Royal and The RadioWorks Ltd - 2001-213
- P Cartwright (Chair)
- B Hayward
- J H McGregor
- R Bryant
- Alan Royal
ProgrammeRadio Pacific talkback
BroadcasterCanWest RadioWorks Ltd
Channel/StationRadio Pacific (RadioWorks)
Radio Pacific – talkback host's reference to graffiti artists’ attitude to suicide included the words – they "should commit suicide more quickly" – immature – bigoted – offensive
Principle 1 and Principle 7 Guideline 7a – no tape – decline to determine
Principle 8 – relevant – uphold
This headnote does not form part of the decision.
 Graffiti artists were discussed on talkback broadcast on Radio Pacific at about 4.15pm on 1 June 2001. In reply to a caller expressing concern about the suicide rate among that group, the host had used words to the effect "it is a pity more of them do not commit suicide more quickly".
 Alan Royal complained to The RadioWorks Ltd, the broadcaster of Radio Pacific, that the remark was "immature, bigoted and offensive". As he did not receive a response, he referred his complaint to the Broadcasting Standards Authority under s.8(1)(b) of the Broadcasting Act 1989.
 In its reply to the Authority, The RadioWorks Ltd questioned whether the complainant’s recollection was accurate. If it was, it added, the host’s comments were a genuine expression of opinion as allowed by the standards and it declined to uphold the complaint.
For the reasons below, the Authority declines to determine the complaint about the broadcast. It finds the failure to supply a tape of the broadcast a breach of Principle 8.
 The members of the Authority have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Graffiti artists were the subject of discussion on Radio Pacific’s talkback at about 4.15pm on 1 June 2001. Alan Royal said that one caller commented that the group was prone to suicide. The host, Mr Royal wrote, had then responded to the effect "it is a pity more of them do not commit suicide more quickly". Mr Royal complained that the remark was "immature, bigoted and offensive".
The Referral to the Authority
 As Mr Royal did not receive a response from Radio Pacific, he referred the complaint the Authority under s.8(1)(b) of the Broadcasting Act 1989.
The Broadcaster’s Response to the Complaint
 In its initial response, The RadioWorks, the broadcaster of Radio Pacific, advised that it had no record of receiving the complaint. It also said that it did not now have a recording of the item as it did not receive notice of the complaint until some seven weeks after the broadcast. Accordingly, it added, it was difficult to comment on the accuracy of the complaint.
 In its second response, The RadioWorks expressed surprise that the complaint had been lost. With reference to Mr Royal’s concerns, it pointed out that he was unable to recall precisely what the host (Mark Bennett) had said. Nevertheless, even if it was an accurate recollection, The RadioWorks said the comment was "a genuine expression of opinion" which was permitted under Guideline 7a (ii) of Principle 7 of the Radio Code of Broadcasting Practice.
 The RadioWorks assessed the complaint under Principle 7, Guideline 7a. It reads:
In programmes and their presentation, broadcasters are required to be socially responsible.
7a Broadcasters will not portray people in a manner which encourages denigration of or discrimination against any section of the community on account of gender, race, age, disability, occupational status, sexual orientation; or as the consequence of legitimate expression of religious, cultural or political beliefs. This requirement does not extend to prevent the broadcast of material which is:
1. factual; or
2. a genuine expression of serious comment, analysis or opinion; or
3. by way of legitimate humour or satire.
The Complainant's Final Comment
 In his final comment, Mr Royal stated that he had telephoned the broadcaster on the evening of 1 June and was told that the appropriate person would contact him the following day. As that did not occur, he had made his complaint by letter. Mr Royal was adamant that the host’s comments included the words "should commit suicide more quickly". Mr Royal did not accept that the remark was appropriate as a genuine expression of opinion after the earlier caller’s comments to the effect that graffiti artists were more prone to suicide.
The Authority’s Determination
 The Authority records its concern that no tape of this broadcast was available. It notes that Mr Royal, after what he said was an unsuccessful attempt to resolve his complaint with Radio Pacific over the telephone, sent a written complaint to Radio Pacific in Wellington. It appears that his complaint was not forwarded to Radio Pacific’s central office in Auckland.
 When asked by the Authority for its response to the complaint, The RadioWorks, the broadcaster of Radio Pacific, said a tape was unavailable as seven weeks had elapsed between the time of broadcast and the time its central office was advised of the complaint.
 The RadioWorks has raised some questions about what the host actually said. It argued that even if the complainant’s record is correct, the broadcaster was not in breach of Principle 7 given the provision in Guideline 7a (ii), which allows for the expression of a genuine opinion as a reason for the broadcast of a comment which encourages discrimination or denigration against a group in the community.
 Had a tape been available, the Authority might have asked The RadioWorks to consider the broadcast as an alleged breach of Principle 1. It provides:
In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.
 The Authority has held on other occasions that in the absence of a tape it is inclined to adopt the version of events which is most favourable to the complainant. But in this case it finds it impossible to assess the complaint without knowing the precise content of the exchange and the broad context in which it arose. Even on the complainant’s view of the matter, there is room for doubt as to whether the broadcast infringed standards and, in those circumstances, the Authority is not prepared to find against the broadcaster. The better course is for it to decline to determine this part of the complaint.
 The requirement to retain a tape of any broadcast complained about is set out in Principle 8 of the Radio Code, which reads:
For a period of 35 days after broadcast, broadcasters are required to be able to provide a copy of the tapes of all open line and talk back programmes, and all outside broadcast news and current affairs coverage. For the same period, broadcasters are also required to retain, or be able to obtain, a tape or script of all news or current affairs items.
8a In the event of a formal complaint, broadcasters will retain all relevant programme information, records and recordings until the complaint has been finally dealt with.
8b Tapes and transcripts required pursuant to Principle 8 and all relevant information retained in the event of a formal complaint shall be made available to the Broadcasting Standards Authority on the Authority's written request.
 The complainant has followed the procedures for formal complaints set out in the Broadcasting Act 1989. The Authority finds that the broadcaster’s conduct fell short of its obligations.
For the reasons set forth above, under s.11(b) of the Broadcasting Act 1989 the Authority declines in all the circumstances to determine the complaint which alleged a breach of the standards relating to fairness and accuracy [the standards should read: good taste and decency and discrimination and denigration]. It finds that Principle 8 of the Radio Code of Broadcasting Practice was breached because the broadcaster failed to retain a recording of the programme.
 Section 16(1) of the Act confers on the Authority the power to order costs to be paid in any proceedings. The Authority has given serious consideration to whether it is appropriate to order the broadcaster to pay costs to the complainant. On this occasion it has decided that a warning will suffice.
 The Authority records that the lapse on the broadcaster’s part strengthens its resolve to make and promulgate rules under s.30 of the Broadcasting Act in relation to the retention by broadcasters of recordings of programmes broadcast by them.
Signed for and on behalf of the Authority
6 December 2001
The following correspondence was received and considered by the Authority when it determined this complaint:
- Alan Royal’s Complaint to The Broadcasting Standards Authority – 22 July 2001
- The RadioWork’s Initial Response to the Authority – 7 August 2001
- The RadioWork’s Substantive Response to the Authority – 17 August 2001
- Mr Royal’s Final Comment – 31 August 2001
- The RadioWorks Response on Availability of Tape – 19 October 2001