BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1)(a) of the Broadcasting Act 1989
Radio Pacific talkback – discussion about Exclusive Brethren and religious cults – host alleged, among other things, that Exclusive Brethren were mad, ignorant, bad neighbours and probable child abusers who should be bred out of the human race – broadcast allegedly inaccurate, unbalanced, unfair, degrading, defamatory and discriminatory

Findings
Principle 1 (good taste and decency) – subsumed

Principle 4 (balance) – subsumed

Principle 5 (fairness) – unfair to Exclusive Brethren – upheld

Principle 7 (denigration and discrimination) – encouraged denigration of members of Exclusive Brethren – upheld

Orders
Section 13(1)(a) – broadcast of a statement

Section 16(1) – costs awards totalling $3456.74

This headnote does not form part of the decision.

Broadcast

[1] The Exclusive Brethren and whether religions sects should be granted dispensation from certain laws of New Zealand was one of three topics discussed during Michael Laws’ talkback programme broadcast on Radio Pacific on 13 July 2004.  The programme is broadcast on weekdays between 9.00am and 1.00pm.

[2] During the broadcast, the host referred to the Exclusive Brethren as, among other things:

• a “nutter sect”
• a “cult”
• “potty”
• “dangerous little buggers”
• “very bad neighbours”
• “as ignorant as all get out”
• “not normal people”
• “strange and weird beasties”
• “as mad as hatters, not very bright people as well”
• “as bad as the Moonies”
• a “bunch of nutters”
• “sort of a quiet Mongrel Mob – they’re not into crime in the normal way of it but they are equally anti-social in their attitudes.  They won’t join in neighbourhood watch schemes, they won’t look after your house, if something was going to happen next door they wouldn’t contact the police, if you were being attacked in your front door they would leave you alone…”
• “very bad citizens”.

[3] He also said:

• “… you just want to take them outside and de-knacker them so that they can’t breed.  So that you can get that sort of idiocy gene out of the human race.”
• “… I think that they are probably guilty of child abuse, in my eyes…”
• “I think what the Exclusive Brethren do to their children is a form of child abuse”.
• “…children could be abused and we don’t know…”

[4] One of the callers into the show also commented that Exclusive Brethren “even [commit] incest”, and justify it on the basis of certain passages of the Bible.

Complaints

[5] Two complaints about the broadcast (one from Maurice Clist and the other from Harland Mason and his co-complainants) were referred to the Authority for investigation and review. 

Mr Clist

[6] Maurice Clist complained on behalf of himself and Fort Richard Laboratories Ltd.  Mr Clist is a member of the Exclusive Brethren and the Managing Director of Fort Richard Laboratories, an Exclusive Brethren company which had been referred to in the broadcast.  Mr Clist said that the host’s comments were unbalanced, unfair and inaccurate as:

• he had depicted the Exclusive Brethren in a “very negative light” by referring to them using such terms as “nutters”, “potty”, “nasty people”, “not normal” and “very bad citizens”
• his opinions were based on significant factual inaccuracies (eg that Exclusive Brethren do not read newspapers and cannot serve in the armed forces).

[7] Mr Clist was particularly concerned about “disgraceful, false and grossly defamatory” comments made in breach of Principles 1 (good taste and decency) and 7 (discrimination and denigration) of the Radio Code about the Exclusive Brethren which referred to them as:

• bad neighbours and bad citizens and a “quiet Mongrel Mob”
• “as bad as the Moonies” and a ”bunch of nutters” who should be “de-knackered”
• probable child abusers.

Messrs Mason, Hall, Currie and Simmons

[8] Five members of the Exclusive Brethren made a separate but similar complaint that the broadcast breached Principles 1 and 7 and the requirement that broadcasts be fair, balanced and accurate.

[9] They said the host’s “scathing” depiction of the Exclusive Brethren “smacked of religious intolerance, old fashioned religious discrimination and cruelty”.  They noted that it was inaccurate to say that Exclusive Brethren do not read newspapers and could not serve in the armed forces.  However, their main concerns were:

• comments about breeding out Exclusive Brethren by “forced sterilisation”
• comments which conveyed that Exclusive Brethren participated in criminal (child abuse) and anti-social (unneighbourly) behaviour.

[10] In conclusion, they said:

We feel very strongly that Mr Laws’ programme was designed to hold us up to ridicule in communities in which we live.  We believe he has degraded us, and he has held us up to discrimination and denigration, simply because of our religious views.  The programme was indecent.  It lacked good taste.  It was grossly defamatory.  Mr Laws’ wild, loose, unguarded statements to attract attention to himself, were grossly defamatory and anti-Christian.

Principles

The broadcaster assessed the complaints against Principles 1, 4, 5 and 7 of the Radio Code, which state:

Principle 1

In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.

Principle 4

In programmes and their presentation, broadcasters are required to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Principle 5

In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.

Principle 7

In programmes and their presentation, broadcasters are required to be socially responsible.

Guideline 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:

i)    factual; or

ii)   a genuine expression of serious comment, analysis or opinion; or

ii)   by way of legitimate humour or satire.

Broadcaster's Response to the Complainants

[12] The broadcaster did not uphold the complaints. 

[13] In relation to Principle 1 (good taste and decency) it said:

The relevant contextual features of the programme are the programme genre, time of day and target audience.

The programme is “talk” – it invites reaction and response from listeners about current issues and topics of interest to the presenter and the listening audience.  Presenters of talk programming commonly raise issues in a provocative manner in order to generate a response from the audience – the outrageous and the outspoken are common and expected features of these programmes both from the presenters and the listeners who are invited to express their views to the listening public.

The Michael Laws programme is broadcast nine to noon Monday to Friday.  It has an adult target audience.

…

Criticism of those who hold religious beliefs is unlikely to surprise or distress the regular audience unless it is obscene, directed at particular individuals or incites listeners to acts of violence or unlawful behaviour.

[14] In context, the broadcaster did not consider that the broadcast exceeded the bounds of good taste and decency.  

[15] The broadcaster also considered that Principle 4 (balance) had not been breached.  It maintained that as the programme was a “talk” format – it provided “one long opportunity for listeners to ask questions and present rebuttal” in relation to the topic under discussion.

[16] In relation to Principle 5 (fairness), the broadcaster maintained that the only “person taking part or referred to in the programme” was Fort Richard Laboratories Ltd, which it considered had been treated fairly.  It did not uphold this aspect of the complaints.

[17] As to Principle 7, Guideline 7a (denigration and discrimination), the broadcaster asserted that for this standard to be breached, comments must amount to:

“hate” speech or speech which incites violent or unlawful acts against those referred to.

[18] The broadcaster did not consider that the high threshold for establishing a breach of Principle 7, Guideline 7a had been crossed in relation to the broadcast, noting:

The comments were strong and expressed the presenter’s opinion or analysis – they were not hate speech and did not incite those listening to violence against Exclusive Brethren.

 [19] The broadcaster did not uphold this aspect of the complaints.

Referrals to the Authority

[20] Both complaints were referred to the Authority for investigation and review on the basis that the complainants were each dissatisfied with the broadcaster’s responses. 

Authority's Determination

[21] The members of the Authority have:

• listened to a recording of the broadcast complained about
• read a transcript of relevant parts of the broadcast and
• read the correspondence listed in the Appendices. 

[22] The Authority determines the complaints without a formal hearing.

Preliminary Matter

[23] In their referrals to the Authority, the complainants each identified Principles 1, 4, 5 and 7 as the specific broadcasting standards in the Radio Code which they considered had been breached.  Having carefully considered the substance of the complaints made by the complainants, the Authority considers that Principles 5 (fairness) and 7 (discrimination and denigration) best encompass the issues raised. In this circumstance, the Authority considers that it is appropriate to subsume the other matters referred by the complainants as allegations that the broadcast was unfair and denigrated the Exclusive Brethren. 

Principle 7 (denigration and discrimination)

[24] Guideline 7a to Principle 7 states that broadcasters must not encourage denigration or discrimination of sections of the community “as a consequence of legitimate expression of religious, cultural or political beliefs”.

[25] The issue for the Authority in this case is whether the broadcast, in its discussion of the Exclusive Brethren, encouraged the denigration of those who practise this religion.

[26] While Principle 7 refers to both denigration and discrimination, the Authority considers that the denigration aspect of Guideline 7a is more apposite in this case.

[27] The term “denigration” has consistently been defined by the Authority as meaning a blackening of the reputation of a class of people. (See for example Decision No 2004-129).

[28] It is also well established that a high threshold is required in order to find that a broadcast encourages denigration to such an extent that it amounts to a breach of Principle 7a (see for example Decision No 2004-001).  

[29] The broadcaster argued that a broadcast must either be “hate speech” or incite people to commit violent or unlawful acts to breach Principle 7a.  The Authority does not agree with this narrow interpretation of the standard.  While hate speech and incitement to violence have been cited as examples of denigratory material, the standard is wider than that.  The test is instead whether a broadcast blackens the reputation of the class of people referred to. 

[30] The Authority notes that Guideline 7a to Principle 7 states that the Guideline is not intended to prevent the broadcast of “the genuine expression of serious comment, analysis or opinion”. On this occasion, the Authority does not consider that the exception applies. Having considered the content of the broadcast, the Authority concludes that it amounted to an unacceptable and at times vitriolic tirade against the Exclusive Brethren.  Little attempt was made to comment on the issue based on facts, and instead the broadcast was based largely around unsubstantiated and denigratory allegations.  In the view of the Authority this took the broadcast outside of the exception in Guideline 7a. 

[31] The Authority has no doubt that the broadcast had the effect of encouraging denigration by blackening the reputation of members of the Exclusive Brethren.  The host made a large number of unfair and unsubstantiated statements about the Exclusive Brethren (summarised above in paragraphs [2] and [3]).   His commentary amounted to a sustained attack on the Exclusive Brethren. Particularly concerning were the repeated and unsubstantiated allegations, including that the Exclusive Brethren were child abusers, “idiots”, “not very bright”, bad citizens and bad neighbours – a “quiet Mongrel mob” who should not breed.

[32] Furthermore, the host did not challenge or comment on a statement made by a talkback caller that the Exclusive Brethren practised incest and made inaccurate statements about their practices (the complainants gave as examples the statements made by the host that the Exclusive Brethren do not read newspapers and cannot serve in the armed forces).   

[33] The Authority notes that all of these points were vigorously and reasonably challenged by the complainants in their correspondence, and none of the challenges was specifically addressed by the broadcaster.

[34] For the reasons given above, the Authority upholds the complaints that the broadcast breached Principle 7.

Principle 5 (fairness)

[35] The broadcaster dealt with Principle 5 by reference only to Fort Richard Laboratories, and did not consider whether the broadcast was fair to the wider Exclusive Brethren community. 

[36] The Authority disagrees with the broadcaster’s limited interpretation of Principle 5.  In its view, the fairness standard applies for the benefit of persons who are identified individually or collectively.

[37] Accordingly, the Authority has considered whether the broadcast was fair to the Exclusive Brethren.  It does not consider whether the item was unfair to Fort Richard Laboratories, as all the examples of unfairness given by Mr Clist in his complaint correspondence were references to Exclusive Brethren generally; the complaint did not make specific allegations about the fairness of comments made about Fort Richard Laboratories.

[38] The broadcaster argued that as the programme was “talk programming” fairness was met by the very fact that there are opportunities for rebuttal or response through opening lines to listeners.  The Authority does not accept the argument that talkback will always be fair because people can disagree with the host.  While this may often be the case, on this occasion the broadcast was a sustained denigratory attack on the Exclusive Brethren.  The host’s words were so unfair that they could not be remedied by a mere invitation for comment. 

[39] Furthermore, the comment from listeners did not provide any credible rebuttal or response to the host.  Finally, the Authority understands that the Exclusive Brethren do not generally listen to the radio and so it could not reasonably be expected that, in this circumstance, opening lines to talkback would elicit any contrary views from members of that religion.

[40] The Authority upholds this aspect of the complaints.

For the above reasons the Authority upholds the complaints that the broadcast by CanWest RadioWorks Ltd of Michael Laws’ talkback programme on Radio Pacific on 13 July 2004 breached Principle 5 (fairness) and Principle 7a (denigration) of the Radio Code of Broadcasting Practice.

[41] Having upheld the complaints, the Authority invited submissions from the parties on orders. 

Submissions

[42] CanWest RadioWorks, in summary, submitted that no order needed to be made.  RadioWorks contended that the primary goal of the Authority was to “set and explain to those involved the boundaries or parameters of acceptable programme content”.  It further contended that this goal would be achieved by communicating this decision to RadioWorks’ senior management and the presenter, and therefore that nothing further was required.  It submitted that any additional order would be in the nature of a penalty, and that historically the Authority has penalised broadcasters only where they have flagrantly or persistently breached the Codes of Practice. 

[43] RadioWorks also argued that:

• The presenter did not set out to flagrantly breach the Code;
• Not all the presenter’s comments were presented in a serious vein;
• There is an expectation that talk radio will act as a provocative generator of public comment, and that provocation is part of the presenter’s role;
• Other groups receive similar critical attention on this programme and these comments would not have surprised regular listeners;
• Ridicule and contempt are standard fare in talk radio;
• The broadcast was not obscene and it did not incite violence against the group.

[44] It was further noted that the Authority has often referred to the “robust environment” of talk radio. RadioWorks also went on to submit that in this decision – in conjunction with another recent decision – the Authority has lowered the threshold for denigration, which has previously been interpreted as equating to “hate speech”. 

[45] RadioWorks concluded by referring to the New Zealand Bill of Rights Act, and wrote:

In the event that the Authority is faced with a finely balanced choice in relation to the interpretation and application of the Code or the exercise of its powers under the Act, the balance should remain with the broadcaster exercising rights of freedom of expression or risk a chill factor entering this robust environment.

[46] Both Mr Clist and Mr Mason (on behalf of his co-complainants) submitted that a statement, approved or prescribed by the Authority, should be ordered.  It was argued that the statement should be “commensurate with the original and offensive broadcast” in respect of which the complaint was made.

[47] Mr Clist sought a total of $4548.62 in costs, comprising $1276.74 for obtaining audio tapes and transcripts of the broadcast, and $3271.88 in legal fees. 

[48] Mr Mason sought $3271.88 in legal fees.  The Authority was informed by both Mr Clist and Mr Mason that the sum claimed represented each party’s own separate liability for legal fees, rather than a single joint liability of $3271.88. 

[49] Mr Mason also sought reimbursement of an airfare for his travel to Auckland for the purpose of consulting his lawyer. 

[50] RadioWorks opposed any costs award to the complainants.  It noted that the complaint did not involve any complex legal issues and thus legal costs were not reasonably recoverable.  It also noted that it had previously been the practice of the Authority to award costs only when solicitors have been “on the record” rather than merely advising the complainants, as was happening in this situation.  RadioWorks also maintained that the costs of obtaining transcripts and audio tapes were not recoverable, as the only obligation of the broadcaster was to provide, free of charge, a copy of the broadcast to the Authority.

[51] Responding in turn to RadioWorks’ initial submissions, Mr Clist and Mr Mason expressed concern that RadioWorks appeared to be relitigating the substance of the complaint.

Denigration standard

[52] The Authority does not agree with RadioWorks’s submission that the decision in the present case has effectively lowered the threshold for denigration.  In RadioWorks’ submission, denigration simply comprises hate speech.  In the view of the Authority that is not, and has never been, the case.

[53] A consistent – and long-running – line of authority has emerged from the Authority’s decisions over the years to the effect that denigration amounts to the blackening of the reputation of a class of people.  Denigration might sometimes amount to hate-speech, but the two are not synonymous.

[54] As far back as 1992 the Authority defined denigration as meaning the blackening of reputation (see Decision No. 86/92).  This definition has been consistently carried though subsequent decisions, expressed most recently in Decision Nos. 2004-129 and 2004-152.  While in the decision referred to by RadioWorks in its submission (Decision No. 2004-001) the Authority did in that instance find that the words complained of amounted to hate speech, and thus breached the denigration standard, the decision does not stand for the general proposition that the two are one and the same. 

Orders

[55] The Authority does not agree with the position advanced by RadioWorks that no order is required.  Much of RadioWorks’ submission appeared to be an attempt to minimise the gravity of the breach.  The Authority does not accept the arguments advanced in this regard.  Having already considered the complaints in detail, the Authority was satisfied that the comments had the effect of blackening the reputation of Exclusive Brethren generally.  RadioWorks now maintains that not all the comments were intended to be taken seriously, that talk radio is a “robust environment”, and that people should expect provocation from this presenter.  However, the Authority has already considered the context in which the broadcast took place, and set out its view that – notwithstanding all the contextual factors of this particular talk radio programme – the broadcast was unacceptable and at times a vitriolic tirade against the Exclusive Brethren that encouraged denigration.  In light of this finding, it considers that an order is clearly appropriate.

Legal fees

[56] The Authority does not agree that it is unable to award costs for legal fees incurred with solicitors who do not act “on the record”.  Complainants are entitled to seek legal advice in the manner they choose, and in principle there is no basis on which to differentiate between obtaining legal advice to enable effective pursuit of a complaint, and retaining legal counsel to act on one’s behalf.  The issue for the Authority is to decide whether it was reasonable to incur the expense, and if so to determine the quantum of any award in the circumstances of the particular case.

[57] In the present case, the Authority considers that it was reasonable for the complainants to seek legal advice in prosecuting their complaint.  While RadioWorks maintained that no complex legal issues were involved, for a lay complainant, unfamiliar with the Broadcasting Codes and faced with lengthy and vitriolic criticism from a high-profile broadcaster, it is understandable that recourse might be made to a lawyer. 

[58] Having considered the nature of the complaint, the complexity of the issues, and the quantum of the total fees claimed, the Authority considers that it would be reasonable to make an award to each complainant of one-thirdof the fees sought, i.e. $1090 to Mr Clist, and the same amount to Mr Mason and his co-complainants collectively. 

Other expenses

[59] Nor does the Authority agree with RadioWorks’s submission that it is unable to award costs for obtaining audio tapes and transcripts of the broadcasts.  The Broadcasting Act allows for an award of reasonable costs and expenses; whether an expense claimed falls into this category is a matter for assessment in each individual case. 

[60] In relation to the costs claimed for the transcripts and audio tapes, the Authority is again sympathetic to this request.  Given the extended length of the broadcasts complained of, and the manner in which comments were interspersed throughout the show over a three-hour period, it was reasonable, in the view of the Authority, for the complainants to obtain both audio tapes and transcripts of the broadcast in order to be able to pursue the complaint more effectively.  While it is unusual for the Authority to make awards to cover such expenses, each case is dependent on its own facts; in the present case the Authority considers that the expense was a reasonable expense incurred in lodging this formal complaint. 

[61] The Authority considers that Mr Mason’s airfare to Auckland does not fall into the same category.  Accordingly, that expense is not recoverable.

[62] For this reason the Authority orders full reimbursement of the cost incurred by Mr Clist in obtaining audio tapes and transcripts of the broadcast, being $1276.74.

Broadcast of statement

[63] In view of the number of unacceptable comments included in this lengthy broadcast, the Authority also considers that RadioWorks should broadcast an approved statement, summarising the Authority’s decision. 

Bill of Rights

[64] For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching its determinations to uphold the complaint and to impose these orders. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

Orders

1. Pursuant to s.16(1) of the Act, the Authority orders CanWest RadioWorks Ltd to pay to the complainant Mr Maurice Clist costs and expenses in the amount of $2366.74, within one month of the date of this decision.
2. Pursuant to s.16(1) of the Act, the Authority orders CanWest RadioWorks Ltd to pay to the complainant Mr Harland Mason costs in the amount of $1090, within one month of the date of this decision.
3. Pursuant to s.13(1)(a) of the Broadcasting Act 1989, the Authority orders CanWest RadioWorks Ltd to broadcast on Radio Pacific, within one month of the date of this decision, a statement, summarising the Authority’s decision, that explains why the complaint was upheld as a breach of Standards 5 and 7 of the Radio Code of Broadcasting Practice. The statement shall be approved by the Authority and broadcast at a date and time approved by the Authority.
   
   These orders shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Joanne Morris
Chair
18 February 2005

Appendices

The following correspondence was received and considered by the Authority when it determined these complaints:

   Clist complaint

1. Maurice Clist’s Formal Complaint to CanWest RadioWorks Ltd – 6 August 2004
2. Mr Clist’s Referral to the Broadcasting Standards Authority – 16 September 2004
3. CanWest‘s Response to the Formal Complaint – 28 September 2004
4. Mr Clist’s Further Referral to the Broadcasting Standards Authority – 7 October 2004
5. CanWest‘s Response to the Referral – 19 November 2004
   
   Mason and Others complaint
   
   
6. Harland Mason and others’ Formal Complaint to CanWest RadioWorks Ltd – 8 August 2004
7. Mr Mason and others’ Referral to the Broadcasting Standards Authority – 15 September 2004
8. CanWest‘s Response to the Formal Complaint – 28 September 2004
9. Mr Mason and others’ Further Referral to the Broadcasting Standards Authority – 18 October 2004
10. CanWest‘s Response to the Referral – 19 November 2004