BSA Decision Number 1996-076

BEFORE THE BROADCASTING STANDARDS AUTHORITY

Decision No: 1996-076

Dated the 18th day of July 1996

IN THE MATTER of the Broadcasting Act 1989

AND

IN THE MATTER of a complaint by

CALUM SAWYERS

of Wellington

Broadcaster

RADIO PACIFIC LIMITED

J M Potter Chairperson

L M Loates

R McLeod

A Martin

DECISION

Summary

Abortion was a topic touched on during the talkback programme Banksie on Sunday,

broadcast on Radio Pacific between 10:00am - 2:00pm on Sunday 14 April 1996. The

host (Hon John Banks MP) described doctors who perform abortions as baby

murderers, and claimed that the aborted foetuses were put into the hospital waste

disposal systems or in "Kleensaks".

Mr Sawyers complained to Radio Pacific Ltd that the "highly emotive" remarks were

inaccurate, unbalanced, and unfair to the doctors who carried out abortions.

Explaining that the host had been expressing his own strong opinion, that other hosts

had different opinions, and that callers were able to present a diversity of views on the

subject, Radio Pacific denied that the standards had been contravened.

Dissatisfied with Radio Pacific's decision, Mr Sawyers referred his complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the aspect of the complaint that the host's

comments denigrated doctors who perform abortions, and orders an apology.

Decision

The members of the Authority have listened to part of the programme complained about

and have read the correspondence (summarised in the Appendix). As is its practice, the

Authority determines the complaint without a formal hearing.

Abortion was a subsidiary topic discussed on the talkback programme, Banksie on

Sunday, broadcast by Radio Pacific between 10.00am - 2.00pm on Sunday 14 April.

Talking about abortions, which he described as "state funded genocide," the host made

the following remark:

I'm compiling a list of all the doctors in the hospitals up and down the country

that commit these murders every morning of the week, and put these bodies either

into the waste disposal unit in the hospitals or into a kleensak, and I'm going to

release their names publicly so that you'll be able to walk down the street, and say

that's a killer, that one lives in that house, he's another murderer, she kills babies

before they're born, and I'll be able to identify the abortionists - dash - state

funded killers, because I'm getting the list together and IÔm going to release it in

Parliament so it can be published in every newspaper in the country, and I know

that these abortionists make huge, huge, money from the government by doing

this. They are making huge money. There are doctors earning hundreds and

thousands of dollars a year killing babies for a living. Baby killing doctors.

Pointing out that these doctors were operating within the law, Mr Sawyers complained

to Radio Pacific that it was inaccurate to describe them as murderers. Moreover, the

comments about the disposal of the foetus were inaccurate as they were disposed of by

funeral directors and/or crematoriums. Mr Sawyers maintained that the comments

breached standards R1, R6, R9 and R14 of the Radio Code of Broadcasting Practice

and the absence of a correction was a contravention of standard R13.

Claiming also that the comments amounted to electioneering in a breach of the Electoral

Act, Mr Sawyers believed that an apology and a correction from the host were

appropriate.

Radio Pacific assessed the complaint under the nominated standards. They require

broadcasters:

R1 To be truthful and accurate on points of fact in news and current affairs

programme.

R6 To respect the principles of law which sustain our society.

R9 To show balance, impartiality and fairness in dealing with political

matters, current affairs and all questions of a controversial nature, making

reasonable efforts to present significant points of view either in the same

programme or in other programmes within the period of current interest.

R13 To act responsibly and speedily in the event of a complaint and when an

accusation of unfairness is found to be correct, to provide appropriate

redress as early as possible after the original broadcast.

R14 To avoid portraying people in a manner that encourages denigration of or

discrimination against any section of the community on account of gender,

race, age, disability, occupation, status, sexual orientation or as the

consequence of legitimate expression of religious, cultural or political

beliefs. This requirement is not intended to prevent the broadcast of

material which is

a) factual, or

b) the expression of serious opinion, or

c) in the legitimate use of humour or satire.

Pointing out that abortion was a highly emotional topic, Radio Pacific explained that it

did not hold an editorial view on the issue. Different hosts had a known variety of

views and each host, in the interests of fairness and balance, encouraged the expression

of differing views from callers.

Radio Pacific then declined to uphold the complaint under each specific standard. It

maintained that as the comments were an expression of opinion, standard R1 had not

been breached. Standard R6 was not contravened as it did not prohibit criticism of the

law. The opportunity for callers to present a variety of views ensured that standard R9

was complied with, and standard R14 was not applicable as the host had referred only

to doctors who perform abortions - not to all doctors. As it had responded seriously to

the complaint, Radio Pacific argued that standard R13 was not transgressed.

When he referred his complaint to the Authority, Mr Sawyers emphasised that he was

not complaining about the views on abortion which were expressed. He said that he

was complaining about the description of foetuses as "babies", about the comments

relating to the method of disposal, and the denigratory references to doctors. The

remarks, Mr Sawyers maintained, were presented as matters of fact, and not as matters

of opinion.

Mr Sawyers advised that he had written to hospitals to obtain confirmation of the

newspaper reports that foetuses were disposed of through funeral directors and

crematoriums.

In his final comment, Mr Sawyer attached replies from three hospital authorities. In

summary, two said the women were offered the foetus/tissue to dispose of as they

wished. If the offer was declined, the foetus/tissue was incinerated with other

tissue/body parts.

The Authority considers each standard in its approach to the complaint. Standard R1

requires factual accuracy in news and current affairs programme. Whether any

particular talkback programme is "news" or "current affairs" requires an assessment of

the specific programme. The Authority, having listened to part of the programme

broadcast on 14 April, concludes that it could not be described as a "news or current

affairs" programme. Accordingly, standard R1 is not applicable.

As for standard R6, the Authority agrees with Radio Pacific that the remarks on this

occasion were principally criticism of a specific law, and did not show disrespect for the

principles of law. Thus, standard R6 was not breached. In view of the opportunities

for callers to present a contrary view of the issue of abortion - as at least one caller did -

the Authority reaches the same conclusion in regard to standard R9. As Radio Pacific

responded speedily and responsibility to the complaint, the Authority is of the view that

standard R13 was not transgressed.

The Authority believes that standard R14 is the principal issue raised by the

complainant. Under this standard, a broadcaster is not allowed to portray a group

(which falls within a category included in the standard) in a manner that encourages

denigration or discrimination against it. On this occasion, doctors who carry out

abortions within the law was the group focussed on. This is an occupational group

which is recognised by the standards.

The Authority is in no doubt that the host's comments, recorded above, encouraged

both denigration of and discrimination against this group and thus breached the

substance of the standard.

Standard R14 states that the rule is not intended to prevent the broadcast of material

which is "the expression of a serious opinion". Radio Pacific argued that the host's

comments were his opinion. The Authority does not agree.

The host, a cabinet minister in the present government, presented the statements

included in the broadcast as fact. While it is possible nevertheless to interpret a number

of the remarks on the abortion issue as opinion, some of them were presented

unquestioningly as fact, and were meant to be understood as such. In these

circumstances, the Authority concludes that the exception in standard R14 (ii) does not

apply.

For the reasons above, the Authority upholds the complaint that some of

the host's comments broadcast by Radio Pacific Ltd, during the talkback

programme Banksie on Sunday on 14 April 1996, breached standard R14

of the Radio Code of Broadcasting Practice.

It declines to uphold any other aspect of the complaint.

Having upheld a complaint, the Authority may impose an order under s.13(1) of the

Broadcasting Act 1989. In view of both the degree and extent of abuse contained in the

broadcast and directed at doctors who perform abortions, the Authority considers that

the broadcast of an apology is appropriate. Although the order acknowledges the appeal

provisions in the Act by referring to one month before the apology must be broadcast,

in view of the forthcoming general election, the Authority believes that it would be

appropriate to broadcast the following order as soon as possible.

Order

The Authority orders Radio Pacific Ltd to broadcast within one month of

the date of this decision a statement, approved by the Authority, which

apologises for the remarks broadcast on Banksie on Sunday on 14 April

1996, which breached standard R14 of the Radio Code of Broadcasting

Practice. The statement will be broadcast between 10.00am and 2.00pm

on a Sunday during the programme Banksie on Sunday.

Signed for and on behalf of the Authority

Judith Potter

Chairperson

18 July 1996

Appendix

Mr Sawyers' Formal Complaint to Radio Pacific Ltd - 24 April 1996

Calum Sawyers of Wellington complained to Radio Pacific Ltd about comments made

by the host (Hon John Banks MP) during the talkback programme, Banksie on Sunday,

broadcast between 10:00am - 2:00pm on 14 April 1996.

The host, Mr Sawyers wrote, had accused doctors who performed abortions of

murdering "babies" and disposing of the foetuses by putting them into the hospital

waste disposal systems or using plastic rubbish bags.

Explaining that the doctors who performed abortions in hospital were operating under

the law, Mr Sawyers said that the claims about murderers and the disposal of foetuses

were incorrect. He argued that the broadcast breached standards R1, R6, R9, R14 and

R13 of the Radio Code of Broadcasting Practice.

Further, because he considered the host's comments amounted to political advertising,

Mr Sawyers said he had also complained to the Electoral Commission.

Mr Sawyers considered that a public apology from the host about the false statements

would be appropriate.

Radio Pacific's Response to the Formal Complaint - 1 May 1996

Brent Impey, Radio Pacific's Counsel, advised Mr Sawyers that as the complaint did

not specify an exact comment, he had treated the complaint as one which focussed on

the four hour programme as a whole. Mr Impey began:

This issue is a highly emotional one where both pro and anti abortion views are

expressed in strong terms. It is not surprising that some talk hosts have strong

views on the subject; in the case of Radio Pacific there are those such as John

Banks who are strongly anti abortion, while others have pro choice or liberal

views. Examples include Jenny Anderson, Felix Donnelly and Ewing Stevens.

He added that Radio Pacific did not have an editorial view on the issue, and, to obtain

balanced and fairness, engaged hosts with a variety of opinions and encouraged callers

to express a variety of views on every subject. He then dealt with the specific standards

raised in the complaint.

R1 The host had expressed a strong opinion. It was not a question of fact.

R6 It was justifiable to criticise the law as had occurred on this occasion.

R9 Balance and fairness were achieved as explained above, and, Mr Impey wrote,

abortion had been a subject which attracted strong opinions since Radio Pacific

began broadcasting in 1979. He argued:

It is the station's policy to allow the opinions to be aired whether they be by

hosts or callers. Radio Pacific claims that it has achieved balance when

taking into account all its programmes.

R13 Radio Pacific had responded responsibly to the complaint.

Denying also that the broadcast was in breach of the Electoral Act, Mr Impey on Radio

Pacific's behalf declined to uphold the complaint.

Mr Sawyers' Complaint to the Broadcasting Standards Authority - 3 May

1996

Dissatisfied with Mr Impey's reply, Mr Sawyers referred his complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

As he did not have a transcript of the show, he explained, he had attempted to

paraphrase the host's comments as accurately as possible. He was not complaining

about the entire show, he added, but the specific comments when the host accused

doctors of murdering foetuses and disposing of them through the waste disposal

system. This comment, he repeated, was false as the foetuses were disposed of by

funeral directors and/or crematoriums on behalf of hospitals. Mr Sawyers observed:

I agree that abortion is a highly emotive topic, but that was not what I was

complaining about. Whether other talk show hosts have opposing views on

abortion to Banks is therefore irrelevant. The disposal of foetuses was what the

complaint was laid about, and not about Banks', or any other hosts', attitudes to

abortion. The complaint is not based on the rights or wrongs, immorality or

morality of abortion.

Insisting that the host spoke about the disposal of foetuses as a statement of fact, he

mentioned again that there had been a reference to the disposal of "babies". Mr

Sawyers argued:

Because Banks worded his statement as a matter of fact, and that he is wrong in

this case does indeed, in my belief, contravene section R1 of the programme

standards for Radio.

Moreover, Mr Sawyers wrote, he had written to hospitals to obtain confirmation of the

newspaper reports that foetuses were disposed of through funeral directors and

crematoriums.

Standard R6 was contravened as the host had not criticised the law but had accused

doctors of acting illegally and murdering babies. Standard R9 was breached as the

host's incorrect statement was not corrected during or following his session. Although

Radio Pacific had ignored the standard R14 aspect of the complaint, Mr Sawyers

considered that the host's comments had denigrated medical practitioners.

While acknowledging the prompt response from Radio Pacific, Mr Sawyers believed

that his complaint had not been treated seriously. Rather, he felt that he had received a

standard reply. He also said he was awaiting a reply from the Electoral Commission as

to the status of all MPs who hosted talkback programmes.

Radio Pacific's Response to the Authority - 11 June 1996

In his report on Radio Pacific's behalf, Mr Impey said that the delay had occurred as he

had been waiting for the confirmation from hospitals that Mr Sawyers had promised in

his letter of complaint. Nevertheless, although it had not yet arrived, he intended to

respond at this time to the referral.

Mr Impey said that his reply to Mr Sawyers had dealt with the substantive issues:

abortion was a contentious issue and the host's "pro life" views were well known. He

also argued that the complaint should deal with the whole broadcast as abortion, and the

role played by doctors, were referred to frequently and in strong terms.

As for the standards raised, Mr Impey maintained that the host was expressing an

opinion; that standard R14 was inapplicable as the host had been referring only to

doctors who performed abortions - not all doctors; and that he received a full reply to

the specific matters raised. Radio Pacific continued to decline to uphold the complaint.

Mr Sawyers' Final Comment - 21 June 1996

Mr Sawyers said that he had received only one reply from a Regional Health Authority

and he had followed up his request to the others with phone calls and faxes. The

information obtained suggested that the usual practice involved allowing the woman to

take the foetus home if she so wished or, if she declined, to sent it to a funeral director

to arrange a cremation, or for incineration within the hospital system.

Mr Sawyers wrote:

... I agree that abortion is a highly emotive and divisive issue, and is indeed a

conscience vote in Parliament. Comments like those made by Banks do not help

this, but inflame the situation, further increasing polarity on the issue. Being

known as pro-life is no reason for him to introduce misleading or untrue

information that would be accepted by the more extreme pro-life groups as the

"gospel truth".

Repeating that his complaint focussed on the host's comments that doctors who

performed abortions were "baby murderers" and aborted foetuses were treated as waste,

Mr Sawyers insisted that the comments were presented as fact - not opinion. The

comments had referred, in breach of standard R14, to doctors who carried out abortions

and the comments would encourage denigration and discrimination against them. Mr

Sawyers considered that a retraction and apology were appropriate.