Saunders and NZME Radio Ltd - 2016-089 (16 February 2017)
- Peter Radich (Chair)
- Te Raumawhitu Kupenga
- Paula Rose
- Leigh Pearson
- Dean Saunders
ProgrammeLeighton Smith Show
BroadcasterNew Zealand Media and Entertainment
Channel/StationNewstalk ZB # 2
[This summary does not form part of the decision.]
During the Leighton Smith Show, presenter Leighton Smith, in relation to a headline regarding Pope Francis’ warning to then President-elect Donald Trump, ‘do not back away from UN climate pact’, said, ‘I don’t want to offend, certainly not insult, any Catholics listening, but how did you end up with this tosser?’ The Authority did not uphold a complaint that this comment was derogatory, crude and demeaning. Mr Smith was entitled to express his opinion on the Pope’s stance on climate change and while his comment was considered offensive by the complainant, in the context of a talkback radio show, the Authority did not consider it undermined current norms of good taste and decency. The comment did not breach the other broadcasting standards raised by the complainant, as it reflected Mr Smith’s opinion, did not discriminate or denigrate against a section of the community, and as a public figure speaking publicly on a controversial issue, Pope Francis could have expected commentary and criticism and was therefore not treated unfairly by Mr Smith.
Not Upheld: Good Taste and Decency, Discrimination and Denigration, Balance, Accuracy, Fairness
 During the Leighton Smith Show, presenter Leighton Smith read out a recent headline, saying, ‘Pope warns Trump: do not back away from UN climate pact. Pope declares, quote, “crisis of climatic change”.’ He then said:
I don’t want to offend, certainly not insult, any Catholics listening, but how did you end up with this tosser?
 Dean Saunders complained that this was a ‘crude and demeaning term’ to use to describe the Catholic Pope. He said that using derogatory language such as ‘tosser’ displayed ‘a complete lack of personal and professional conduct, balance and fairness’.
 The issues raised in Mr Saunders’ complaint are whether the broadcast breached the good taste and decency, discrimination and denigration, balance, accuracy and fairness standards, as set out in the Radio Code of Broadcasting Practice. In our view the good taste and decency standard is the most relevant, so we have focused our determination on that standard. We address the remaining standards at paragraph  below.
 The segment was broadcast at 10.45am on 30 November 2016 on Newstalk ZB. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Did the broadcast threaten current norms of good taste and decency?
 The purpose of the good taste and decency standard (Standard 1) is to protect audience members from broadcasts that are likely to cause widespread undue offence or distress, or undermine widely shared community standards. In a radio context, this standard is usually considered in relation to offensive language, sexual references or references to violence, but may also apply to other material presented in a way that is likely to cause offence or distress.
The parties’ submissions
 Mr Saunders submitted that:
- Mr Smith was able to express his viewpoint ‘in a deliberately crude and vulgar manner and without either individual or company responsibility’. He said that there were a number of ways Mr Smith could have chosen to express his dislike to what was reported, but instead he ‘consciously chose to denigrate a respected leader for shock value’.
- Calling the Pope a ‘tosser’ displayed ‘a complete lack of personal and professional conduct’ and the ‘public expects greater professionalism and accuracy’ from a radio host in Mr Smith’s position.
- It was clear that Mr Smith’s comments were intended ‘to insult and denigrate this leader’. The ‘tone and malice’ in Mr Smith’s voice ‘clearly demonstrate[d] the intent in which his comment was meant’.
 NZME submitted that:
- Context was important when considering the good taste and decency standard. This was a talkback broadcast and NZME Radio submitted that the Authority has previously recognised that hosts, such as Mr Smith, ‘are known for making provocative statements with the aim of instigating robust discussion with callers’.
- Mr Smith has been described as ‘New Zealand’s best known global warming sceptic’, and as such, the broadcaster argued that ‘the audience would very likely have known that Mr Smith would hold strong opinions on this subject’.
- The word ‘tosser’ has moved away from its original, slang meaning, to that of ‘someone of whom you have a low opinion’. It was unlikely children would be listening to the broadcast and use of the word ‘tosser’ would ‘not be outside audience expectations given the nature of the programme and the higher thresholds that talkback radio attracts’.
 We accept that Mr Saunders found the term used by Mr Smith to describe the Pope offensive.
 However, the right to freedom of expression permits individuals to express themselves, and their opinions, in the way they choose. This right must be weighed against the level of harm alleged to have been caused by the broadcast, in terms of the underlying objectives of the relevant broadcasting standards.
 While the word ‘tosser’ has not previously been tested in our research assessing the level of offensiveness of certain words,1 in this case we are satisfied that Mr Smith’s use of this term to describe the Pope did not threaten current norms of good taste and decency at such a level that would warrant our intervention. In reaching this conclusion, we have had regard to the following contextual factors:
- the nature of talkback radio, as a robust, opinionated environment
- the brief, passing use of the term to reflect Mr Smith’s views on Pope Francis’ stance
- Newstalk ZB’s adult target audience
- audience expectations of the host – who is well known for being a climate change sceptic – and the programme.
 The term used by Mr Smith indicated his reaction to the Pope’s public position on climate change. While it may have been insulting or crude, he was entitled to express this view. In the context of a talkback radio programme, in which hosts, including Mr Smith, are known for making provocative statements in order to stimulate robust debate, we do not consider use of the term would have caused widespread undue offence or distress, or undermined widely shared community standards.
 We therefore do not uphold this aspect of Mr Saunders’ complaint.
Did the item breach any other broadcasting standards?
 The complainant also complained under the discrimination and denigration, balance, accuracy and fairness standards. Our reasons for finding these standards were either not applicable or not breached are set out below.
Discrimination and denigration
 The discrimination and denigration standard applies only to sections of the community, and not to individuals, such as the Pope. We also do not consider that Mr Smith’s comment could reasonably be said to apply to Catholic people generally, as a section of the community.
 In any event, the remark did not carry undertones of malice or nastiness at a level which would have encouraged the denigration, or different treatment of, all Catholics. The comment was a brief, off-the-cuff remark, and was made in the context of a talkback radio show, in which hosts are likely to speak in a provocative manner. Mr Smith’s comment was consistent with audience expectations of the programme and his style of presentation.
 We therefore do not uphold this aspect of Mr Smith’s complaint.
 In order for the balance standard to apply, the subject matter must be an issue ‘of public importance’, it must be ‘controversial’ and it must be ‘discussed’ in a news, current affairs or factual programme.
 The Leighton Smith Show provides audiences with a mix of political analysis, world news and talkback. Each segment must be assessed on a case-by-case basis to determine whether it amounts to news and current affairs, to which the balance standard will apply. In our view, this brief discussion of the issue was clearly signalled to audiences as being part of a talkback segment, approached from Mr Smith’s particular perspective.2 His comment did not amount to a serious examination of the Pope’s stance on climate change, but was a brief, peripheral comment which reflected Mr Smith’s personal views of climate change and the Pope’s stance.3
 We therefore do not consider that the broadcaster was required to provide a range of different perspectives during this segment, and do not uphold this aspect of the complaint.
 Talkback programmes will not usually be subject to the accuracy standard, unless the host makes an unqualified statement of fact.4 Additionally, the accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.5 In this case, Mr Smith’s comment in relation to the Pope was clearly his own opinion, as towards the end of the segment, he clearly stated ‘that’s my opinion’ and ‘I think he’s dangerous’ [our emphasis].
 We therefore do not uphold the accuracy complaint.
 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’.6 While Mr Smith’s comment was critical and would have been seen by some as insulting, in our view Mr Smith’s comment did not result in unfairness to Pope Francis, taking into account the high value in terms of freedom of expression given to commentary on public figures, particularly in relation to controversial topics such as climate change. The Pope is a public figure who is the subject of international discussion and attention.
 We therefore do not uphold the fairness complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
16 February 2017
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Dean Saunders’ formal complaint – 30 November 2016
2 NZME’s response to the complaint – 21 December 2016
3 Mr Saunders’ referral to the Authority – 22 December 2016
4 NZME’s response to the referral – 29 January 2017
5 Mr Saunders’ final comments – 31 January 2017
1 What Not to Swear: The Acceptability of Words in Broadcasting (Broadcasting Standards Authority, 2013)
2 Guideline 8c
3 Guideline 8c
4 Guideline 9d
5 Guideline 9a
6 See Kiro and RadioWorks Ltd, Decision No. 2008-108 at