McCullough and NZME Radio Ltd - 2020-008 (9 June 2020)
- Judge Bill Hastings (Chair)
- Paula Rose QSO
- Susie Staley MNZM
- Cheryall McCullough
BroadcasterRadio New Zealand Ltd
[This summary does not form part of the decision.]
The Authority has not upheld a complaint that a discussion on a talkback segment on Newstalk ZB breached broadcasting standards. The Authority found that the complainant, who had called in to the programme, was not treated unfairly as she was given an opportunity to voice her opinion and was treated respectfully. The Authority also found that the broadcast’s criticism of United States President Donald Trump did not exceed what could fairly be expected to be levelled against a highly controversial United States President. The Authority noted that the balance and accuracy standards apply only to news, current affairs and factual programmes, and the accuracy standard does not apply to statements clearly distinguishable as analysis, comment or opinion. The discrimination and denigration standard also did not apply as it does not apply to individuals or organisations.
Not Upheld: Fairness, Accuracy, Balance, Discrimination and Denigration
 Cheryall McCullough phoned in to Miles Davis’s show during a discussion in which Mr Davis was criticising United States President Donald Trump. During the call, she referred to her friends living in the United States who supported President Trump:
…everything has got better for the middle class since President Trump was elected. I know he appears outrageous to us for what we hear on the media, things he’s done in the past…
 Ms McCullough went on to argue that under President Trump, veterans received healthcare, unemployment had decreased and more factories were opening. Mr Davis responded that healthcare for veterans was passed by President Obama, and that the rest was not true as it was ‘Donald Trump’s lies’ and that ‘if you look at the statistics behind, and the reality, it’s the opposite.’ Mr Davis then presented two statistics, that 40% of Americans supported President Trump and 53% ‘want him removed from office.’ They went on to discuss the statistics:
MD: So you’re disputing that 53% want Trump removed?
CM: Well I wouldn’t know -
MD: Because you’ve got three friends who say they love him.
CM: No, they don’t say that at all. They say their lives have improved since he got into power…I only know what’s told to me.
MD: …I appreciate you sharing that because I think it’s a legitimate view and snapshot of the way some people are thinking in the States, so I appreciate that.
CM: …Thank you.
 The item was broadcast on 4 January 2020 on Newstalk ZB. As part of our consideration of this complaint the members of the Authority have listened to a recording of the broadcast, and we have read the correspondence listed in the Appendix.
 Ms McCullough complained that Mr Davis misrepresented her views and that the broadcast breached the fairness, accuracy, balance and discrimination and denigration standards of the Radio Code of Broadcasting Practice for the following reasons:
- Mr Davis was ‘denigrating President Trump in an extreme way’ and some callers requested ‘a more balanced discussion’.
- He ‘deliberately misquoted her’ by saying that she had said her American friends ‘loved Mr Trump.’
- This would mislead listeners as to what she had said, and had the effect of ‘putting words in [her] mouth’.
 NZME rejected ‘the contention that Mr Davis put words in the complainant’s mouth or deliberately misquoted her.’ It commented that ‘the host challenged Ms McCullough on what she said but did so in a courteous manner.’ It did not uphold the complaint for the following reasons:
- Mr Davis’s ‘critical assessment of President Trump would be shared by many listeners’ and was not unfair to him, ‘taking into account the high value…given to commentary on public figures’.
- Mr Davis also did not treat Ms McCullough unfairly as she was given time to express her view and when challenging her, ‘he did so in a respectful and measured manner.’
- ‘The host also acknowledged the legitimacy of the complainant’s view and thanked her for her contribution and input.’
- ‘Mr Davis’ comments on Trump were clearly his opinion’ to which the accuracy standard does not apply.
- ‘The comments complained of were made by Mr Davis during [a] talkback show’ and ‘listeners would not have expected a balanced or authoritative examination of these issues, in the context of the talkback environment.’
- ‘Mr Davis gave callers including [the complainant] ample time to express their views on President Trump and disagree with him, such that a reasonable range of other perspectives was presented.’
Discrimination and denigration
- The complainant did not identify a recognised section of the community she considered had been denigrated or discriminated against.
The relevant standards
 The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The purpose of this standard is to protect the dignity and reputation of those featured or referred to in broadcasts.1
 The accuracy standard (Standard 9) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead. The objective of this standard is to protect audiences from being significantly misinformed.2
 The balance standard (Standard 8) states that 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 discrimination and denigration standard (Standard 6) protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief.
 The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. Our task is to weigh the value of and public interest in the broadcast complained about, against the level of actual or potential harm that may be caused by the broadcast, with reference to the objectives of the standards described above. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.
 This item, the discussion of an influential political leader and his impacts on the world has some level of public interest. With regard to this complaint, we understood Ms McCullough’s key concern to be the way that her views were presented by the host. The potential harm is harm to her and to the audience who could have been misled as to her views. Ms McCullough’s concerns were best dealt with under the fairness standard. The other standards had limited applicability to the complaint, which we explain below.
 The fairness standard applies to individuals or organisations participating in or referred to in a broadcast. Ms McCullough has not identified specifically who she thought was treated unfairly, but her complaint raised issues with the treatment of herself and of President Trump.
 We first considered the treatment of Ms McCullough. A consideration of what is fair depends on the nature of the programme and its context (including the public significance of the broadcast).3 Participants and contributors should be informed, before a broadcast, of the nature of the programme and their proposed contribution.4
 We found the following factors relevant in our consideration of whether Ms McCullough was treated fairly:
- She willingly called in to a talkback show to participate in a discussion about President Trump, during which she knew the host was criticising President Trump.
- While she was occasionally interrupted by Mr Davis, she was given time to present her views and opinions.
- She corrected the host when he said her friends ‘love’ President Trump.
- Mr Davis thanked her for her contribution to the discussion and commented that she presented ‘a legitimate view’.
 On listening to the broadcast and taking into account those factors, we found that Mr Davis’s statement ‘you’ve got three friends who say they love him’ did not have the effect Ms McCullough claimed, as she immediately corrected him. Viewers would have had a reasonable understanding of Ms McCullough’s position, particularly given the amount of time she was given to put forward her perspective. In addition, Mr Davis’s closing comments would have ensured viewers were not left with an unfavourable impression of Ms McCullough. Therefore we do not consider that she was treated unfairly.
 We also considered whether President Trump was treated unfairly. Ms McCullough submitted that the host was ‘denigrating President Trump in an extreme way’. It is well established that the threshold for finding a breach of the fairness standard, in relation to public figures and politicians who are familiar with dealing with the media, is higher than for a layperson or someone unfamiliar with the media.5 We do not think the criticism in this broadcast went beyond what could fairly be expected to be levelled against a highly controversial United States President.
 Therefore we do not uphold the complaint under the fairness standard.
The remaining standards
 We do not uphold the complaint under the remaining standards raised, for the following reasons:
- Accuracy: Talkback is usually not subject to the accuracy standard.6 In addition, the statement identified as inaccurate was Mr Davis’s interpretation of Ms McCullough’s position, which she then corrected, and was not a statement of fact to which the accuracy standard applies.7
- Balance: The balance standard only applies to news, current affairs or factual programmes,8 and does not apply to talkback programmes.9
- Discrimination and Denigration: The discrimination and denigration standard only applies to recognised ‘sections of the community’ which is consistent with the grounds for discrimination listed in the Human Rights Act 1993.10 It does not apply to individuals and organisations.11
 We therefore do not uphold these aspects of the complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
26 May 2020
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Cheryall McCullough’s complaint to NZME – 6 January 2020
2 NZME’s response to Ms McCullough – 31 January 2020
3 Ms McCullough’s response to NZME – 31 January 2020
4 Ms McCullough’s referral to the BSA – 5 February 2020
5 NZME’s final comments – 10 March 2020
1 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
2 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
3 Guideline 11a
4 Guideline 11b
5 See, for example, Wakelin and Television New Zealand Ltd, Decision No. 2018-060
6 Guideline 9d
7 Guideline 9a
8 Guideline 8a
9 See Parlane and MediaWorks Radio Ltd, Decision No. 2018-075 at 
10 Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 15
11 As above