Yang and NZME Radio Ltd - 2020-079 (14 October 2020)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- Helena Yang
ProgrammeHauraki Drive with Thane Kirby
BroadcasterNew Zealand Media and Entertainment
[This summary does not form part of the decision.]
The Authority declined to determine a complaint about an item on Hauraki Drive with Thane Kirby, which alleged that Mr Kirby made a comment suggesting COVID-19 contact-tracing information could be used to contact attractive women. There was an issue with identifying the correct time of broadcast, and the broadcast complained about was not retained by the broadcaster, despite the complainant signaling she would be taking the matter further with the Authority. The Authority also noted the broadcaster should have responded early to the complainant so that she had an opportunity to resubmit her complaint within the required timeframe. Without being able to listen to the actual words used in the broadcast, the tone, and the surrounding context, the Authority concluded it must decline to determine the complaint, which it recognized was a very unsatisfactory outcome. However it noted the Authority’s efforts to seek further information about the broadcast had enabled the broadcaster to address the complaint and uphold it as a breach of the good taste and decency standard.
Declined to Determine: Section 11(b) in all the circumstances
 A complaint was made to NZME, and subsequently referred to this Authority, about comments alleged to have been made during Hauraki Drive with Thane Kirby. The complaint alleged that the host, Mr Kirby suggested on air that COVID-19 contact-tracing information could be used to contact ‘extremely attractive women’, which breached the good taste and decency standard of the Radio Code of Broadcasting Practice because:
- Mr Kirby ‘might be joking and I hope he was joking. However that joke was in very bad taste.’
- ‘Given that Hauraki listeners are predominately male it may give other people ideas.’
- ‘Even the thought of using personal information to contact people is disgusting.’
- Such a comment undermines the contact-tracing system as it will discourage people from giving their real name and details.
 The time of broadcast was identified in the complaint as 5pm on 18 May 2020, on Radio Hauraki.
 On 26 June 2020, there was some correspondence between the broadcaster, NZME, and the complainant about the correct time of broadcast. The broadcaster advised it had listened to the audio of the 18 May 2020 broadcast from 4.30pm until 5.30pm, and was unable to locate the content complained about. On this basis it considered it was unable to formally respond to the complaint. However it recognised the seriousness of contact-tracing as a mechanism for combatting COVID-19 and said the complaint had been passed on to the Hauraki Content Director to guide future content development.
 Dissatisfied with this response, the complainant indicated on 26 June 2020 she would be referring the matter to the Authority. We received Ms Yang’s referral on 22 July 2020. In response to our request for further detail about the time of broadcast, Ms Yang said the broadcast content could have occurred at around 4pm, rather than 5pm as originally advised.
 On 28 July 2020, when we requested a copy of the audio from 4pm until 4.30pm, NZME advised that it was no longer able to access it in its programming logs because of the time that had passed since the broadcast.
 We first considered whether the Authority had jurisdiction to accept and consider Ms Yang’s complaint, given the issue around the time of broadcast.
 In order to trigger the Act’s complaints procedures and the Authority’s jurisdiction, a formal complaint must (among other things) allege that the broadcaster has failed to comply with one or more of the broadcasting standards contained in the Act or the relevant Code, in respect of a particular programme it has broadcast.1
 Ms Yang’s complaint clearly identified the programme Hauraki Drive with Thane Kirby on 18 May 2020, and clearly alleged a breach of the good taste and decency standard. Whether or not the broadcaster was able to locate the content described in the complaint, we find the above criteria were met and therefore we have jurisdiction to accept and consider Ms Yang’s complaint.
Our deliberations and the outcome
 Having found Ms Yang’s complaint is within our jurisdiction, we then considered whether we are able to properly determine it, given the relevant broadcast is unavailable for us to listen to.
 There were two procedural deficiencies in this case, in our view, which have left us in the very unsatisfactory position of being unable to make any definitive findings in respect of Ms Yang’s complaint.
Retention of broadcasts
 The first relates to the retention of broadcasts. Under section 30(1) of the Broadcasting Act 1989, the Authority ‘may from time to time make and promulgate rules in relation to broadcasters to ensure that recordings of programmes broadcast by them are retained by the broadcaster or some other person, and are able to be obtained by the broadcaster when required to do so by the Authority.’ Failure to comply with any such rules is an offence and carries a possible fine of up to $5,000.2
 There are currently no formal rules in place. The Codebook however records that ‘All broadcasters are expected to retain recordings of all broadcasts for 35 days. In the event of a complaint, this assists the broadcaster to argue their point of view and ensures the BSA gains a correct understanding of the content, context and tone of the broadcast.’3
 It is also expected that broadcasters will retain for longer than 35 days, any broadcasts that are the subject of a complaint to the broadcaster, especially where the complainant indicates they will pursue the matter further by referring it to the Authority. In this case, Ms Yang clearly indicated her intention to bring the matter to the Authority in her response to NZME on 26 June 2020. She referred the complaint to us within the required statutory timeframe on 22 July 2020. Despite this, the broadcast complained about was not kept.
 NZME advised it is well aware of its obligations with respect to retaining all broadcasts, and has ‘unreservedly apologised’ for a ‘mistaken omission’ in this case not to isolate a recording of the entire programme subject to Ms Yang’s complaint.
 Nevertheless, the failure to keep this programme has impeded our ability to provide any resolution or determination for the complainant. Additionally, matters occasionally arise where the Authority needs to seek other broadcast material besides the content complained about, for background or for context.
 For these reasons, although the unavailability of broadcasts is not an obstacle we are faced with often, we will consider as part of our review of the Broadcasting Codes, in consultation with broadcasters, whether it is appropriate to make rules for retention of broadcasts. Formal rules that clearly outline our expectations regarding which broadcasts ought to be retained, and for how long, may give greater guidance to all broadcasters in order to prevent this type of situation, and would also give the Authority the ability to impose a sanction where broadcasts are not retained.
 We also noted in this case that it took 26 working days for the broadcaster to initially respond to Ms Yang identifying the issue with the time of broadcast, by which time Ms Yang was out of time to resubmit a valid formal complaint (which must be done within 20 working days of the broadcast).
 Where complainants submit incomplete or imperfect complaints, broadcasters should respond early (within the 20 working days from the date of broadcast) and provide guidance about what information needs to be provided to constitute a formal complaint, so that the complainant has the opportunity to revise and resubmit their complaint within the required timeframe.
Outcome: Declined to determine the complaint
 Ms Yang has raised legitimate concerns about the seriousness, in the current COVID-19 climate, of a radio host essentially undermining the importance of the contact-tracing system and suggesting it may be improperly exploited.
 We have made best efforts in this case to provide some resolution for the complainant, first by trying to obtain the relevant broadcast material, and second by seeking the observations of those who would have heard it. We considered whether we might be able to determine the complaint based on the complainant’s and the programme hosts’ recollections of the broadcast content.
 However, a determination of whether the good taste and decency standard was breached is heavily dependent on the context in which the content occurred, as well as the wider context of the broadcast. It necessarily requires careful consideration not only of the exact words used in the broadcast, but also the overall tone of the programme and any relevant contextual factors.4
 As we have been unable to listen to the broadcast complained about or consider these elements, we have concluded that ‘in all the circumstances’ we must decline to determine the complaint under section 11(b) of the Broadcasting Act 1989.5
 Our efforts have nevertheless provided further information that has enabled the broadcaster to address the complaint. While NZME said Mr Kirby did not recall making a comment of the nature complained about, his guest co-host’s recollection of the broadcast (which we sought from the broadcaster) more closely aligned with the complainant’s. On that basis NZME subsequently advised the Authority that:
Notwithstanding the rather more robust nature of Hauraki audiences and audience expectations of this station… given the errors in this matter [with respect to not retaining the broadcast] – and the importance of contact tracing to our communities at this time – we have decided to uphold Ms Yang’s complaint. The host will be spoken to regarding the tone and nature of the statements.
 In terms of the broadcaster’s proposed action in response, we urge NZME to be mindful of Mr Kirby’s history with this Authority. Two previous complaints about Mr Kirby’s conduct on air were upheld by this Authority as serious breaches of broadcasting standards. Although those cases concerned different radio stations under the responsibility of a different broadcaster, we highlight that this potential pattern of behaviour and disregard for the standards is likely to be a relevant consideration in the event of a future complaint.
For the above reasons the Authority declines to determine the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
14 October 2020
The correspondence listed below was received and considered by the Authority when it determined this complaint.
1 Helena Yang’s formal complaint – 20 May 2020
2 NZME’s response to the complaint and further correspondence with Ms Yang regarding the complaint and time of broadcast, including her intention to refer the matter to the Authority – 26 June 2020
3 Ms Yang’s referral to the Authority – 22 July 2020
4 Authority’s correspondence with Ms Yang seeking further detail about the time of broadcast – 27 July 2020
5 Authority’s correspondence with NZME regarding the complaint and requesting a recording of the broadcast – 28-29 July 2020
6 Ms Yang’s comments on Authority’s proposed steps to progress complaint –
4 August 2020
7 NZME’s further comments, including from Mr Kirby – 14 August 2020
8 Ms Yang’s response to NZME’s comments – 16 August 2020
9 NZME’s response to Authority’s request for comments from guest host –
31 August 2020
10 Ms Yang’s confirmation of no further comments – 2 September 2020
1 Section 6(1), Broadcasting Act 1989
2 Section 30(4), Broadcasting Act 1989
3 Broadcasting Standards in New Zealand Codebook, page 5
4 See also Clarke and Others and RadioWorks Ltd, Decision No. 2010-068 at - where the Authority declined to determine complaints on the basis the broadcast was unavailable.
5 Section 11(b) states that ‘The Authority may decline to determine a complaint referred to it… if it considers… that, in all the circumstances of the complaint, it should not be determined by the Authority.’
6 See JN and MediaWorks Radio Ltd, Decision No. 2017-053 and Ihaia & IM and MediaWorks Radio Ltd, Decision No. 2015-074