BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

Oakley and Radio New Zealand Ltd - 1995-012

Members
  • I W Gallaway (Chair)
  • W J Fraser
  • L M Loates
  • J R Morris
Dated
Complainant
  • James Oakley
Number
1995-012
Programme
Newstalk ZB
Broadcaster
Radio New Zealand Ltd
Channel/Station
Newstalk ZB


Summary

The subject of truancy was one of the topics aired on Newstalk ZB on 25 October

1994.

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

apology.

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

complaint.


Decision

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

call.

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

response.

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

any programme.


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

broadcaster.


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

 

Iain Gallaway
Chairperson
9 March 1995


Appendix

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

apology.

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

necessary.

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

comments.

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

1995

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

outstanding feat.

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

deranged.

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

the callers.

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

procedures.

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.