Oakley and Radio New Zealand Ltd - 1995-012
- I W Gallaway (Chair)
- W J Fraser
- L M Loates
- J R Morris
- James Oakley
BroadcasterRadio New Zealand Ltd
The subject of truancy was one of the topics aired on Newstalk ZB on 25 October
Mr Oakley, who made a call about 10.40am, complained to the Station Manager that
the host of the programme did not show balance and fairness when dealing with him or
respect his contribution on the subject. He accused the host of making derogatory and
slanderous remarks about him before terminating the call and demanded a public
In its response, Radio New Zealand upheld one aspect of the complaint: it was a
breach of good taste and unfair when the host questioned the caller's mental capacity.
It did not consider a public apology was an appropriate remedy. It did not uphold the
other aspects of the complaint, arguing that the talkback medium was a robust open
forum which allowed the interchange of different views. Dissatisfied with that
decision, Mr Oakley referred the complaint to the Broadcasting Standards Authority
under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons given below, the Authority declined to uphold any aspect of the
The members of the Authority have listened to a tape of the broadcast and have read
the correspondence (summarised in the Appendix). As is its practice, the Authority
determined the complaint without a formal hearing.
Truancy was the subject of the talkback programme on Newstalk ZB on 25 October
1994. Mr Oakley was one of the callers who made a contribution to the discussion
and complained that the talkback host would not let him explain his point of view and
kept interrupting him when he tried to speak. In addition, he claimed that the host
made slanderous and derogatory remarks about him before abruptly terminating the
The complaint was first dealt with informally by the Station Manager, who apologised
for the host's remark and advised that he had spoken to the talkback host about the
issue. He explained that talkback hosts were encouraged to offer their own views on
all issues and that in the fast-moving format of talkback, it was imperative that calls
were dealt with quickly.
Welcoming the apology from the Station Manager, Mr Oakley responded that in his
view it was only proper that the apology be given by the host himself and be
broadcast during the morning talkback programme. When he received no response to
that request, Mr Oakley referred the complaint to the Authority. As is its practice,
the Authority referred the correspondence to RNZ which advised that the response
had been dealt with at an informal level only. It then proceeded to make a formal
RNZ began by making the observation that the caller was identified by first name
only. It agreed with the Station Manager that time constraints in the talkback format
imposed a need to keep things moving and to stay on the subject and noted that the
caller, while relating "education" to "health" at the beginning of his call, immediately
moved into a topic which had no apparent relevance to truancy, the subject of the
programme. It added that a talkback host was expected to hold and state opinions and
to debate with callers and that:
Callers to a talkback session must expect to have their opinions challenged,
their arguments opposed and any statements they make concerning alleged fact
questioned in a robust and essentially contentious format.
RNZ noted that the host allowed considerable latitude for the caller to come to the
point before refusing to allow the discussion to digress and terminating the call.
It reported that it considered the complaint under standards R2 and R5 of the Radio
Code of Broadcasting Practice and s.4(1)(d) of the Broadcasting Act 1989. The
standards require broadcasters:
R2 To take into consideration currently accepted norms of decency and
good taste in language and behaviour, bearing in mind the context in
which any language or behaviour occurs.
R5 To deal justly and fairly with any person taking part or referred to in
Section 4(1)(d) of the Broadcasting Act 1989 reads:
4.(1) Every broadcaster is responsible for maintaining in its
programmes and their presentation, standards which are
consistent with -
(d) The principle that when controversial issues of public
importance are discussed, reasonable efforts are made,
or reasonable opportunities are given, to present
significant points of view either in the same programme
or in other programmes within the period of current interest.
RNZ advised Mr Oakley that it upheld the aspect of his complaint that the insulting
remark made by the host which questioned his mental capacity was a breach of
standards R2 and R5. It noted that an apology had already been made and that the
programme's host had been "counselled appropriately". It maintained that an apology
on air was not appropriate since, because of the passage of time, it would be necessary
to explain the background and circumstances of the incident which, in its view, would
disadvantage the complainant.
The Authority considered that RNZ had acted properly in upholding the complaint
that there was a breach of standards R2 and R5 when the host questioned Mr
Oakley's mental capacity, and in giving a written apology to Mr Oakley. It did not
believe that further action was necessary for the reasons outlined by RNZ and
considered that an on-air apology could well exacerbate the offence caused to Mr
Oakley. In reaching its conclusion, the Authority took into account the robust nature
of the talkback genre and the host's obligation to ensure contributions were relevant
and concise. The Authority declined to uphold the complaint that the action taken
was not sufficient.
Reporting on the balance requirement under s.4(1)(d), RNZ believed that balance was
achieved by the fact that it was an open-line programme providing public access and
that the content of the entire programme overall was balanced. It declined to uphold
this aspect of the complaint.
The Authority accepted that balance in the talkback format was generally achieved
first by the fact that the views of other callers were broadcast and, secondly, because
the host had an editorial function which required him or her to challenge and question
the views and opinions of all callers and had the right to terminate calls which were off
the point. The Authority considered that in this instance the host had exercised his
editorial right in terminating the call and did not view his interruptions as constituting
a lack of balance. Accordingly it declined to uphold this aspect of the complaint.
Turning to the complaint that the broadcast breached standard R2 because the call had
been abruptly terminated and the host had interrupted Mr Oakley as he tried to make
a contribution to the discussion, RNZ repeated that in the context of a robust and
controversial talkback interchange, the host's exercise of his editorial functions was
legitimate. It contended that the caller's point was unclear and he appeared to digress
from the subject of the broadcast. Consequently RNZ declined to uphold the
complaint that the good taste standard was breached.
The Authority accepted that while the talkback medium allowed for free interchange
of views, where callers digressed into topics that were irrelevant, the host was entitled
to assume an adversarial role and challenge those views. Although it noted that on this
occasion the host appeared to be somewhat abrupt, it did not believe that constituted
a breach of the standard and declined to uphold this aspect of the complaint.
Finally, RNZ considered the complaint that standard R5 was breached because the
caller was not dealt with fairly. Having upheld the aspect that it was unfair and a
breach of good taste to question his mental capacity, RNZ then considered the
complaint that it was unfair for the caller to be interrupted and have his call terminated
abruptly. In declining to uphold this aspect of the complaint, RNZ noted first that
the caller was identified only by his first name and secondly, that callers to talkback
would realise that they would be talking on air and that the host would not always
agree with their comments. It repeated that the host had a responsibility to keep
callers to the subject, to challenge unsubstantiated remarks and to act as devil's
advocate to ensure all sides of an argument were brought out.
The Authority did not believe Mr Oakley was treated unfairly by the host's
interruptions or by having the call terminated abruptly and for the reasons given by
RNZ declined to uphold this aspect of the complaint.
For the reasons set forth above the Authority declines to uphold the complaint
that Radio New Zealand Ltd, during the talkback session on Newstalk ZB on 25
October 1994, breached s.4(1)(d) of the Broadcasting Act 1989 or standards R2 or
R5 of the Radio Code of Broadcasting Practice beyond the matter upheld by the
In addition, with regard to the aspect of the complaint upheld by Radio New
Zealand Ltd under standards R2 and R5, the Authority decided that the action
taken was sufficient.
Signed for and on behalf of the Authority
9 March 1995
Mr Oakley's Formal Complaint to Radio New Zealand Ltd - 27 October 1994
The subject of the morning talkback programme on Newstalk ZB on 25 October was
truancy. Mr James Oakley of Wellington complained to the Station Manager that
when he tried to make a contribution, the talkback host (Mr du Fresne) would not let
him explain why he believed there was truancy in schools and kept interrupting and
would not respect his view.
Mr Oakley wrote that he believed the host did not show balance or fairness in dealing
with him and did not respect his contribution on the subject. He added that the host
made various remarks about him which he claimed were slanderous and derogatory
before hanging up on him.
Stating that he strongly objected to the accusations, Mr Oakley demanded a public
Further Correspondence - 7 and 10 November and 5 December 1994
Responding for Newstalk ZB, in a letter dated 7 November 1994, Mr Dave Allen, the
Station Manager, explained that because it received a lot of calls with only limited
time, the style of the talkback programme was very pacey and it was necessary to
move calls along quickly.
He apologised for the comment made by Mr du Fresne before the end of the call and
noted that he had spoken to him personally about the matter.
The letter concluded by noting that Mr Oakley was a regular contributor to the
programme and encouraged him to continue to participate.
On 10 November Mr Oakley wrote to Newstalk ZB that while he appreciated that
some talkback hosts had a tough job dealing with some callers, at the same time he
expected they respect the views and opinions of the callers and that he did not expect
to be insulted or ridiculed.
Mr Oakley added that he welcomed the apology from Mr du Fresne but felt that it
was only proper that he should personally apologise or retract the statements on
radio. He asked to be informed when this would take place and suggested an
appropriate time would be the time slot when the original statements were made.
In a letter dated 5 December 1994 to the Authority, Mr Oakley asked it to investigate
the complaint. He repeated that he was complaining about an incident when he was
defamed on air. He reported that he had had correspondence with the station manager
who had admitted the defamation but noted that so far there had not been a
satisfactory outcome from his point of view since he believed an on-air apology was
RNZ's Response to the Formal Complaint - 15 December 1994
The complaint was referred to RNZ by the Authority. It was explained to the
Authority by RNZ that the initial response from the Station Manager was an informal
response only and added that the complaint should have been referred to its
complaints department by the Station for investigation.
In its response to Mr Oakley and in the absence of standards named, RNZ reported
that it assessed the complaint under standards R2 and R5 of the Radio Code of
Broadcasting Practice. It noted first that defamation was not a statutory ground for
complaint but was a matter the remedy for which lay in court action. It also noted
that the caller was identified only by his first name.
RNZ advised that it agreed with the Station Manager that time constraints in talkback
radio necessitated that calls were kept brief and relevant to the topic. It added that
callers to talkback programmes should expect their views and opinions to be
challenged and questioned. It regarded the requirement of balance was satisfied by the
fact that the talkback format provides an opportunity for opposing views to be aired.
Pointing to the comments made by the complainant, RNZ observed that although the
subject was truancy, he turned the subject to the economic conditions of the 1930s
and the host's response was to challenge the relevance of the remarks and to refuse to
allow the discussion to continue further.
Turning to the alleged breaches, RNZ repeated that it considered balance (required
under s.4(1)(d) of the Broadcasting Act 1989) was achieved because the programme
was an open-line programme and many different views were aired.
With respect to standard R5 (dealing fairly), RNZ noted that the complainant was
only identified by first name and further that callers to talkback know that they will be
speaking on air and that the host may not be in agreement with them. It added that the
host's job was to keep callers on the subject, to challenge inaccuracies or unfair
accusations and to act as devil's advocate. Further, it argued that there was no
inherent right for callers to be allowed air time and it was the host's right to exercise
editorial control. It concluded that the caller was not treated unfairly.
Turning to standard R2 (good taste and decency) RNZ decided that the host's
termination of the call was not unacceptable behaviour considering the relevance of his
Finally, RNZ considered the final comment of the host when he said "...Ah Jimmy,
you're a deranged man - go away..." It assessed this comment against standards R2
and R5 and concluded that it was in breach of those standards, although it noted that
the comment was made in a jocular manner.
RNZ noted that an apology had been made on the host's behalf and that the Station
Manager had counselled the host. It expressed its view that an on-air apology was not
desirable for a number of reasons. First, the complainant was identified only by his
first name, secondly an apology now would necessitate an explanation of the
background and revisiting the circumstances, which would revive the matter to the
possible disadvantage of the complainant. It added that it seriously doubted that
listeners would have been inclined to take the host's comments literally, especially in
view of the tone in which they were spoken. It also wrote:
Those comparatively few listeners who may have recognised the
complainant's voice on-air can be advised of the Company's decision as appropriate.
RNZ recommended that the complaint be partially upheld in that the use of the word
"deranged" was a breach of standards R2 and R5. It did not agree that the broadcast of
an on-air apology was desirable.
Mr Oakley's Referral to the Broadcasting Standards Authority - 26 January
Dissatisfied with RNZ's response, Mr Oakley referred the complaint to the
Authority under s.8(1)(a) of the Broadcasting Act 1989.
He explained that he did not accept the reasoning that an on-air apology was not
appropriate because of the time which had elapsed. He pointed out that the delay was
not of his making and believed it was unfair for RNZ to absolve itself of responsibility
because time had passed, adding:
...then it becomes a simple matter for tv and radio stations to completely
circumvent natural justice by slowing the process of considering a complaint.
He enclosed a letter in similar vein to RNZ expressing his dissatisfaction with the
outcome of its investigation. He repeated that in his view an on-air apology was an
appropriate remedy. He added:
I also fail to completely understand what RNZ means by stating that "those
comparatively few listeners who may have recognised the complainant's voice
on air can be advised of the Company's decision as appropriate."
How RNZ can determine exactly who may have heard the broadcast; who may
have recognised me; who may have been offended as I was, is a complete
mystery to me. I know of no current technology which could achieve such an
Mr Oakley concluded that anything less than an apology would do RNZ a dishonour.
RNZ's Response to the Authority - 14 February 1995
Noting that the complaint had been effectively upheld, RNZ pointed out that the
breach had been drawn to the attention of all commercial staff concerned with
talkback. It also noted that both the station and RNZ had apologised to Mr Oakley
for both the incident and the initial confusion over the complaint's status and process.
RNZ drew to the Authority's attention the fact that during the on-air conversation,
Mr Oakley was referred to only by first name and the area from which he was calling
was not identified.
It repeated its view that an on-air apology, unless closely related in time, was
meaningless and for that reason did not agree that the broadcast of an apology would
be of value. It also noted that an explanation would be required which it argued would
risk exacerbating the original offence.
RNZ did not agree that the broadcast would affect a caller's reputation or business
dealings, especially since there was no identification, It added that no real evidence
had been offered that such harm had occurred.
RNZ contended that there was no possibility that people not acquainted with Mr
Oakley's distinctive accent would know his identity. Further, it maintained that those
who did recognise his voice would not have been seriously led to believe that he was
Finally, RNZ observed:
...the talk-back medium is robust and participants must expect a talk-back host
to express fairly firm opinions in fairly firm language, often disagreeing with
It did not agree that the context and tone in which the remark was spoken was
anything other than a "hyperbolic comment" which related to the specific occasion. It
denied that there was any intention to doubt the caller's mental state.
Mr Oakley's Final Comment -23 February 1995
Mr Oakley reiterated that RNZ could not use as an excuse not to broadcast an
apology the fact of the length of time which had elapsed since the broadcast. He
maintained that the time elapsed was the fault of the station and RNZ and their
Noting that while only his first name was broadcast, Mr Oakley argued that his voice
and accent were quite distinctive and would be instantly recognised by many listeners.
Agreeing that the talkback medium was robust, Mr Oakley noted that the host had
considerable power in controlling the length of the contributions and in being able to
make comments to which the caller could not respond.
Mr Oakley strongly urged that an apology be broadcast. In his view this would not
only resolve the matter but also make it clear to talkback hosts that they had a
responsibility in dealing appropriately with callers.
In concluding, Mr Oakley observed that talkback gave a welcome opportunity for
people to air their views. He added that it must therefore treat its listeners with a
degree of respect.