Smith and The Radio Network Ltd - 2002-058
- P Cartwright (Chair)
- R Bryant
- J H McGregor
- B Hayward
- Wayne Smith
ProgrammeLeighton Smith Morning Show
BroadcasterThe Radio Network Ltd # 2
Leighton Smith Morning Show – talkback host described protest group as a pack of mongrels – encouraged discrimination and offensive language
Principle 7 guideline 7a – does not meet high threshold required for discrimination – no uphold
Principle 1 – dismissive and insulting – uphold
Broadcast of approved statement
This headnote does not form part of the decision.
 Protesters outside a school in Hamilton were described by the host of the Leighton Smith Morning Show as "mongrels" and "a pack of mongrels". The programme is broadcast on weekdays on Newstalk ZB, and the comments complained about were made shortly before 10.00am on 15 November 2001.
 Wayne Smith complained to The Radio Network Ltd (TRN), the broadcaster, that the tone and the manner of the remarks encouraged discrimination against Maori. He later complained that the comments breached the standard requiring good taste and decency.
 In response, TRN explained that the host considered the description applied to all abusive, aggressive and abrasive groups, regardless of ethnicity, and the comments, in the robust talkback environment, did not breach the standards.
 Dissatisfied with TRN’s decision, Mr Smith referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority upholds the offensive language aspect of the complaint and orders the broadcast of an approved statement. It declines to uphold the discrimination aspect.
 The members have listened to a tape of the part of the programme which was complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The Leighton Smith Morning Show is broadcast by TRN each weekday between 8.30–midday on most of the Newstalk ZB network. It is a talkback programme hosted by Leighton Smith.
 On the morning of 15 November 2001, some of the callers spoke about a school in Hamilton, and a protest taking place outside. The host referred to the protesters as "mongrels" and as a "pack of mongrels".
 Wayne Smith complained to the broadcaster about the manner and time of the host’s remarks. He contended that the host often commented negatively on Maori issues. Stating explicitly that he did not approve of the actions of protesters, Mr Smith nevertheless objected to their vilification. He sought the broadcast of an apology.
 TRN assessed the complaint under guideline 7a of Principle 7 of the Radio Code of Broadcasting Practice. The Principle and guideline provide:
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:
i) factual; or
ii) a genuine expression of serious comment, analysis or opinion, or
iii) by way of legitimate humour or satire.
The Broadcaster’s Response to the Complainant
 TRN acknowledged that the term "mongrels" was strong, but pointed out that the host had explained during the broadcast that he considered that it was legitimate to apply it to any group which was "abusive, aggressive and abrasive". It also pointed out that some listeners had taken the opportunity during the programme to air their objection to the use of the words.
 On the basis that the comment was the expression of a genuine opinion, TRN declined to uphold the complaint.
The Complainant’s Response to the Broadcaster
 Arguing that the use of the word "mongrel" was not legitimate, Mr Smith wrote to TRN citing a number of dictionary definitions.
The Complainant’s Referral to the Broadcasting Standards Authority
 In referring his complaint to the Authority, Mr Smith indicated that he was most unhappy with the broadcaster’s response to it. He explained that he considered that the broadcast also breached the requirement for good taste and decency. He also argued that TRN was required, under the standards, to provide him with a tape of the broadcast complained about.
 Mr Smith copied to the Authority a copy of his letter of complaint about the use of the phrase which he had sent to the office of the Race Relations Conciliator.
The Broadcaster’s Response to the Authority
 TRN maintained that the comment referred to an abusive group of protesters and their ethnicity was immaterial. It also pointed out strong words were often used in talkback and, on this occasion, a caller had on air protested strongly at the host’s remarks.
 TRN argued that the phrase was a legitimate opinion which breached neither Principle 7 nor the requirement in Principle 1 of the Code. Principle 1 reads:
In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.
The Complainant’s Final Comment
 Mr Smith emphasised that his complaint focused on the host’s use of the word "mongrel", and the phrase, "a pack of mongrels". He also maintained that he was not implying racism on the host’s part. Mr Smith wrote:
I consider that the ethnicity of the group (being Maori) did have a major influence on [the host’s] use of the word "mongrel" and the term "a pack of mongrels". That however is my opinion only and cannot be taken as fact. Once again the ethnicity of the group is immaterial and irrelevant and has no bearing whatsoever on my complaint against [the host].
 Mr Smith reiterated his contentions that the term breached Principle 1, and that its use encouraged denigration and discrimination. He also repeated his argument that the broadcaster was required to make available a tape of the programme complained about to a complainant.
The Authority’s Determination
 The Authority first deals with Mr Smith’s contention that he is entitled to a tape of the programme under Principle 8 of the Radio Code.
 The Principle and guidelines provide:
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 Authority acknowledges that Mr Smith’s interpretation is possible if the Principle stood alone. However, the Authority considers that the wording in guideline 8b makes clear that the requirement in the Principle "to provide" a tape means that the broadcaster, on request, must provide the Authority - not the complainant - with the appropriate tapes and/or transcripts.
 The Authority has considered the substance of the complaint under both guideline 7a of Principle 7, and Principle 1.
 Guideline 7a is substantially a reproduction of s.21(1)(e)(iv) of the Broadcasting Act 1989. On a number of occasions (e.g. Decision Nos: 1993-131, 1999-194) the Authority has explained that there is a high threshold before a breach of this standard occurs.
 It considers that the use of the word "mongrel" was intended to be both abusive and contemptuous. However, the Authority finds, it was not used in a way which portrayed people in a manner which encouraged denigration of, or discrimination against, a section of the community. Accordingly, the Authority does not uphold this aspect of the complaint. Because the Authority does not believe that the high threshold required for a breach of Principle 7 was reached, it does not consider it necessary to examine TRN’s argument that the comment was the genuine expression of an opinion.
 In turning to the Principle 1 aspect of the complaint, the Authority refers to the definition of "mongrel" in the dictionary. According to the Oxford Dictionary of New Zealand, it reads:
A term of abuse or contempt for a person, animal or thing.
 In the Authority’s opinion, it is abusive to describe people as "mongrels" and "a pack of mongrels". The Authority accepts that talkback radio is a robust environment where some degree of insulting language may occur during debates. However, it considers that the language used on this occasion was beyond the boundaries of acceptability for talkback radio.
 In determining the Principle 1 complaint, the Authority notes the contemptuous tone used by the host, and that the language was repeated. The Authority upholds this aspect of the complaint.
 The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. It is the clear intention of the Broadcasting Act to limit freedom of expression. Section 5 of the New Zealand Bill of Rights Act 1990 provides that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". The Authority is firmly of the opinion that the limits in the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. In addition, for the reasons given in this decision, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In coming to this conclusion, the Authority has taken into account all the circumstances of the complaint, including the nature and the context in which the terms complained about were used, and the potential impact of an order.
 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 when exercising its powers under the Broadcasting Act on this occasion.
For the above reasons, the Authority upholds the complaint that the broadcast by The Radio Network Ltd of remarks on Newstalk ZB on 15 November 2001 breached Principle 1 of the Radio Code of Broadcasting Practice.
It declines to uphold any other aspect of the complaint.
 Having upheld the complaint, the Authority may make an order under ss.13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.
 On the basis that the decision set a precedent, TRN maintained that no penalty should be imposed. Mr Smith sought the broadcast of a statement outlining the decision, and which included an apology, to be broadcast on five consecutive mornings. He also suggested that the broadcaster be required to pay costs of $5000.
 The Authority concludes that the broadcast of a statement which summarises the findings is appropriate. In imposing the following Order, the Authority has considered the provisions of the New Zealand Bill of Rights Act 1990, and is firmly of the opinion that the Order is reasonable and demonstrably justified in a free and democratic society.
Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders The Radio Network Ltd to broadcast, within one month of the date of this decision, a statement explaining why the complaint was upheld. The statement shall be broadcast at a time and date to be approved by the Authority. The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority and the complainant of the manner in which the order has been complied with.
Signed for and on behalf of the Authority
9 May 2002
The following correspondence was received and considered by the Authority when it determined this complaint:
- Wayne Smith’s Complaint to The Radio Network Ltd – 17 November 2001
- TRN’s Response to Mr Smith – 26 November 2001
- Mr Smith’s Response to TRN – 1 December 2001
- TRN’s Response to Mr Smith – 7 December 2001
- Mr Smith’s Complaint to the Race Relations Conciliator – 11 December 2001
- Mr Smith’s Referral to the Broadcasting Standards Authority – 13 December 2001
- TRN’s Response to the Authority – 14 January 2002
- Mr Smith’s Final Comment – 19 January 2002
- TRN’s Submission on an Order – 8 April 2002
- Mr Smith’s Submission on an Order – 10 April 2002