Roberts and NZME Radio Ltd - 2018-082 (16 January 2019)
- Judge Bill Hastings (Chair)
- Wendy Palmer
- Susie Staley
- Paula Rose
- Stefan Roberts
ProgrammeThe Leighton Smith Show
BroadcasterNew Zealand Media and Entertainment
Channel/StationNewstalk ZB # 2
[This summary does not form part of the decision.]
During a segment on The Leighton Smith Show, host Leighton Smith quoted a listener’s views on news sources such as CNN, the BBC and Newshub. Mr Smith went on to say that consumers of similar sources lived in ‘blissful ignorance’ because they did not listen to the views of ‘the other side’. The Authority did not uphold a complaint that Mr Smith’s comments were biased and dismissive towards reputable news sources. The Authority noted that, while talkback radio is not immune to broadcasting standards, the balance and accuracy standards in particular 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. In this case, and taking into account wider contextual factors such as audience expectations of the programme (which is predominantly talkback) and the reputation of Mr Smith, the Authority agreed that Mr Smith’s comments were clearly distinguishable as opinion and listeners would not have been left misinformed or misled. This was an opinion open to Mr Smith to express, and was not unfair to the news organisations or their consumers. The Authority therefore found that its intervention, in upholding the complaint and limiting the broadcaster’s right to freedom of expression, would be unjustified.
Not Upheld: Balance, Accuracy, Fairness
 During a segment on The Leighton Smith Show, host Leighton Smith read selected quotes from an article (submitted by a listener by email) and quoted the listener’s views on ‘biased media’, referring to news sources such as CNN, the BBC and Newshub.
 Mr Smith went on to say:
See, if you don’t read, or you don’t watch, you don’t know what the other side are saying, which is why so many people live in blissful ignorance… usually the other side, the CNN watchers, the Washington Post and New York Times readers…
 The segment was broadcast at 11.07am on 30 August 2018 on Newstalk ZB.
The complaint and the broadcaster’s response
 Stefan Roberts complained that the broadcast breached the balance, accuracy and fairness standards of the Radio Code of Broadcasting Practice, because in his view:
- Mr Smith’s comments were biased and dismissive towards internationally reputable news sources. As a senior figure in the broadcasting industry, Mr Smith was required to be professional and to provide listeners with reasoned and balanced discussions.
- His programme discussed news and current affairs, and as such Mr Smith was required to ensure that the views he broadcast were accurate, balanced and fair.
 NZME responded:
- The accuracy and balance standards applied only to news, current affairs and factual programmes, and could not be considered in relation to talkback.
- The news sources referred to by Mr Smith during the segment were large, public-facing media organisations and could expect that some members of the public would disagree with their reporting. Mr Smith’s comments were therefore not unfair.
The standards and relevant guidelines
 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 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 requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.1 Guideline 9d to the standard states that talkback programmes will not usually be subject to the accuracy standard.
 Finally, the fairness standard (Standard 11) requires broadcasters to deal fairly with any person or organisation taking part or referred to in a broadcast.
 Our starting point in our determination of complaints is to recognise the importance of the right to freedom of expression. This includes both the broadcaster’s right to present information and ideas to the public, and the audience’s right to receive that information. When making our decision, we weigh the value of the broadcast item, as well as the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused by the broadcast.
 The right to freedom of expression therefore allows broadcasters to voice opinions that might be controversial or unpopular, provided they do not cause undue harm. In this case, the harm alleged to have been caused by the complainant is harm to the audience of this programme generally, who may have been left misinformed or misled about reputable news sources as a result of Mr Smith’s statements.
 The first question we considered when making our decision on this complaint was whether the requirements of the balance and accuracy standards, which apply only to news and current affairs programmes, applied to this segment of The Leighton Smith Show.
 We agreed with the complainant that The Leighton Smith Show provides a mix of world news and current affairs, and talkback. Talkback radio is not immune to broadcasting standards, and each segment must be assessed on a case-by-case basis to determine whether the requirements of the balance and accuracy standards will apply.
 In this particular segment, Mr Smith quoted the views of a listener before providing his own comment or opinion in response. Mr Smith impliedly agreed with the listener that the news sources he referred to were ‘biased’, and made a comment about the consumers of those news sources.
 In our view, this segment of the programme was clearly comprised of Mr Smith’s comment or opinion, and was not news and current affairs. The views expressed by Mr Smith were contestable, as other listeners (such as the complainant), could hold a different view. We agreed that his statements could therefore be categorised as opinion-based value judgements, rather than statements of fact.
 In coming to this conclusion, we have taken into account the context of the wider broadcast (which is predominantly talkback), audience expectations of the programme, and the reputation of Mr Smith as a more conservative or right wing voice on many issues.
 In this case, and taking into account the wider contextual factors, we do not consider listeners would have been left misinformed or misled through Mr Smith voicing his opinion on well-known news sources or the consumers of those news sources.
 Finally, the fairness standard is not intended to prevent criticism of public figures, as ‘it is an essential element of free speech that even the most trenchant criticism of public figures be allowed.’2 The same can be said for Mr Smith’s criticism of well-recognised international news media organisations such as CNN, the New York Times and the Washington Post. This was an opinion open to Mr Smith to express, and given its brevity, was not unfair to those organisations or their consumers.
 For these reasons, we consider that our intervention, in upholding the complaint and limiting the broadcaster’s right to freedom of expression, would be unjustified.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
16 January 2019
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Stefan Roberts’ formal complaint – 30 August 2018
2 NZME’s response to the complaint – 20 September 2018
3 Mr Roberts’ correspondence with NZME and referral to the Authority – 27 September 2018
4 NZME’s response to the referral – 15 October 2018
5 Mr Roberts’ final comments – 16 October 2018
6 NZME’s confirmation of no further comment – 18 October 2018
1 Guideline 9a
2 Saunders and Television New Zealand Ltd, Decision No. 2016-089, at