

• Comments re Dr Sharma: The fairness standard is not intended to prevent criticism of public figures, and the threshold for finding unfairness will be higher for a politician familiar with dealing with the media.
• Dr Sharma’s ‘allegations of bullying and his expulsion from the Labour Party were the subject of ongoing media coverage throughout the second half of 2022 and in respect of which [Dr Sharma] was the subject of widespread media criticism. The host was entitled to voice his opinion on [Dr Sharma’s] performance as an MP and on his chances of being re-elected and we do not consider that the host’s comments during this segment resulted in unfairness to [Dr Sharma].’
• Comments re BSA: ‘Firstly, no individual complainants were identified by the host. In addition, having regard to the nature of the show and the fact that the BSA is a public-facing organisation, we do not consider the host’s comments resulted in unfairness to the BSA.’

The standards

[9]  The purpose of the offensive and disturbing content standard⁴ is to protect audiences from viewing or listening to broadcasts that are likely to cause widespread disproportionate offence or distress or undermine widely shared community standards.⁵

[10]  The fairness standard⁶ protects the dignity and reputation of those featured in programmes.⁷ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

[11]  We consider the offensive and disturbing content and fairness standards to be most relevant to the complaint, and so have focused our decision on these standards. However, we briefly address the remaining standards at paragraph [22].

Our analysis

[12]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[13]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.⁸

Offensive and disturbing content

[14]  In assessing whether a broadcast is likely to cause widespread disproportionate offence or distress or undermine widely shared community standards, the context in which such content occurs and the wider context of the broadcast are crucial.⁹ This may include:

• the public interest in the programme
• the nature of the broadcast
• the time of broadcast
• any audience advisories/warnings
• the target and likely audience
• audience expectations of the programme and the channel/station.

[15]  Relevant contextual factors in this case include:

• Mike Hosking Breakfast is a news and current affairs/talk radio show which airs from 6-9am on weekdays.¹⁰
• Newstalk ZB is an adult targeted radio station for 35-64 year olds.¹¹
• Hosking is well-known for his strong opinions and provocative, outspoken style.¹²
• Audience expectations of Newstalk ZB as a station, and the Mike Hosking Breakfast programme are such that audience members expect robust, opinionated discussion and sometimes controversial views in the interests of generating debate about topics of public interest.¹³

[16]  With this context in mind, we address the complainant’s concerns about the two segments:

• Comments re Dr Sharma: We acknowledge the complainant was offended by Hosking’s comments about Dr Sharma being a ‘nobody.’ However, while strong, the comments did not overstep audience expectations for Mike Hosking Breakfast. The comments constituted Hosking’s opinion on Dr Sharma’s chances in the Hamilton West by-election. In the context of comments regarding a public figure and politician, we do not consider these reached a threshold justifying regulatory intervention.
• Comments re the BSA: The complainant alleged Hosking’s remarks about the BSA were offensive as they implied making complaints to the BSA was a ‘futile exercise’ and were intended to dissuade the public from lodging complaints. The BSA is a crown entity and as such, is open to public scrutiny. The comments represented Hosking’s opinion on whether the BSA is required in Aotearoa New Zealand, and were not outside of audience expectations of the programme.

[17]  In these circumstances, we do not consider Hosking’s comments as part of the two segments were likely to cause widespread disproportionate offence or undermine widely shared community standards. Accordingly, we find no breach under the offensive and disturbing content standard.

Fairness

[18]  The complainant is concerned the broadcast was unfair to Dr Sharma and the BSA. A consideration of what is fair depends on the nature of the programme and the context, as well as the nature of the individual or organisation referred to.¹⁴

[19]  It is well established the threshold for finding unfairness is higher for a public figure, politician or government entity used to being the subject of robust scrutiny.¹⁵ It is also commonplace for public figures and agencies to be criticised without it giving rise to an expectation of participation in every broadcast.¹⁶

[20]  In this case, we do not consider Dr Sharma or the BSA were treated unfairly:

• Dr Sharma is a high profile politician who can reasonably expect to be subject to public scrutiny. Given the context of the comments at issue, where Hosking was giving his predictions for the upcoming Hamilton West by-election as part of commentary on his talk radio show, there was no requirement to allow Dr Sharma an opportunity to comment.
• The same reasoning applies in respect of the BSA. The BSA is a public‑facing entity which can also reasonably expect to be subject to public scrutiny. Hosking’s comments were made as part of his talk radio show in relation to the BSA’s recently released annual report, and did not give rise to an expectation that it be able to respond.

[21]  In these circumstances, we do not uphold the complaint under the fairness standard.

Remaining standards

[22]  The complainant also identified the discrimination and denigration, balance, accuracy and privacy standards as having been breached by the two segments. We find no breach of these standards for the following reasons:

• Discrimination and Denigration:¹⁷ This standard protects against broadcasts which encourage the discrimination against, or denigration of, 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. The standard does not apply to individuals (such as Dr Sharma) or organisations (such as the BSA).
• Balance:¹⁸ The balance standard requires broadcasters to present significant viewpoints when controversial issues of public importance are discussed during news or current affairs programmes. The topics discussed did not amount to controversial issues of public importance, and in any event, it was clear the issues were being presented from Hosking’s particular perspective, and listeners would not have expected to hear alternative perspectives.¹⁹
• Accuracy:²⁰ This standard states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. The complaint has not alleged any material points of fact referred to in the broadcast were inaccurate. Further, the requirement for factual accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.²¹ We consider Hosking’s comments in both segments were clearly distinguishable as his own analysis and opinion. 
• Privacy:²² The privacy standard states broadcasters should maintain standards consistent with the privacy of the individual. The complainant has alleged Hosking breached Dr Sharma’s privacy. As Hosking did not disclose any private information about Dr Sharma, we find no breach of the privacy standard.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
16 May 2023    

Appendix

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

1  YS’s formal complaint to NZME – 13 December 2022

2  YS’s re-submitting formal complaint to NZME – 20 January 2023

3  NZME’s response the complaint – 27 February 2023

4  YS’s referral to the Authority – 21 February 2023

5  YS providing further information on referral – 1 March 2023

6  NZME’s further comments re: complaint process – 20 March 2023

7  NZME’s further comments re: BSA segment – 6 April 2023

8  YS’s further comments re complaints process – 17 April 2023

9  NZME confirming no further comments – 2 May 2023

¹ Standard 3, Code of Broadcasting Standards in New Zealand
² Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
³ See Carapiet and Radio New Zealand Ltd, Decision No. 2022-081 at [23]
⁴ Standard 1, Code of Broadcasting Standards in New Zealand
⁵ Commentary, Standard 1, Code of Broadcasting Standards in New Zealand at page 8
⁶ Standard 8, Code of Broadcasting Standards in New Zealand
⁷ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
⁸ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁹ Guideline 1.1
¹⁰ Newstalk ZB ‘Mike Hosking Breakfast’ <www.newstalkzb.co.nz; see also Clark & Sallee and Apna Television Ltd, Decision No. 2021-081 at [15]
¹¹ Radio Bureau ‘Newstalk ZB’ <www.trb.co.nz>
¹² Woolrych & Glennie and NZME Radio Ltd, Decision No. 2019-100 at [18]
¹³ As above
¹⁴ Guideline 8.1
¹⁵ As above
¹⁶ Davis and Radio New Zealand Ltd, Decision No. 2019-061 at [31]–[32]
¹⁷ Standard 4, Code of Broadcasting Standards in New Zealand
¹⁸ Standard 5, Code of Broadcasting Standards in New Zealand
¹⁹ Guideline 5.4
²⁰ Standard 6, Code of Broadcasting Standards in New Zealand
²¹ Guideline 6.1
²² Standard 7, Code of Broadcasting Standards in New Zealand