Elders and RadioWorks Ltd - 2010-100
- Peter Radich (Chair)
- Tapu Misa
- Mary Anne Shanahan
- Leigh Pearson
- Anna Elders
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Morning Rumble – breakfast show hosts on The Rock discussed a story featured on Close Up the previous night about two girls who alleged that, twelve-years prior, an ex-All Black had engaged in sexual activity with one of them while she had been unconscious – the hosts noted that the girl had accepted a payment from the man to settle the matter – one host made the comment, “See, all I see is that that woman and her mate have cashed in at both ends” – allegedly in breach of good taste and decency, controversial issues, fairness and responsible programming standards
Standard 1 (good taste and decency) – contextual factors – not upheld
Standard 6 (fairness) – some elements of unfairness – however, hosts entitled to voice their opinions in the manner in which they did – freedom of expression – not upheld
Standard 4 (controversial issues) – discussion did not take place in a news, current affairs or factual programme – standard not applicable – not upheld
Standard 8 (responsible programming) – broadcast did not contain any material that could be considered socially irresponsible – not upheld
This headnote does not form part of the decision.
 During a segment on The Rock’s breakfast show the Morning Rumble, broadcast on Wednesday 30 June 2010, the hosts discussed and criticised an item that had featured on the current affairs programme Close Up the previous night.
 The Close Up item looked into historical allegations being made by two women that a former All Black had engaged in sexual activity with one of them while she had been intoxicated and unconscious after a night of heavy drinking and smoking marijuana.
 In relation to the allegation about the former All Black, the hosts made various comments including:
Now there’s more, and I’m going “Oh God, the dude is getting stitched up here”. Now what’s happened is a lady, from twelve years ago, twelve years ago, is watching the thing when [name of man] is on Close Up from talking about his thing from Fiji, she’s watching and she is going “he can’t get away with this”. So she got in touch with Close Up and said, “Listen [name of man] slept with my mate twelve years ago and she was asleep”.
So what had happened was, and her friend openly admitted that twelve years ago they were going round, they were a bit loose, and they were hunting All Blacks after games, like they were going into bars and essentially just trying to bang some All Blacks. And so what happened is [name of man] has gone home with these two girls, they’ve bought pot on the way home...
Host 2: Whose job is this to report this stuff?
I don’t know. I was pretty disgusted. And so what’s happened is [name of man] has gone to their home, they’ve fallen asleep and he’s had sex with her. Her mate’s woken up and gone, “What are you doing?” he’s like “Don’t worry she’s loving it” and she’s kind of asleep...
Host 2: You heard all of this on Close Up last night?
Host 1: Yes.
Host 2: Oh, that’s disgusting. That’s gutting.
So then the flatmate of these two girls comes in, he’s a bloke, he’s a security guard, he’s like “Get the hell out [name of man]” ... They write a letter to the New Zealand Rugby Union a day or two after, the New Zealand Rugby Union send over the manager of the All Blacks. At the time, he’s sort of like, okay, well this is awful, I can’t believe [name of man] has done this, I’m disgusted, says the manager, What can we do to make this better, how can we smooth this over? They offered counselling and then [name of man] phoned up a few days later saying “how much money can I give you?”, and this is just after the guy’s been married ... But I’m sitting there going, yes, awful situation, because no one should ever, my guess is, essentially, to a certain degree, rape.
Host 2: No. Well, no. There’s two sides to every story. You can’t say that.
She got money, she got fifteen hundred bucks. So what’s happened is she’s seen the story, she’s got in touch with Close Up and Close Up have obviously had to thoroughly, thoroughly, thoroughly investigate these claims.
No. Thoroughly, thoroughly, thoroughly pay her heaps of money to run the story. She’s making money at both ends that one.
And I could not help but think, and some might disagree with this, that [name of man] has been stitched-up nicely.
Most probably, you don’t know both sides. Whether or not it will go to court or not or...
Host 1: She’s thinking about going to the police now!
See, all I see is that that woman and her mate have cashed in at both ends. There’s a pun in there somewhere if you read between the lines.
 Anna Elders made a formal complaint to RadioWorks Ltd, the broadcaster, alleging that the hosts’ comments breached broadcasting standards.
 The complainant noted that the hosts had discussed the allegations made by the two women on Close Up the previous evening. She considered that The Rock’s breakfast show was “not the most appropriate forum to debate such a sensitive subject” and stated that “it was the obvious opinions of the hosts and the flippant nature in which the issue was discussed” which she found offensive.
 Ms Elders argued that, during the course of the discussion, it became obvious that one of the hosts “believed the girl in question was motivated by financial gain, discrediting the possibility the allegation may have been truthful”. She contended that the girls had not been “talked about in a fair manner”.
 The complainant was of the view that the discussion, and, in particular the host’s remark, “See, all I see is that that woman and her mate have cashed in at both ends. There’s a pun in there somewhere if you read between the lines”, breached standards of good taste and decency.
 Ms Elders contended that both hosts painted “a very one-sided view of the allegations and the impact that their piece could have on the girls in question. Given that this was national radio, I believe that the hosts were not paying due respect to the seriousness of the theme – non-consensual sex and rape”. She argued that the discussion had also breached broadcasting standards relating to controversial issues and responsible programming.
 Standards 1, 4, 6, and 8, and guideline 1a of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These provide:
Standard 1 Good Taste and Decency
Broadcasters should observe standards of good taste and decency.
Broadcasters will take into account current norms of good taste and decency bearing in mind the context in which any content occurs and the wider context of the broadcast e.g. programme classification, target audience, type of programme and use of warnings etc.
Standard 4 Controversial Issues – Viewpoints
When discussing controversial issues of public importance in news, current affairs or 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.
Standard 6 Fairness
Broadcasters should deal fairly with any person or organisation taking part or referred to.
Standard 8 Responsible Programming
Broadcasters should ensure that programme information and content is socially responsible.
Broadcaster's Response to the Complainant
 With respect to Standard 1, RadioWorks was of the view that the hosts’ comments “clearly focused on the positioning of the story within a news and current affairs show and they were clearly of the view that this ‘news’ was generated rather than reported by Close Up.” It said that the hosts were cynical about Close Up’s conduct and the motivation of the women in the report.
 The broadcaster stated that it appreciated that the complainant held a different view to the hosts and that she found the discussion offensive. However, it argued that the hosts were entitled to voice their opinions provided it was acceptable within the context of the broadcast. RadioWorks stated that The Rock and its programming were targeted at a male audience aged between 25 and 44 years. It said the station adopted a “raw, down-to-earth and politically incorrect approach” which appealed to its audience. It was of the view that, “while the station’s approach does not have universal appeal, those to whom it does appeal are entitled to have their own radio station which reflects their values, language and attitudes”.
 RadioWorks noted that the Authority had previously stated that, “The purpose of the good taste and decency standard is not to prohibit challenging material, or material that some people may find offensive. Its purpose is to ensure sufficient care is taken so that challenging material is played only in an appropriate context, and that the challenges are not so offensive that they are unacceptable regardless of context.”
 The broadcaster argued that the opinions of the hosts were delivered in a conversational tone and it noted that they did not use any strong language. The broadcaster considered that, even if the audience did not agree with the hosts’ ideas, it was unlikely that a significant number of listeners would have found the comments offensive. It was of the view that the hosts’ comments were within audience expectations of taste and decency and it declined to uphold the Standard 1 complaint.
 Looking at Standard 4 (controversial issues – viewpoints), RadioWorks argued that the hosts had not discussed a controversial issue of public importance. It considered that, while the personal conduct of professional sportspeople was a topic intermittently visited by general media, the subject was not controversial in the sense that there was an ongoing debate about it. It was of the view that Standard 4 did not apply in the circumstances and it declined to uphold this aspect of Ms Elders’ complaint.
 Turning to fairness, RadioWorks noted that the hosts had discussed a story that was already in the public arena, and one that had the full consent and participation of the women Ms Elders believed had been treated unfairly. It contended that it was “fair to assume that when deciding to go public with the information they had on [name of man] the women would have considered the media speculation it would generate about their motives and that the speculation may not be in their favour”.
 The broadcaster argued that the hosts’ comments were clearly opinion about the Close Up broadcast and part of the wide media coverage of the story, and it noted that one of the hosts had said “there are two sides to every story”. It was of the view that the women referred to had been treated fairly and declined to uphold the complaint that Standard 6 had been breached.
 With respect to Standard 8 (responsible programming), RadioWorks noted that the complainant believed that the broadcast was socially irresponsible because the hosts’ opinions detracted from the seriousness of the allegations. It contended that the show’s adult target audience was “likely to have the ability to make up their own minds about the Close Up broadcast” and that, if they had seen the programme, their opinion would remain the same regardless of the hosts’ point of view or tone. It argued that “if listeners formed an opinion without seeing the programme, this is not a lack of social responsibility on the part of the The Rock”. The broadcaster declined to uphold the Standard 8 complaint.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Ms Elders referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. She reiterated that the main basis of her complaint was “the flippant tone of the commentary” and the “offensive manner in which two women, the alleged rape victim in particular, were discussed within the broadcast”.
 The complainant considered that the topic of “rape” was a controversial issue of public importance to which Standard 4 applied. She argued that, regardless of contextual factors such as the station’s target audience, the hosts’ derogatory approach towards the woman alleging that she had been raped was offensive and had breached broadcasting standards.
 The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
Standard 1 (good taste and decency)
 When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast. On this occasion, the relevant contextual factors include:
- the discussion was broadcast at approximately 6.20am
- it was broadcast during children’s normally accepted listening times
- the expectations of regular listeners
- the programme had an adult target audience of males between 25-44 years.
 The Authority has previously stated (e.g. Yeoman and TVNZ1) that standards relating to good taste and decency are primarily aimed at broadcasts that contain sexual material, nudity, violence or coarse language. However, the Authority has also said that it “will consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress”.2
 The Bill of Rights Act 1990 gives people freedom to express their opinions and only allows for that right to be limited in cases where it is reasonable and proportionate to do so. When looking at an alleged breach of broadcasting standards, we must balance the broadcaster’s right to freedom of expression against the purpose of the broadcasting standard concerned.
 The comments which are the subject of this complaint were made by the two hosts of a breakfast show during a “blokey” discussion in which both men voiced their opinions about a story that had featured on the current affairs programme Close Up the previous evening. The story concerned allegations of sexual misconduct made by two unnamed women against a former All Black.
 The tone of the discussion was conversational, and the hosts did not use any strong or abusive language, although parts of the conversation could be described as crude. The hosts were critical of the women and cynical of their motives. One of them commented that “that woman and her mate have cashed in at both ends”.
 While some listeners may have disagreed with the hosts’ opinions, and found some of their comments objectionable, we do not consider that there was anything so objectionable as to warrant us imposing a limitation on the broadcaster’s freedom of expression.
 Taking the above contextual factors into account, we decline to uphold the complaint that Standard 1 was breached.
Standard 6 (fairness)
 The fairness standard states that broadcasters should deal fairly with any person or organisation “taking part or referred to” in an item. In our view, anyone who knew the women and the details of their encounter with the man would have been able to identify who the hosts were talking about. As a result, we find that the women were “referred to” in the broadcast.
 While the hosts’ discussion could be described as crude and ill-informed, we note that the women had voluntarily gone public with their information and, as such, had opened themselves up to both positive and negative commentary.
 We consider that the discussion comprised of legitimate expression of opinion and that reasonable listeners would not have been left with an unfair impression of the two women. We conclude on that basis that the item did not breach Standard 6 when balanced against the broadcaster’s right to freedom of expression.
 Accordingly, we decline to uphold the fairness complaint.
Standard 4 (controversial issues – viewpoints)
 Standard 4 states that when discussing controversial issues of public importance 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.
 In our view, the hosts’ conversation about a news story that had featured on a current affairs programme the previous evening was not a news, current affairs or factual programme for the purposes of the standard. As a result, we conclude that Standard 4 is not applicable in the circumstances.
Standard 8 (responsible programming)
 Standard 8 requires broadcasters to ensure that programme information and content is socially responsible.
 We agree with RadioWorks’ contention that the show’s adult target audience would have had the ability to make up their own minds about the Close Up broadcast. In our view, the programme did not contain any material that could be considered to be socially irresponsible and we decline to uphold the Standard 8 complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
26 October 2010
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Anna Elders’ formal complaint – 30 June 2010
2. RadioWorks’ response to the formal complaint – 4 August 2010
3. Ms Elders’ referral to the Authority – 5 August 2010
4. RadioWorks’ response to the Authority – 10 August 2010
1Decision No. 2008-087
2Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November 2006)