Woolrych & Glennie and NZME Radio Ltd - 2019-100 (23 April 2020)
- Judge Bill Hastings (Chair)
- Paula Rose QSO
- Susie Staley MNZM
- Kathryn Woolich
- Robert Glennie
ProgrammeMike Hosking Breakfast
BroadcasterRadio New Zealand Ltd
[This summary does not form part of the decision.]
The Authority did not uphold two complaints that comments made by Mike Hosking during his Mike’s Minute segment breached the discrimination and denigration and accuracy standards. Discussing two recent immigration policy decisions by the Government, Mr Hosking commented, ‘discrimination is no bad thing’ and, ‘Where do too many of the radicalised nutters come from? That particular part of the planet [Africa and the Middle East]... We don’t want to take the risk of a poor-ish person’s parent arriving – so why a jihadist?’ The Authority acknowledged the complainants’ concerns that Mr Hosking’s choice of language was inflammatory. However, it found that in the context of the item, which carried public interest, the comments complained about were brief and moderated by the remainder of the item. Mr Hosking was expressing his genuinely held opinion on a legitimate issue, rather than being malicious or nasty. Therefore the comments did not reach the high threshold for encouraging discrimination or denigration, and did not warrant limiting the right to freedom of expression. The Authority also found Mr Hosking’s comments were distinguishable as analysis, comment and opinion so the accuracy standard did not apply.
Not Upheld: Discrimination and Denigration, Accuracy
 During his Mike’s Minute segment on the Mike Hosking Breakfast show, Mike Hosking discussed a recently announced Government decision to scrap the Africa and Middle East family link refugee policy (introduced by the National Party), which had prevented refugees from the Middle East and Africa from coming to New Zealand unless they already had family living here. Mr Hosking also discussed the reintroduction of a new parent visa category to come to New Zealand.
 Mr Hosking gave his view that the New Zealand Government was justified in limiting the number of older immigrants coming into the country by linking their entitlement to the income of the supporting child. In this context he commented: ‘…being discriminatory is no bad thing.’
 Mr Hosking also questioned the rationale for, on the one hand, limiting the number of older persons who can enter New Zealand, while on the other hand removing the restriction on refugees from the Middle East and Africa entering into New Zealand. He said:
Where do too many of the radicalised nutters come from? That particular part of the planet... We don’t want to take the risk of a poor-ish person’s parent arriving – so why a jihadist?
 The segment was broadcast at 7.25am on 8 October 2019, on Newstalk ZB. In considering these complaints, we have listened to a recording of the segment complained about and we have read the correspondence listed in the Appendix.
 Robert Glennie and Katharine Woolrych complained to the broadcaster, NZME, that Mr Hosking’s comments were inflammatory and discriminatory, particularly following the events of 15 March 2019. Both complainants considered his comments breached the discrimination and denigration standard of the Radio Code of Broadcasting Practice. Ms Woolrych also considered the broadcast breached the accuracy standard as Mr Hosking gave no evidence for his comments.
The relevant standards
 The discrimination and denigration standard (Standard 6) protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief.
 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 purpose of this standard is to protect the public from being significantly misinformed.1
Freedom of expression and outcome
 The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. Our task is to first consider the value and level of public interest in the broadcast complained about, recognising the importance of the right to freedom of expression. We then have to weigh that value against the level of actual or potential harm that may be caused by the broadcast, having regard to the issues raised in the complaint. We may only interfere and uphold a complaint where limiting the right to freedom of expression is reasonable and justified.
 Looking first at the value of the broadcast complained about, the members of the Authority agreed that this item carried value and legitimate public interest. Issues surrounding immigration policy are of public importance and of concern to the New Zealand public. The robust talkback radio environment plays an important role in encouraging open and informed discourse about such issues. This includes the role of Mr Hosking (and other talkback hosts) in encouraging debate and discussion about legitimate issues, sometimes by expressing strong, provocative opinions on air. Having said that, we also noted that in this case Mr Hosking’s delivery of his views on this topic was relatively measured and balanced compared to what may be typically expected of him.
 In terms of the harm alleged to have been caused by this broadcast, we understand the complainants’ concerns that Mr Hosking’s choice of language in the comments complained about was inflammatory. In certain circumstances this type of language could be seen to reinforce negative stereotypes or encourage discrimination against people from particular parts of the world.
 However, the role of this Authority is to apply the relevant Radio Code standards and guidelines to the content complained about, with reference to the particular contextual factors surrounding the broadcast, on a case by case basis. This means that inflammatory words on their own may not automatically result in a breach of broadcasting standards; the wider context of the broadcast is crucial to our decision. For the reasons we outline below, and taking into account the context of this Mike’s Minute broadcast, overall we did not find that the content reached the threshold for finding a breach of broadcasting standards or limiting the right to freedom of expression.
Discrimination and denigration
 Mr Glennie argued the broadcast breached the discrimination and denigration standard for the following reasons:
- New Zealand has always prided itself on being a nation that welcomes diversity and is tolerant of different nationalities, ethnicities, cultures.
- This broadcast ‘flagrantly violated’ guidelines 6a and 6b to the discrimination and denigration standard:
- Mr Hosking ‘literally says discrimination is good. And that we should be more discriminatory’ (guideline 6a).
- He breached guideline 6b ‘when he used wording such as “jihadist” suggesting that someone from there [‘that part of the world’] is coming to commit holy war in New Zealand’.
- Referring to the factors outlined in guideline 6d to the standard:
- The time of broadcast (7.25am) was such that Mr Hosking knew a lot of people would be listening to his ‘potentially inflammatory comments’.
- This is one of New Zealand’s major radio stations, and it failed to adhere to the social standards the public expects of all broadcasters.
- ‘This was not hate speech. …But it was highly discriminatory and sought to denigrate the backgrounds of some of the most vulnerable refugees and asylum seekers we let in.’
 Ms Woolrych made the following points in relation to discrimination and denigration:
- Mr Hosking ‘discriminates and denigrates throughout the article’.
- He openly encouraged discrimination saying ‘discrimination is no bad thing’.
- He also denigrated a section of the community several times.
The broadcaster’s response
 NZME did not find any breach of the discrimination and denigration standard, saying:
- Speech that is rude or offensive does not automatically breach the standard. The BSA has consistently found a high level of invective/condemnation and often an element of malice or nastiness is required to find a breach of this standard, in light of the right to freedom of expression.
- The nature of the programme is relevant when assessing whether the broadcast ‘encouraged’ discrimination or denigration. The BSA has previously recognised that ‘talkback radio is a robust, opinionated environment, where hosts are known for making provocative statements to stimulate robust debate. Audience expectations would reflect this. We expect our listeners, given the target adult audience, would anticipate some forthright opinions from hosts.’
- Regarding Mr Hosking’s comment to the effect that ‘being discriminatory is good’, ‘Mr Hosking’s comments merely reflect the fact that when instituting immigration policies, countries may be guided by economic considerations, including whether a particular demographic may pose more of a burden on public resources (e.g. healthcare services) and policies that favour skilled migrants. Endorsing such a policy does not amount to “a high level of condemnation” and does not constitute a breach of this standard.’
- Regarding his later comment referring to the risk of a ‘poor-ish person’s parent’ and a ‘jihadist’ entering the country: ‘In disagreeing with the government’s decision to scrap the Africa and Middle East family link refugee policy, Mr Hosking queries the logic of, on the one hand, limiting the number of older persons who can enter New Zealand, with, on the other hand, removing the restriction on refugees from the Middle East and Africa entering into New Zealand’.
- Guideline 6b to the standard acknowledges the importance of freedom of expression, and guideline 6c protects the genuine expression of serious comment, analysis or opinion. While some may not agree with Mr Hosking, he was entitled to give his opinion.
- The Authority has stated in a previous decision relating to this standard, that ‘audiences expect that Newstalk ZB will often feature conservative and controversial opinions.’ Mr Hosking is well-known for his conservative and controversial views and as noted above the Authority has stated that speech which offends is not determinative of a breach.
 The guidelines for the application of the discrimination and denigration standard state:2
- The importance of freedom of expression means that a high level of condemnation, often with an element of malice or nastiness, will be necessary to conclude that a broadcast encouraged discrimination or denigration in breach of the standard.
- Comments will not breach the standard simply because they are critical of a particular group, because they offend people, or because they are rude; the Codebook recognises that allowing the free and frank expression of a wide range of views is a necessary part of living in a democracy.
- Serious commentary, factual programmes, legitimate drama, humour and satire, are valuable forms of speech, and are unlikely to breach the standard unless the content of the broadcast amounts to hate speech or a sustained attack on a particular group.
 In addition to these principles, the following factors are relevant to our assessment of whether the broadcast went too far, to the point of encouraging discrimination or denigration:3
- the language used
- the tone of the person making the comments
- the forum in which the comments were made, for example, a serious political discussion, or a satirical piece
- whether the comments appeared intended to be taken seriously, or whether they were clearly exaggerated
- whether the comments were repeated or sustained
- whether the comments made a legitimate contribution to a wider debate, or were gratuitous and calculated to hurt or offend.
 Looking first at the language used by Mr Hosking, we again want to acknowledge the complainants’ concerns that Mr Hosking’s choice of language was inflammatory. We understand the view that this type of language used in relation to people of a certain ethnic group or nationality may offend people and in some circumstances may be seen as encouraging negative stereotypes and discriminatory attitudes.
 However, having regard to the principles of this standard and the remaining factors listed above, we reached the view that overall, in the context of the item, Mr Hosking’s comments did not reach the threshold for encouraging the denigration of, or discrimination against, people from Africa and the Middle East as a section of the community. Factors supporting this view included:
- While the comments complained about could be inflammatory when taken in isolation, overall Mr Hosking’s tone was moderate and measured, and seriously contemplating the issues. His tone was not nasty or malicious but rather centred on his views on the validity of the immigration policies discussed.
- Mr Hosking immediately qualified his comments saying, ‘Do they all come from there? No they don’t. Is every person from there a danger? Of course they’re not.’ In our view these qualifications were sufficient to moderate his choice of language and its potential impact. In this context the comments did not amount to hate speech or a sustained attack on people from Africa and the Middle East.
- Mr Hosking also clearly contextualised and explained his view that ‘being picky is good’ and ‘discrimination is no bad thing’ with reference to immigration policy. He was not seriously advocating discrimination in all forms or making a blanket suggestion that ‘discrimination is good’.
- As submitted by the broadcaster, audience expectations of talkback radio, Newstalk ZB as a station, Mike Hosking, and the Mike’s Minute segment are such that audience members expect robust, opinionated discussion and sometimes provocative or controversial views in the interests of generating debate about topics of public interest.
- The comments complained about were not repeated or sustained. These were only two short comments within the wider broadcast which was more than two minutes in length. They were made in the context of Mr Hosking giving his genuinely held opinion on what he considered to be the contradictory nature of the two immigration policies discussed.
 Overall, we were satisfied that there was public interest in the topic being discussed and the views expressed, and value in generating discourse and debate around these issues. The potential harm arising from Mr Hosking’s comments and choice of language, when taken in context, did not outweigh the right to freedom of expression in this case. Therefore we do not uphold the complaints under the discrimination and denigration standard.
 Ms Woolrych’s accuracy complaint concerned Mr Hosking’s comment, ‘Where do too many of the radicalised nutters come from? That particular part of the planet...’ Ms Woolrych said, ‘For this, he cites no evidence, and ignores the fact that extremism and radicalisation is present all around the world, beyond solely the Middle East and Africa.’
The broadcaster’s response
 NZME did not find any breach of the accuracy standard, saying:
- Talkback programmes are not usually subject to the accuracy standard, ‘unless the host makes an unqualified statement of fact’ (guideline 9d).
- Regular listeners understand the established format of Mike’s Minute and expect a robust articulation of Mr Hosking’s opinion on a topical issue within this segment. Mr Hosking’s comments on the recent changes to government immigration policy were clearly a matter of opinion, so the standard does not apply (guideline 9a).
 The key issue is whether Mr Hosking’s comments, identified in Ms Woolrych’s complaint, were statements of fact to which the accuracy standard applied, or rather whether listeners would have understood them to be Mr Hosking’s analysis, comment and opinion. If they were opinion, the accuracy standard does not apply.
 The Codebook guidance on distinguishing fact from opinion notes that a fact is verifiable: something that can be proved right or wrong. An opinion, on the other hand, is contestable and others may hold a different view.4 Mr Hosking’s choice of language – ‘too many’ of the ‘radicalised nutters’ – was in our view exaggerated and descriptive rather than precise. It reflected value judgments. It was not something that could be easily verified. This supports the view that his comments were analysis and opinion rather than fact.
 In addition, there is an established audience expectation that the Mike’s Minute segment is an opinion piece in which Mr Hosking gives his own, often strongly expressed, views on his chosen topic. Audiences also expect this from Mr Hosking and Newstalk ZB generally. Therefore listeners were likely to take this piece as being Mr Hosking’s own opinions, rather than unqualified statements of fact.
 We concluded that in the context, Mr Hosking’s comments were distinguishable as analysis, comment and opinion, so the accuracy standard did not apply.
 In any event, we note again that a critical factor in our decision in this case, was that Mr Hosking did immediately qualify his comments and his qualifications clearly acknowledged that extremists and radicalisation are present elsewhere, and not everyone coming from the identified part of the world is dangerous: ‘Do they all come from there? No they don’t. Is every person from there a danger? Of course they’re not.’ This in our view addresses Ms Woolrych’s concerns and reduced the potential impact of Mr Hosking’s earlier comments.
 In these circumstances we do not uphold the accuracy complaint.
For the above reasons the Authority does not uphold the complaints.
Signed for and on behalf of the Authority
Judge Bill Hastings, Chair
23 April 2020
The correspondence listed below was received and considered by the Authority when it determined this complaint:
Robert Glennie’s complaint
1 Robert Glennie’s formal complaint – 19 October 2019
2 NZME’s decision on the complaint – 8 November 2019
3 Mr Glennie’s referral to the Authority – 26 November 2019
4 NZME’s response to the referral – 12 December 2019
5 Mr Glennie’s confirmation of no further comment – 8 January 2020
Katharine Woolrych’s complaint
6 Katharine Woolrych’s formal complaint – 12 October 2019
7 NZME’s decision on the complaint – 8 November 2019
8 Ms Woolrych’s referral to the Authority – 16 November 2019
9 NZME’s response to the referral – 3 December 2019
10 Ms Woolrych’s final comments – 14 December 2019
1 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
2 Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
3 As above
4 Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 62