Downes, Penning, Maltby, Massie & Tang and NZME Radio Ltd - 2020-123 (24 February 2021)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- Matthew Downes, Ruben Penning, John Maltby, Andrew Massie & Suet Tang
ProgrammeMike Hosking Breakfast
BroadcasterNew Zealand Media and Entertainment
Channel/StationNewstalk ZB # 2
[This summary does not form part of the decision.]
In a segment on the Mike Hosking Breakfast programme, the host interviewed the Prime Minister about the Government’s decision to extend the Level 3 lockdown restrictions on Auckland in August 2020. The Authority did not uphold the complaints. It recognised the value of robust political discourse in the media and the role of media in holding to account those in positions of power. Overall, it found no harm at a level justifying regulatory intervention. While some may have found Mr Hosking’s approach and comments distasteful, they did not go beyond what could be expected of an interview of this nature.
Not Upheld: Fairness, Good Taste and Decency, Balance, Accuracy, Discrimination and Denigration, Children’s Interests
 On 25 August 2020, on Newstalk ZB’s Mike Hosking Breakfast, Mr Hosking interviewed the Prime Minister, Rt Hon Jacinda Ardern, about the Level 3 lockdown in Auckland. The relevant excerpt of the interview follows:
Mr Hosking: And I think for most, the Level 3 extension came as somewhat of a shock yesterday, and as for the rest of the country, being stuck with [Level] two because of Auckland can't have made it a good Monday. The Prime Minister is with us... Is it fair to suggest we shouldn't actually be here and this is all on you?
Ms Ardern: No, I think it's all on COVID Mike, and when I continue to look around the world, you know, and we should because obviously every other country is having similar experiences, either battling COVID, trying to keep it out or dealing with resurgence. So we are not alone in that. And so, no, I'm not sure it is fair to make that statement.
Mr Hosking: The border leaked and you're in charge of the border.
Ms Ardern: Well we are still working extraordinarily hard to determine what it is that occurred with this particular cluster, comprehensive testing across all border staff, those at front line. And of course, we've reached into wider testing, even at the peripheries of our ports. Still yet to determine what exactly happened here. We will keep hunting though, because I do want to learn what happened in this situation. However, having said that, we'd always prepared for it as well, because there are very few countries, in fact I can't name one, that’s had an outbreak like ours, managed to get down to free of community transmission and hasn't seen some form of resurgence.
Mr Hosking: So you don't think the border leaked?
Ms Ardern: Well, I haven't been able to determine where yet Mike and I've wanted to know that because, of course, that's how we can make those constant improvements and we have, all the way through this period, constantly sought to improve and change our response based on the evidence, because the world has been moving…
Mr Hosking: You improved your performance, because you got caught with your pants down, because you weren't testing the way you said you were.
 The interview continued with Mr Hosking questioning the Prime Minister on several issues related to COVID-19. At the end of the segment, Mr Hosking proceeded to ask the Prime Minister quick questions about some unrelated matters as follows:
Mr Hosking: Would you worry about losing to the Greymouth gas case?
Ms Ardern: I can’t comment on that.
Mr Hosking: Why not?
Ms Ardern: Because I just simply haven’t been briefed on the Greymouth gas case in order to make any assumptions.
Mr Hosking: You’re being sued.
Ms Ardern: I wouldn’t want to say anything prematurely in a case we’re engaged with either Mike
Mr Hosking: Do you look to take over in some way, shape or form either the Tauranga City Council or the Invercargill City Council?
Ms Ardern: Why on earth are you making such suggestions?
Mr Hosking: Because the Department has written to both of the Councils looking for information that they may involve the role of the Minister in them.
Ms Ardern: And you’re suddenly making the assumption that we’re going to take over?
So, Mike if you’ve got a list of things that you want to run through this morning, then that is fine… it’s a ridiculous suggestion that we would take over a Council or a port or somehow this morning that you would like me to get into the detail of a gas case.
Good taste and decency
[3 Four complainants raised the good taste and decency standard:
- Matthew Downes complained Mr Hosking’s interview style is rude, divisive, destructive and ‘not what we need in our community or on our airwaves in such a time where many people are feeling stressed and uncertain.’ He observed that Mr Hosking’s ‘toxic approach influences people’s thinking and only in a negative way’.
- Ruben Penning argued it was vulgar, misogynistic and disrespectful to say to the PM that she had been ‘caught with her pants down’.
- John Maltby complained ‘Mike Hosking shows a total lack of respect toward our PM. His comments go beyond good taste and decency, not to mention, common politeness.’
- Suet Tang complained Mr Hosking was a bully, very unprofessional, disrespectful, rude and unethical, noting her shock at the ‘caught with her pants down’ comment.
 Mr Downes, Mr Maltby, Mr Massie and Ms Tang raised the balance standard. Key arguments presented included:
- Mr Massie alleged that the interview was ‘unreasonably aggressive’ and ‘displays extremely overbalanced bias toward right-wing politics’.
- Mr Downes argued the questioning was not done in a balanced manner (with Mr Hosking seldom responding to an answer, just attacking with additional unrelated questions), questions were more subjective ‘statements’ and an expression of Mike Hosking’s political alignment, some of the questions asked were on subjects not in the public eye, and made references to obscure details that most of the public were not exposed to. He said, ‘there must be some obligation on Newstalk ZB to supply evidence to back up his content - hearsay is not sufficient evidence to break a story of importance…’
 Three complainants raised the fairness standard:
- Mr Downes argued that the fairness standard was breached because Mr Hosking’s style of questioning ‘was clearly done in an attempt to catch Jacinda Ardern off guard, as opposed to actually getting to the heart of the issues. His line of questioning can be viewed as an attack and not a genuine investigation’.
- Mr Maltby argued Mr Hosking’s statements, including suggesting the Prime Minister ‘doesn’t have a clue’, lacked fairness.
- Ms Tang argued the interview was ‘disrespectful to the point of bullying’.
Other standards raised
 Mr Downes raised the accuracy standard. He stated Mr Hosking’s questions involve ‘hearsay from third parties’ and were often ‘veiled statements with no real evidence backing them up’.
 Mr Penning and Mr Maltby raised the discrimination and denigration standard. Mr Penning argued that the statement ‘caught with your pants down’ was a ‘vulgar, misogynistic thing to say to the [Prime Minister]’. Mr Maltby argued that it is denigrating the Prime Minister to suggest ‘she doesn’t have a clue’.
 Mr Maltby also raised the children’s interests standard stating, ‘no child getting ready for school should be exposed to such rudeness and lack of respect’.
The broadcaster’s response
 NZME did not accept the broadcast breached any of the standards. The reasons it gave were as follows:
Good taste and decency
- Mr Hosking is known for his particularly outspoken, robust and forthright style as a radio presenter and listeners would anticipate a tough interviewing style.
- ‘The content of this interview cannot be viewed as constituting material likely to cause undue offence or distress or undermine widely shared community standards.’
- NZME does not accept the comment was misogynistic. Mr Hosking’s comment was a ‘turn of phrase [and] a commonly used expression that means being caught unawares in a situation where one is unable to react or respond, or to be caught off guard’. The comment was directed at the Government rather than the Prime Minister. Mr Hosking had also used the phrase in previous interviews with Hon Dr Megan Woods and Hon Chris Hipkins:
- ‘this is essentially about a Government caught with their pants down, yet again…’
- (To Mr Hipkins) ‘…because you got caught with your pants down again. Before that 63% - the bulk of the workforce at the border [were] never tested.’
- NZME argued the standard did not apply as radio talkback programmes are generally accepted by the Authority to be based on opinions where listeners would not expect a balanced or authoritative examination of the issues.
- The Prime Minister was present to offer her views and perspective, and was given sufficient time to respond to Mr Hosking’s questions.
- ‘The Prime Minister is interviewed on a weekly basis on Mike Hosking Breakfast and afforded ample time to respond to questions posed by the host and to defend the Government’s decision making and performance.’
- ‘As an experienced politician and gifted public speaker, Prime Minister Ardern is quite capable of managing a tough interview.’
- The scrutiny of political figures is a vital component of freedom of expression.
- The media has an important role in holding to account those in positions of power and engaging in robust political discourse.
All other standards
- The accuracy standard does not generally apply to talkback programmes and most of Mr Hosking’s statements are clearly distinguishable as analysis, comment or opinion.
- The discrimination and denigration standard does not apply. No section of the community was identified and the comments were directed to the Prime Minister as an individual.
- The programme is targeted at adults, and children would not be listening without parents’ or guardians’ supervision.
 The good taste and decency standard1 states that current norms of good taste and decency should be maintained, consistent with the context of the programme. The purpose of this standard is to protect audience members from viewing or listening to broadcasts that are likely to cause widespread undue offence or distress or undermine widely shared community standards. Context is crucial in assessing a complaint under this standard, including the context of the particular content complained about, as well as the wider context of the broadcast.2
 The balance standard3 states when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest. The purpose of this standard is to ensure competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.4
 The fairness standard5 states broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. Individuals and organisations have the right to expect they will be dealt with justly and fairly by broadcasters, so the audience is not left with an unduly negative impression of them.6 A consideration of what is fair will depend on the nature of the programme, the context (including the level of public interest) and the nature of the individual.7 An individual’s status as a public figure who is familiar with the media is a relevant factor to fairness.8 It is also relevant to consider whether any critical comments were aimed at the participant in their business or professional and personal lives.9
 The accuracy standard10 protects the public from being significantly misinformed.11 It states broadcasters should make reasonable efforts to ensure any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.
 The discrimination and denigration standard12 protects sections of the community from verbal and other attacks, fostering community commitment to equality. The standard applies to recognised ‘sections of the community’ and not to individuals.13
 The purpose of the children’s interests standard14 is to enable audiences to protect children from material that is unduly harmful to children.15
 We have listened to the broadcast and read the correspondence listed in the Appendix.
 When we consider a complaint that a broadcast has allegedly breached broadcasting standards, we first recognise the important right to freedom of expression. Our task is to weigh the value of and public interest in the broadcast complained about, against the level of actual or potential harm caused, with reference to the objectives of the standards described above. We may only uphold a complaint where the corresponding limitation on the right to freedom of expression is reasonable and justified.
 In our view this broadcast carried a high level of public interest. We recognise the value of robust political discourse in the media and the role of media in holding to account those in positions of power. This contributes to an informed and engaged public, which is critical to a free and democratic society. The interviewing of public figures by journalists is an important feature of life in a democratic society.
 Considering the level of public interest, the contextual factors, the Prime Minister’s experience, and general expectations as to how politicians will be treated by the media, we have not found harm in breach of the standards at a level justifying regulatory intervention. We expand on our reasons below.
Good taste and decency
 The following contextual factors are relevant:16
- Mike Hosking Breakfast is a radio talkshow that discusses news and current affairs.
- Mike Hosking is well-known for being a robust interviewer who frequently offers strong, provocative opinions.17
- The key topic discussed, concerning extension of the Level 3 lockdown in Auckland, is of high public interest. It is important for the Prime Minister to be challenged and questioned about Government decisions on important matters such as this.
 While the good taste and decency standard is primarily aimed at broadcasts containing sexual material, nudity, violence or coarse language, it may also be considered in relation to broadcasts that portray or discuss material in a way that is likely to cause offence or distress. In this respect, we acknowledge that some would consider Mr Hosking’s approach and comments to be distasteful or unacceptable.
 However, it is not outside the expectations of a reasonable viewer for the Government and members of Parliament, particularly the Prime Minister, to be challenged. In the context of robust questioning on a matter of significant public interest, the approach did not reach the threshold for finding a breach of the good taste and decency standard, or justifying regulatory intervention.
 We therefore do not uphold the complaints under this standard.
 While NZME submits that the programme is classified as talkback, we consider the programme, which clearly discusses news and current affairs, to be a news and current affairs programme rather than talkback.
 Looking at whether the interview amounted to a discussion of controversial issue(s) of public importance, the item was primarily focused on the Government’s response to COVID-19. We agree this is a controversial issue of public importance. Accordingly the balance standard applied in respect of that part.
 The remaining questions raised by Mr Hosking (highlighted in paragraph  above) do not meet the criteria of being ‘discussed’ in the programme as required under guideline 8a. The issues were peripheral to the main issue discussed. They were only raised briefly, in a speculative manner, and the Prime Minister made it clear that she could not discuss them. The balance standard accordingly did not apply in respect of those interview excerpts.
Balance requirements met in relation to the COVID-19 discussion
 For the reasons below, we consider the discussion regarding the Government’s response to COVID-19 met the requirements of the balance standard:19
- The item was a 10-minute interview with the Prime Minister, clearly indicating two perspectives would be presented (Mr Hosking’s and the Prime Minister’s).
- The nature of the programme and Mr Hosking’s reputation as a robust interviewer with known political views is relevant to what audiences may expect from such an interview.
- The Prime Minister was allowed considerable time to respond to Mr Hosking’s questions and articulated her views clearly.
- Given constant, up-to-the-minute media coverage of COVID-19 issues and the Government response, there was a wealth of other information and perspectives available, minimising the likelihood of the audience being left uninformed by this one interview or as a result of Mr Hosking’s approach.
- The interview overall carried high public interest.
 We therefore do not uphold the complaints under this standard.
 Taking into account the following factors, we do not consider the broadcast overstepped the boundary causing unfair harm to the Prime Minister:20
- The Prime Minister is interviewed on the programme frequently and is well accustomed to Mr Hosking and his interview manner and style. She was a voluntary participant in the interview and given her position of power, would expect to be challenged on Government decisions.
- The Prime Minister was given a fair and reasonable chance to respond to all questions. She was clear about items she would not discuss.
- Mr Hosking’s critical comments were mostly about the Government, and aimed at the Prime Minister in her professional role, rather than at her personally.
- The interview did not go beyond what listeners can reasonably expect from a robust challenge of the Prime Minister on issues of public importance.
- The interview would not have left audiences with an unduly negative impression of the Prime Minister.
 We therefore do not uphold the complaints under the fairness standard.
Other standards raised
 We do not uphold the complaints under the remaining standards for the reasons set out below:
- Accuracy: The statements made by Mr Hosking in the programme are likely to be perceived as analysis, comment or opinion so the accuracy standard does not apply. This was a regular interview segment where Mr Hosking was asking questions rather than reporting on a particular subject or item. His statements were questions posed to the Prime Minister, rather than definitive or conclusive statements about subject matters raised.
- Discrimination and denigration: The complaints focused on the treatment of an individual, the Prime Minister, rather than a particular section of the community as required by the standard. We do not agree the ‘caught with your pants down’ comment was misogynistic. As submitted by the broadcaster, it is a phrase Mr Hosking has previously used in other situations and with both sexes. The issues raised by the complainants under this standard have been, and are more properly, dealt with under the fairness and good taste and decency standards.
- Children’s interests: The content was not outside audience expectations of the programme, or of this type of interview. It did not contain material likely to adversely affect any children who happened to be listening. The programme was targeted at an adult audience, and was unlikely to interest children.21
For the above reasons the Authority does not uphold the complaints.
Signed for and on behalf of the Authority
Judge Bill Hastings
24 February 2021
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Matthew Downes’ complaint to NZME – 27 August 2020
2 Mr Downes’ second complaint to NZME – 28 August 2020
3 Ruben Penning’s complaint to NZME – 25 August 2020
4 John Maltby’s complaint to NZME – 25 August 2020
5 Andrew Massie’s complaint to NZME – 25 August 2020
6 Suet Tang’s complaint to NZME – 25 August 2020
7 NZME’s response to Mr Downes – 21 September 2020
8 NZME’s response to Mr Penning – 21 September 2020
9 NZME’s response to Mr Maltby – 28 September 2020
10 NZME’s response to Mr Massie – 21 September 2020
11 NZME’s response to Ms Tang – 21 September 2020
12 Mr Downes’ referral to the Authority – 21 September 2020
13 Mr Penning’s referral to the Authority – 22 September 2020
14 Mr Maltby’s referral to the Authority – 28 September 2020
15 Mr Massie’s referral to the Authority – 22 September 2020
16 Ms Tang’s referral to the Authority – 21 September 2020
17 NZME’s response to the referrals – 6 October 2020
18 NZME’s response to Mr Maltby’s referral – 13 October 2020
19 Mr Downes’ final comments to the Authority – 19 October 2020
1 Standard 1 of the Radio Code of Broadcasting Practice
2 Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
3 Standard 8 of the Radio Code of Broadcasting Practice
4 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
5 Standard 11 of the Radio Code of Broadcasting Practice
6 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
7 Guideline 11a and Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
8 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
9 As above
10 Standard 9 of the Radio Code of Broadcasting Practice
11 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
12 Standard 6 of the Radio Code of Broadcasting Practice
13 Commentary: Discrimination and denigration, Broadcasting Standards in New Zealand Codebook, page 16
14 Standard 3 of the Radio Code of Broadcasting Practice
15 Commentary: Children’s interests, Broadcasting Standards in New Zealand Codebook, page 13
16 Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
17 See Burne-Field and NZME Radio Ltd, Decision No. 2020-040
18 See Newton and Television New Zealand Ltd, Decision No. 2020-137 at 
19 With reference to the factors listed in guideline 8c
20 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
21 Guidelines 3a and 3b