[Original decision]

Batchelor and RadioWorks Ltd - 2012-058

Dated: 25 September 2012

Number: 2012-058

Complainant:

• Karen Batchelor of Auckland

Channel: Radio Live

Broadcaster: RadioWorks Ltd

Members

• Peter Radich (Chair)

• Te Raumawhitu Kupenga

• Leigh Pearson

• Mary Anne Shanahan

________________________________________

Complaint under sections 8(1B)(b)(i) and 8(1B)(b)(ii) of the Broadcasting Act 1989

Michael Laws Talkback – Mr Laws interviewed the complainant, Karen Batchelor, a spokesperson for the American Pit Bull Terrier Association – Mr Laws accused Ms Batchelor of misquoting statistics and making untrue statements – Mr Laws made comments such as “you’re just as bad as your dogs” and, “can you wear a muzzle” – allegedly in breach of good taste and decency, accuracy, fairness, discrimination and denigration, and responsible programming standards – broadcaster upheld part of the Standard 6 complaint – action taken allegedly insufficient

Findings

Standard 6 (fairness) and Action Taken – Mr Laws took an overly aggressive approach and continuously interrupted the complainant – he made comments that were personally abusive and accused the complainant of lying – overall complainant was treated unfairly – serious breach of fairness standard – action taken by broadcaster was insufficient – upheld

Standard 5 (accuracy) – host did not make unqualified statements of fact (guideline 5b) – programme was not inaccurate or misleading – not upheld

Order

Section 13(1)(a) – broadcast statement

This headnote does not form part of the decision.

Introduction

[1] During Michael Laws Talkback, broadcast on Radio Live on 19 March 2012, the host interviewed Karen Batchelor, a spokesperson for the American Pit Bull Terrier Association. Mr Laws accused Ms Batchelor of misquoting dog bite statistics provided by the Accident Compensation Corporation (ACC), and challenged her contention that no Pit Bull had caused death in New Zealand. Mr Laws made derogatory comments, for example, “you’re just as bad as your dogs, aren’t you?”, and “can you wear a muzzle”.

[2] Karen Batchelor made a formal complaint to RadioWorks Ltd, the broadcaster, alleging that the interview was a “dishonest ambush and the listening public were deliberately deceived” by the information presented, and allegations made, by the host. She argued that Mr Laws was “abusive” towards her and his listeners.

[3] RadioWorks upheld two aspects of the complaint under Standard 6 (fairness). First, it accepted that Ms Batchelor correctly referred to the ACC statistics and Mr Laws was therefore wrong to accuse her of misquoting the figures. Second, it found that Mr Laws’ comment, “can you wear a muzzle” amounted to unacceptable personal abuse, despite the robust and opinionated nature of talkback radio. The broadcaster apologised to the complainant and offered her the opportunity to be interviewed by Mr Laws and to state her views uninterrupted. It said that it was working with Radio Live to address the breach and that the decision had been discussed with the host and the production team.

[4] RadioWorks declined to uphold the other aspects of the Standard 6 complaint, and complaints under Standards 1 (good taste and decency), 5 (accuracy), 7 (discrimination and denigration), and 8 (responsible programming).

[5] We consider that Standards 5 and 6 are most relevant to the complainant’s concerns, and we have limited our determination accordingly. Ms Batchelor also raised Standards 1, 7 and 8. These are not applicable because:

• the programme content would not have offended or distressed most listeners (Standard 1)

• the programme did not encourage the denigration of, or discrimination against, any section of the community (Standard 7)

• the programme was not socially irresponsible (Standard 8).

[6] The issue therefore is whether the action taken by the broadcaster in relation to upholding part of the Standard 6 complaint was sufficient, and whether the programme otherwise breached Standards 5 and 6 of the Radio Code of Broadcasting Practice.

[7] The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the programme and freedom of expression

[8] The right to freedom of expression is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. We acknowledge the importance of the values underlying that right. In determining an alleged breach of broadcasting standards, we assess the importance of the particular speech and the extent to which the values of freedom of expression are engaged, and weigh this against the level of harm in terms of the underlying objectives of the relevant broadcasting standards.

[9] The interview subject to complaint was conducted by Michael Laws. The Authority has consistently acknowledged that Mr Laws is well-known for his controversial and provocative presentation style, and that talkback radio is a robust and opinionated environment meaning that audience expectations are often more lenient than for other genres. The context of the interview was a recent spate of dog attacks, and the often expressed view that Pit Bulls are an inherently aggressive and dangerous dog breed.

[10] Mr Laws introduced the interview by reference to a recent court case where a man was sentenced for his Pit Bull attacking a dog control officer. He stated:

A District Court judge from New Plymouth [asked] the question that I think a lot of New Zealanders ask: “Why on earth would you want a Pit Bull… with the reputation that it has and with the damage it can inflict?”... He was roundly attacked for his views – the judge – by Karen Batchelor, who is a spokesperson for the Pit Bull Terrier Association, and she joins us on the line now.

[11] The focus of the interview (that is, Pit Bulls and whether they are an inherently dangerous dog breed) was of importance in our society in terms of its relevance to public safety and animal welfare. We consider that the broadcast was of public interest, which the courts have suggested is an indicator that speech is socially important.1

[12] We therefore think we should be cautious about interfering with the programme’s broadcast and reception.

Was the action taken by the broadcaster in relation to fairness sufficient, and was Ms Batchelor treated unfairly in any other respect?

[13] Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[14] One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.2

[15] Ms Batchelor argued that she was treated unfairly because:

• Mr Laws’ style was “combative” and “disrespectful”

• he made comments that were offensive and rude, for example he called her “aggressive” and commented “can you wear a muzzle”

• he constantly interrupted her so that she was unable to answer his questions with reference to facts and studies to support her statements

• he wrongly accused her of lying when she quoted ACC statistics, and said that no Pit Bull had caused death in New Zealand.

[16] As noted above at paragraph [3], RadioWorks upheld two aspects of the fairness complaint. First it found that Mr Laws wrongly accused Ms Batchelor of misquoting ACC statistics. Second, it considered that Mr Laws’ comment, “can you wear a muzzle” amounted to personal abuse.

[17] In determining whether the interview and Mr Laws’ treatment of Ms Batchelor was unfair, we have taken a broad approach and considered the broadcast in its entirety, with regard to the likely harm to Ms Batchelor in terms of the underlying objectives of Standard 6.

[18] For the reasons expressed below, we find that Mr Laws’ behaviour and comments were bullying and abusive, to the extent that the broadcast overall was unfair. The action taken by RadioWorks in upholding only part of the Standard 6 complaint was therefore insufficient.

[19] From the beginning of the interview, Mr Laws took an overly aggressive approach. He continuously interrupted the complainant, and made comments that were bullying, abusive and demeaning. For example, he said:

• “…listen, you’re as aggressive as the dogs that you own, aren’t you?”

• “You’re as bad as your dog, aren’t you?”

• “I think you understand the English language so please understand it again…”

• “Can you wear a muzzle?”

• “…you are behaving in an abominable way”

• “Do you know Karen, I’m sorry, I’d like to carry on this interview, but you just remind me… too much of your dogs”

• “… you just remind me of your dogs, and that is… that you refuse to face facts...”

• “you obviously are a completely irrational woman”.

[20] The Authority has previously distinguished between criticism directed at a person in their professional or public capacity, and criticism that is essentially personal. 3 The question is whether the criticism overstepped the boundaries of fairness, that is, whether it strayed into “abusively personal territory”. In our view, the cumulative effect of Mr Laws’ comments, and in particular his repeated comparison of Ms Batchelor with her dogs, amounted to a sustained and personal attack on the complainant in a manner that was unfair.

[21] In addition to the above comments, which were personally abusive, Mr Laws accused Ms Batchelor of misquoting ACC statistics and of lying when she said that no Pit Bull had caused death in New Zealand. During the interview, Mr Laws challenged Ms Batchelor to “use stats that are relevant to New Zealand”. She responded:

Now you can talk it up and say that we’re having a massive increase in dog attacks in this country and it’s costing us millions and all the rest of it but that’s not true. The statistics that are being reported cover all dog incidents, including people who trip over their dog and break their arm…

I’ve got the actual dog bite stats from 2006 to 2011, and in 2006, 66 people were admitted to hospital due to being bitten by a dog. In 2011 – 16. Where’s the massive increase?

[22] In response, Mr Laws made the following comments:

• “…you’re misquoting the statistic dreadfully”

• “…you are missing a zero”

• “…that’s not true”

• “I am telling you that you are telling lies…”

• “I’ll give you the benefit of the doubt, and suggest to you that [ACC] made a mistake, but that’s certainly not the figures that I’ve got in front of me…”

[23] RadioWorks upheld this part of the complaint on the basis Ms Batchelor was correct. However, in its decision it stated:

[T]he announcer and yourself were talking at cross purposes for a lengthy amount of time and as a result neither one of you was incorrect [about the ACC statistics]. While the announcer did not quote any statistics during the interview, he said that dog attacks (generally) were on the increase and you were discussing a separate class of dog bite statistics.

[24] We accept that there was confusion on Mr Laws’ part about the statistics quoted from ACC. In our view, this was a direct result of the way he chose to conduct the interview. Mr Laws failed to properly listen to the complainant and he continuously interrupted her so that she was unable to clearly make her point. Consequently it was unfair for Mr Laws to accuse Ms Batchelor of misquoting the figures, therefore suggesting that she was lying.

[25] Mr Laws also accused Ms Batchelor of making untrue statements when she said that no Pit Bull had caused death in New Zealand. RadioWorks accepted that he was incorrect in this respect.

[26] While talkback radio is a robust forum, there are boundaries that cannot be crossed; it is not a standards-free zone, and there is an expectation on the part of the listening public that proper standards will be maintained.4 Overall, we find that the approach taken by Mr Laws was unfair. He made comments toward Ms Batchelor that were personally abusive, and made unfounded and false accusations which had the effect of discrediting her position on the issue under discussion. While the Authority recognises that a robust interviewing style will not always be unfair, especially where the approach is taken for a legitimate purpose – that is, where pressure is applied in order to obtain a meaningful response – here, there was no justification for the way that Ms Batchelor was treated. She had a legitimate perspective to put forward, but was denied a reasonable opportunity to do so as she was persistently interrupted and talked over, and when she did manage to make points, was accused of lying.

[27] The action taken by RadioWorks, in upholding only a small part of the fairness complaint, apologising to the complainant and offering her the opportunity to be interviewed by Laws again, was inadequate. Taking into account the potential harm to Ms Batchelor’s dignity and reputation as a result of the broadcast, we think that something more was required; a private apology did not correct the position or mitigate the harm caused in terms of how she was perceived by the listening audience.

[28] Giving full weight to the requirements of the New Zealand Bill of Rights Act 1990, and the likely harm to Ms Batchelor in terms of the underlying objectives of Standard 6, we find that upholding the complaint would be a justifiable limit on the right to freedom of expression.

[29] Accordingly, we uphold the complaint that Ms Batchelor was treated unfairly, and that the action taken by the broadcaster was insufficient.

Was the programme inaccurate or misleading?

[30] Standard 5 (accuracy) 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 objective of this standard is to protect audiences from receiving misinformation and thereby being misled.5

[31] Ms Batchelor argued that Mr Laws quoted statistics and facts that were “flagrantly false and misleading”. Specifically, she said that Mr Laws presented inaccurate information that a person died from a Pit Bull attack in New Zealand, and that pig dogs are Pit Bull mixes.

[32] Guideline 5b to Standard 5 states that talkback radio will not usually be subject to the accuracy standard, except where the presenter makes an unqualified statement of fact. This recognises that talkback radio is primarily a forum of comment and opinion, and regular listeners understand that general statements made by hosts and participants should be interpreted with this context in mind.

[33] The comments subject to complaint were made during a vigorous and heated exchange, and in our view, listeners would not have interpreted Mr Laws’ comments as unqualified statements of fact. While he said that it was “seriously untrue” that there had been no deaths in New Zealand from a Pit Bull attack (which we have addressed under fairness above), he readily admitted that he had not “done the research”, and asserted that an “old Māori man… was attacked by the dogs that he purposely trained”, before Ms Batchelor refuted this. He later read feedback from a listener who also disputed Mr Laws’ assertion. Mr Laws did not state as fact that a named person had died from a Pit Bull attack.

[34] The host’s comments about pig dogs being Pit Bull crosses were attributed to his experience and clearly framed as his opinion, for example, he said, “I have talked to plenty of people, Pit Bull owners… who use their dog, or their dog crosses, for pig hunting”.

[35] For these reasons, and taking into account the right to freedom of expression, we decline to uphold the complaint under Standard 5.

For the above reasons the Authority upholds the complaint that the broadcast of Michael Laws Talkback on 19 March 2012 breached Standard 6 of the Radio Code of Broadcasting Practice, and that the action taken by RadioWorks in this respect was insufficient.

[36] Having upheld parts of the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989.

[37] For the reasons outlined in our determination, we consider that the complainant deserves to be publicly vindicated, through a broadcast statement summarising our decision, and acknowledging that she was correct in quoting ACC statistics and that it was unfair for Mr Laws to call her a liar. In addition, the statement should include an apology to Ms Batchelor for the way she was treated. The statement should be broadcast in the same timeslot and on the same day of the week as the original broadcast.

Order

Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders RadioWorks Ltd to broadcast a statement approved by the Authority.

That statement shall:

• be broadcast within one month of the date of this decision

• be broadcast at a time and on a date to be approved by the Authority

• contain a comprehensive summary of the upheld aspects of the Authority’s decision

• contain an apology to the complainant for the unfair treatment of her.

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 of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Peter Radich

Chair

25 September 2012

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1 Karen Batchelor’s formal complaint – 19 March 2012

2 RadioWorks’ response to the complaint – 27June 2012

3 Ms Batchelor’s referral to the Authority – 28 June 2012

4 RadioWorks’ response to the Authority – 28 June 2012

5 Ms Batchelor’s final comment – 13 July 2012

6 RadioWorks’ final comment – 20 July 2012

________________________________________

1See, for example, Tipping J in Hosking v Runting [2003] 3 NZLR 385 (CA).

2Commerce Commission and TVWorks Ltd, Decision No. 2008-014

3Kiro and RadioWorks Ltd , Decision No. 2008-108

4See Blissett and RadioWorks Ltd, Decision No. 2012-006

5Bush and Television New Zealand Ltd, Decision No. 2010-036

ends

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