BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Explaining that he was being prosecuted for failing to complete a form for the 1996

Census, the host (Lindsay Perigo) of a talkback session on Radio Pacific on 15

December 1996 said that the information for the Census had been demanded "at

gunpoint" by "Statistics Nazis". Three shouts of "Sieg Heil" were then broadcast.

On behalf of Statistics New Zealand, the Government Statistician (Len Cook)

complained to Radio Pacific Ltd that the comments breached the standards of good

taste and decency. Moreover, he alleged that they denigrated departmental employees

and failed to adhere to the principles of law which sustain society.

Pointing out that the host was well-known for his libertarian views, Radio Pacific said

the gunpoint reference involved a figure of speech. While the other comments might

be forthright and provocative, Radio Pacific maintained that they did not breach the

standards.

Dissatisfied with Radio Pacific's reply, the complainant referred the complaint to the

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

For the reasons below, the Authority declines to uphold the complaint.

Decision

The members of the Authority have listened to the comments complained about and

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

Authority determines the complaint without a formal hearing.

In a decision released concurrently with this one (No: 1997-051, dated April 1997), the

Authority determined a complaint from the Ministry of Education about comments

made by the host during a talkback programme broadcast by Radio Pacific on Sunday

8 December 1996. The same host featured on each of the programmes complained

about. Because of the similar nature of this complaint with the one determined in No:

1997-051, extracts from that decision are included below.

"Lindsay Perigo is the host of the talkback programme broadcast on Radio Pacific

between 10.00am–2.00pm each Sunday. The introduction, repeated on occasions

throughout the broadcast, describes the broadcast as:

The politically incorrect show hosted by that fearless outspoken champion of

liberty, Lindsay Perigo – one man's private war against the guardians.

The host's introductory comment in part states that the broadcast is "the only radio

programme in the world dedicated to telling the thought police to go screw

themselves".

The programme stresses libertarian philosophy and, in referring to opponents,

frequently draws analogies with Nazism and Stalinism. New Zealand, for example, is

described as a "semi-fascist state", and the Human Rights Commission as the "Human

Wrongs Commissariat".

During the broadcast on 15 December, the host announced that he was being

prosecuted by Statistics New Zealand – which he described initially as Statistics Nazis

– for failing to complete a Dwelling Form in the 1996 Census of Population and

Dwellings. He continued by stating that he:

... did neglect to fill it in, you low lifes, because the information you demand at

gun point is none of your bloody business.

He concluded with the comment "So this is for you, Statistics New Nazis", and

played a recording of three shouts of "Sieg Heil".

The Government Statistician (Len Cook) complained to Radio Pacific that it was

contrary to the standards of good taste to call New Zealanders Nazis. Moreover, he

wrote, to describe Departmental employees as "low lifes" denigrated them in

contravention of standard R14. He also maintained that the comments showed

disrespect for the law in breach of standard R6.

While Radio Pacific referred specifically to standards R6 and R14 in its reply to the

complainant, the Authority has also assessed the complaint under standard R2 in view

of the explicit reference to the standard of good taste and decency in the complainant's

letter of complaint. 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.

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

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, occupational status, sexual orientation or as a

consequence of legitimate expression of religious, cultural or political

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

material which is

i) factual, or

ii) the expression of serious opinion, or

iii) in the legitimate use of humour or satire.

In response to the complaint, Radio Pacific explained the nature of the programme and

the approach adopted by the host:

Radio Pacific's position is firmly in favour of Lindsay Perigo's right to express

his opinions. He has well known libertarian views and Radio Pacific encourages

him to present them on his weekly programme. His views are forthright, and

while at times extreme in the conventional sense are ones that he is entitled to

hold.

Radio Pacific's policy is to engage hosts with diverse views so that most

significant points of view are broadcast. For his part, Lindsay Perigo has strong

opinions on issues such as political correctness, quangos, petty bureaucracy,

government interference in individual rights and the role of the state.

Describing the reference to the demand "at gunpoint" as a figure of speech, Radio

Pacific added:

While accepting that references to "Statistics New Nazis" and "Sieg heil" may be

extreme they have been made from a strong libertarian perspective.

It is not the role of Lindsay Perigo in a current affairs programme to be balanced,

and indeed he has a right to be contentious and to provoke debate by adopting an

extreme position. It is the broadcaster's responsibility to ensure balance over all

its programmes and to ensure that the codes are not breached. For the reasons

contained in this paragraph your complaint concerning the use of these two

phrases is not upheld.

Further, on the basis that the reference to employees as "low lifes" was an expression

of a serious opinion, Radio Pacific said it fell within an exception allowed in standard

R14.

When he referred the complaint to the Authority, the Government Statistician

maintained that the broadcast breached standards R6 and R14. References to Nazism

and the use of "Sieg Heil", he wrote, were offensive and beyond the limits of the

community's tolerance.

Radio Pacific referred to Decision No: 140/95 (dated 14.12.95) in its report to the

Authority. On that occasion the Authority declined to uphold a complaint which in

part alleged that the good taste standard was contravened by the reference to the

agency NZ On Air as "Nazis On Air". The Government Statistician later questioned

the broadcaster's reliance on this decision on the basis that the broadcast on 15

December 1996 did not explicitly outline the perspective for which the comment was

made. Decision 1997-051 dealt with the issue in this way:

"Decision 140/95 included the following observations:

In its assessment of the complaint, the Authority focussed on the item's

opening comments which stated:

Good morning and welcome to "Freespeak", a programme which attacks

bureaucracy, political correctness, fascism from the right or the left and

anything else which endangers the freedom of New Zealand citizens.

From the start it was made clear that the remarks which followed were

comments made from a strong libertarian perspective and, indeed, could be fairly

extreme. Having explicitly outlined the perspective for comment, the Authority

accepted that the presenter's editorial observations on current affairs need not be

balanced. In addition, they could well be contentious and unfair and, possibly,

they might deliberately take an approach that would be regarded as an extreme

line in order to provoke debate.

Nevertheless, the broadcaster retained the obligation that the comments comply

with and observe the standards of good taste and decency, that they respect the

principles of law and, because they covered current affairs, that they be factually

accurate.

The Authority reached the following conclusions in that decision:

In view of the acknowledged bias, the Authority did not consider the item

unbalanced. It was of the opinion that the call for listeners not to pay the fee

was at the borderline of acceptability, but considered that in its context it could

be seen as the expression of an extreme opinion rather than a rallying cry for

widespread civil disobedience.

Because of the context, the Authority did not accept that most of the critical and

unpleasant comments about the organisation, its staff or the applicants for

funding were in breach of the good taste standard.

There was one comment, however, which the Authority unhesitatingly decided

was a clear breach of the standard. It regarded the analogy drawn to Auschwitz

as highly offensive, not only in itself but because it detracted from and

cheapened a major crime against humanity. It was a comment for which there

was no justification.

The Authority intends to apply similar considerations in its determination of the

current complaint.

It acknowledges that the introduction to the broadcast, which was repeated on a

number of occasions, made explicit the presenter's approach in his editorial comments.

The Authority accepts that criticism and abuse directed at an institution and/or policy

may include a scurrilous element which would be unacceptable if directed at an

individual. Moreover, the Authority acknowledges that the presenter makes frequent

use of hyperbole as a way of increasing the impact of his comments. This method

however, it observes, can sometimes have the effect of distorting the content of the

comment.

Further by way of general comment, the Authority records that it takes into account

when determining complaints such as the current one, that broadcasters should not use

their privileged position to denigrate or abuse people who are not in a position to

defend themselves. To do so, the Authority considers, is a form of bullying which can

be unjust and unfair. It is a situation in which the broadcasters may not only cheapen

themselves, but also one which may threaten their obligation to comply with the

standards of good taste and decency."

With these points in mind, the Authority arrives at the following conclusion on the

complaint that the comments broadcast on 15 December breached standards R6 and

R14. First, while the host's disdain for the legal requirement to complete the form is

obvious, he does not urge listeners to follow his example. There is undoubtedly an

element of personal disrespect for the law, but listeners are not openly encouraged to

follow the host's non-compliance.

Secondly, the Authority does not accept that standard R14 was breached in view of

the exemption for the expression of serious opinion. It could also be argued that the

comments were exempt on the basis that they were made "in the legitimate use of

humour or satire". The Authority accepts that the host, in view of the hyperbole

used, intends many of his remarks to contain a satirical edge. However, the satirical

humour exemption applies only when the use of such an approach is legitimate. The

Authority has interpreted that to mean that the satire or humour does not breach any

other standards. On this occasion it involves assessing whether the references to

Nazism and the shouts of "Sieg Heil" breached the good taste requirement in standard

R2.

The Authority has considered the matter carefully as it acknowledges the distaste felt

at such references and to the use of the Nazi rallying cry . However, the Authority is

of the view that in reaching its decision it is necessary to place a strong emphasis on

the context in which the matters complained about were broadcast, and does not

consider that the good taste requirement was breached. Accordingly, although it is a

matter which is relatively evenly balanced, the Authority concludes that on this

occasion the use of satire was legitimate as standard R2 was not contravened.

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

Signed for and on behalf of the Authority

Judith Potter
Chairperson
21 April 1997

Appendix

Statistics New Zealand's Complaint to Radio Pacific Ltd - 20 December 1996

The Government Statistician (Len Cook) complained to Radio Pacific Ltd about some

comments made by the talkback host (Lindsay Perigo) during the programme

broadcast between 10.00am - 12 noon on Sunday 15 December 1996.

The host, the complainant wrote, had said that he was being prosecuted for failing to

complete a part of the 1996 Census. The host added that he "did neglect to fill it in,

you low lifes, because the information you demand at gunpoint is none of your bloody

business". He ended with what the complainant described as a "tirade" by stating,

"So

this is for you, Statistics New Nazis", and played three shouts of "Sieg Heil".

The Government Statistician said that the reference to Nazis in that context breached

the standard requiring good taste and decency. It also encouraged the denigration of

the departmental employees, and was inconsistent with the requirement for

broadcasters to respect the law.

Alleging breaches of standards R14 and R6 of the Radio Code specifically, the

complaint concluded:

Mr Perigo is required to obey the law like everyone else. If he chooses not to do

so, then abusing on air those who have vainly sought to encourage him to obey it

before taking steps to prosecute him is quite unwarranted and unjustifiable, and

in my view is contrary to reasonable standards of broadcasting.

Radio Pacific's Response to the Formal Complaint - 30 January 1997

Radio Pacific began:

Radio Pacific's position is firmly in favour of Lindsay Perigo's right to express

his opinions. He has well known libertarian views and Radio Pacific encourages

him to present them on this weekly programme. His views are forthright, and

while at times extreme in the conventional sense are ones that he is entitled to

hold.

Radio Pacific's policy is to engage hosts with diverse views so that most

significant points of view are broadcast. For his part, Lindsay Perigo has strong

opinions on issues such as political correctness, quangos, petty bureaucracy,

government interference in individual rights and the role of the state.

Dealing with the specific matters raised, Radio Pacific said the reference to the demand

"at gunpoint" was used as a figure of speech. It accepted that the references to Nazis

and the use of "Sieg Heil" were extreme but were made from "a strong libertarian

perspective" and added:

It is not the role of Lindsay Perigo in a current affairs programme to be balanced,

and indeed he has a right to be contentious and to provoke debate by adopting an

extreme position. It is the broadcaster's responsibility to ensure balance over all

its programmes and to ensure that the codes are not breached. For the reasons

contained in this paragraph your complaint concerning the use of these two

phrases is not upheld.

As the reference to "low lifes" was an expression of serious opinion, Radio Pacific

maintained that standard R14 was not contravened. It concluded:

Radio Pacific accepts that some of the comments are highly critical of the

department and open to interpretation as extreme. However that is balanced by

the fact that Lindsay Perigo's programme is for four hours a week only and is

more than balanced by other programmes.

Statistics New Zealand's Referral to the Broadcasting Standards Authority - 12

February 1997

Dissatisfied with Radio Pacific's reply, the Government Statistician referred the

complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting

Act 1989.

Describing Radio Pacific's comments as self-serving and unbalanced, the complainant

maintained that departmental staff, whose experiences were typical of all New

Zealanders, found the references to Nazism and the use of "Sieg Heil" offensive.

Moreover, as the remarks were neither factual nor a serious opinion, standard R14 had

been breached.

Radio Pacific's Report to the Authority - 4 March 1997

In response to the referral, Radio Pacific wrote:

The complaint has been made in terms of Rule 6 and Rule 14. As to Rule 6,

Lindsay Perigo was making comment albeit strong and perhaps extreme

comment, on the law (statistics/census). He was giving his view on the law and

being critical of it. As to Rule 14 any denigration was directed at the policy of a

compulsory census not against any section of the community.

Radio Pacific pointed to Decision No: 140/95 where, it said, the complaint about the

use of the term "Nazis on air" had not been upheld. It cited other extracts from that

decision and concluded:

This is essentially a free speech issue and goes to the heart of engaging

controversial talkback hosts with extreme opinions.

Statistics New Zealand's Final Comment - 10 March 1997

The Government Statistician noted that the Authority did not uphold the complaint in

Decision No: 140/95 because the presenter explicitly outlined the strong libertarian

perspective from which the comment was made. As the presenter had not advanced

his perspective immediately before the comment complained about on this occasion, it

was argued that the justification did not apply.