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By Steven | January 22, 2009
In this extraordinary decision, issued this month, the BSA has effectively re-written the Broadcasting Act and exempted talkback radio from the balance standard. It also seems to largely give talkback shows a pass when it comes to fairness complaints.
The BSA had already established a rule that talkback hosts could be inaccurate pretty much whenever they liked. Now they can be unfair and unbalanced too.The upshot: a talkback host can launch a three-hour diatribe against a public figure and on an issue of public importance, basing the criticisms on botched facts, and encouraging callers to join the chorus. The talkback broadcaster doesn’t have to seek or broadcast any other sides to the debate, the way all other broadcasters have to. It doesn’t have to offer those excoriated an opportunity to defend themselves, even if they call in a couple of days later wanting to put the record straight.
I think this decision is a shocker. It is poorly reasoned, contains at least two jaw-dropping errors of law, reverses the BSA’s previous approaches without saying so, flies in the face of the wording and policy of the Radio Code and the Broadcasting Act, and leaves talkback listeners at the mercy of unscrupulous talkback hosts fixated on ratings and contemptuous of ethics.
Disclosure: I argued this case, so take all this with a grain of salt if you like. (These are my views, not necessarily the Commissioner’s, though she has kindly given me permission to publish this post.)
Some background: a talkback host attacks the Children’s Commissioner
One Friday last August Michael Laws broadcast a three-hour talkback show almost wholly devoted to an attack on a report into child poverty commissioned by Barnardos and Children’s Commissioner Dr Cindy Kiro. (In fact, this is just the latest attack in Laws’ campaign against the Commissioner. Earlier last year, RadioLive broadcast an apology to her for Michael Laws’ string of botches and personal abuse).
Still, if you’d tuned in that Friday, you would have heard that the child poverty research was crap, subversive, lazy and a cop out and “mostly consists of giving beneficiaries more money”. The real problem is “useless parents” and “sick” Maori and Pacific Island culture. Dr Kiro – of “Maori extraction” – was an “apologist for dropkick mums and deadbeat dads” and the Maori community’s failures. Dr Kiro was described as incompetent, biased toward her race, out of touch, wasteful, deluded, lazy and politically motivated. There was much, much more in that vein. Three hours of it.
I don’t believe that Michael Laws had actually read the report. If he had, he would have seen that its main conclusion was that the best pathway out of poverty was helping parents into full-time paid work (many of its recommendations were aimed at that goal). He would have seen that it recommended direct help for children, such as improving immunisation, expanding free medical visits for children, and reading recovery programmes. He would also have seen that it was written by experienced and well-qualified researchers who pointed to evidence that low benefit levels were compromising the health, nutrition and educational and social development of young children, particularly in solo parent families. If Laws had done a jot more research, he would have found that Dr Kiro frequently speaks out against bad parenting, and often calls on the Maori community to take greater responsibility for their problems (while noting that Maori aren’t the sole culprits). But Michael Laws isn’t one to let facts get in the way of a good tirade.
“The talkback show that wouldn’t let me talk back”
RadioLive alerted the Children’s Commissioner’s office to the programme about half an hour into the programme. But Dr Kiro was giving other interviews about the report. Besides, she didn’t know what criticisms had already been made. She decided to wait until she could ascertain what exactly had been said and respond to it after the weekend.
Dr Kiro called up the station the next Tuesday morning and asked to be given a chance to answer the criticisms. What did Michael Laws do? This is the same Michael Laws who has (inaccurately) ridiculed Dr Kiro for failing to come on his show. It’s the same Michael Laws who promised his listeners he’d be revisiting the child poverty issue again. You guessed it – he refused to let her come on air. “I feel like it’s a talkback show that wouldn’t let me talk back,” Dr Kiro told me.
The producer said the show had moved on to other topics that day, and she’d had her chance on Friday. Dr Kiro offered to appear in a show later that week. They refused that, too.
A free speech issue
Michael Laws believes this case is about free speech. So do I. At this point in the proceedings, whose speech looks as if it’s being suppressed?
What do you expect from talkback?
Fair to ask: isn’t this par for the course in talkbackland? Isn’t it what everyone really expects? Don’t listeners know what they’re getting? Doesn’t there have to be some flexibility in the broadcasting codes to accommodate talkback?
Yes. And the BSA has always applied the radio code less rigorously to talkback. It would be absurd if the broadcaster were accountable for every factual mistake by a caller, or had to give a right of reply to everyone who copped a bit of flak. The code has never been interpreted that way, and rightly so.
But there must be limits. The balance standard and the fairness requirement in the Broadcasting Act don’t contain exceptions for talkback. The policy of the Broadcasting Act is that broadcasters should treat people fairly and should give listeners exposure to a range of views when important issues are being discussed. Here the issue was child poverty. It’s plainly publicly important. The criticisms were severe. They were largely wrong. They went on for hours. The Commissioner actually called in a requested the opportunity to provide a response. If ever balance or fairness were to be applied to talkback, it’s here.
The BSA turned down the Commissioner’s complaint. The BSA has now completely closed off the possibility of a successful talkback balance complaint and severely restricted talkback’s obligations of fairness.
Jaw-dropping BSA error number one
Under the Broadcasting Act, broadcasters must act consistently 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.
See if you can guess how the BSA has interpreted this statutory provision in order to conclude that it doesn’t apply to Dr Kiro’s complaint. Go on, stretch your imagination.
Did the BSA say “The station did make reasonable efforts to include Dr Kiro’s view?” The show did contact her, after all. No, that’s not what the BSA said. That reasoning would have had a sliver of merit. Not much of a sliver: it’s hardly reasonable to expect someone to drop everything else they’re doing and answer criticisms that they haven’t heard.
But the BSA didn’t talk about the broadcaster’s reasonable efforts. So think of something else. Something really implausible. Something like: oh, in a three-hour talkback programme devoted to a particular issue that issue isn’t being “discussed”.
That’s really what they said.
An issue is only being “discussed”, said the BSA, when a broadcaster “purports to present a serious and even-handed examination of an issue”. That’s not the case where the show is “unambiguously opinion-based, as most talkback is, and in which the host’s role is to elicit audience reaction by taking a strong position on a topical issue”. Of course, on this definition, almost no talkback will ever contain a “discussion”, so the balance standard will never apply. (To be fair to the BSA, they have applied this approach to some talkback comments in the past. I couldn’t believe they’d apply it to an entire programme about an issue. I was wrong).
Nowhere does the BSA explain why it needs to interpret the word “discussed” so narrowly. Remember, this is a word in an Act of Parliament we’re talking about. The words are supposed to be interpreted in light of their natural meanings and the purpose of the Act. I have taught statutory interpretation. I can’t see any tenable argument that Laws wasn’t “discussing” a controversial issue.
What about the Bill of Rights?
Is this interpretation forced on the BSA by the Bill of Rights Act? After all, it contains a direction that laws should be interpreted consistently with freedom of expression where possible. Well, the BSA doesn’t so much as mention the Bill of Rights, though it was raised in argument. If this was part of its thinking, you’d think the BSA might have said so.
And you’d also think that they’d have applied the law. R v Hansen would have required them to explain why the ordinary meaning of “discussed” would not have been demonstrably justified here. They would also have had to confront my argument (based on overseas cases and scholarship) that a balance requirement is a double-edged sword. Certainly, balance restricts broadcasters’ freedom of speech, by compelling them to publish something they wouldn’t otherwise. But it also enhances freedom of speech. It serves the speech of the person being attacked. It serves the listeners’ interests in hearing the other side. It serves democratic debate more generally. It promotes the “marketplace of ideas” that underpins free speech.
That means the issue is complicated. It’s not just about RadioWorks’ free speech rights.
What else is wrong with the balance conclusion?
Do you need anything else? Oh well. It’s also inconsistent with other BSA decisions that say balance can apply to talkback. (The BSA doesn’t discuss the reasons for its u-turn).
It’s inconsistent with the guidelines Radio Code, which say that talkback “may be subject to a lesser requirement” for balance, but not none at all. (The BSA doesn’t discuss the guidelines.) Its reasoning is illogical. The BSA says that balance
is not intended to prevent the kind of discussion for which talkback radio is well known – free-ranging, robust, spirited, and strongly opinionated.
It’s not clear where the BSA gets its ideas about the intent behind the balance standard. Not from the words of the statute, evidently. Anyway, it’s hard to see how allowing a person who is subject to serious and protracted criticism concerning an important issue to go head-to-head with the talkback host would involve any sacrifice of robust, spirited or opinionated talkback. “Free-ranging” seems to be code for “the broadcaster decides what topics to pursue and when”. As far as I know, this notion has never prevented the balance standard from being applied to other programmes with set formats. That is, if they fail to provide balance in one programme, the BSA may force them to do so later, even though they’ve moved on to other matters. Of all the types of programming I can think of, talkback is far and away the most compatible with this sort of right of reply. They have acres of timetable to fill. They rove from topic to topic, often within the same show. Their very purpose is supposed to be lively debate.
The BSA’s reasoning on balance is, I think, plainly an error of law.
Jaw-dropping BSA error number two
The BSA also seems to have revisited its approach to fairness, at least when public figures complain about a talkback programme.The fairness standard is about how people are treated, rather than about serving the needs of listeners. It’s rather an amorphous standard, but over the years the BSA’s approach has become pretty clear. In particular, the BSA generally regards it as unfair:
- to seriously criticise someone without giving them a right to respond.
- to broadcast serious inaccuracies about someone.
- to broadcast personal abuse.
Well, rules 1 and 2 no longer apply to talkback, it seems. Dr Kiro raised both. She described the criticism. She pointed out the volley of inaccuracies. The BSA did not address those arguments at all, concluding only that:As an appointed official carrying out a public function, Dr Kiro’s work and her conduct were appropriately the subject of scrutiny, comment and criticism. The question for the Authority is whether that criticism overstepped the boundaries of fairness, that is, whether it strayed into abusive personal territory. The Authority is not persuaded that this was the case. Actually, Dr Kiro never said she wasn’t game for criticism and she did not try to persuade the BSA that Laws was abusive.
More importantly, under this new approach to fairness in talkback, broadcasters can now say whatever they like about public figures. As long as they don’t descend into personal abuse, it will not be unfair. The BSA seems to be laying down a general rule here (“the question for the Authority”). This is a significant decision. Once again, we could have expected more than three paragraphs of reasoning. We might have expected the BSA to address the arguments that were raised. We might have expected the BSA to explain why it was changing its approach. But no.
I think this new approach is plainly wrong as a matter of law, and at the very least failed to grapple with a range of relevant considerations.
Have I lost my objectivity?
Fair question. But I’ve spoken to three other lawyers with expertise in this area, and all agree this decision sucks. I’d be very interested to hear from any lawyer with a different view.
An appeal?
Complainants are entitled to appeal to the High Court against BSA decisions.
The BSA has been found at fault in a string of appeals last year. I think this would have been another.
However, the Commissioner has chosen not to bring an appeal. So the decision stands.
So what standards of accuracy, fairness and balance do apply on talkback?
Not many. You can complain about personal abuse. You could complain if there is an inaccuracy if a host makes “unqualified statements of material fact that set the basis for discussion”. And you may have a right to be put on-air if you become aware that you’re being seriously criticised and you phone in immediately. Which of course means you’re out of luck if (a) you don’t hear about it, (b) you don’t hear about it in time to make sense of the criticisms that have been made, or (c) you’re busy with something else at the time.
A victory for free speech?
RadioWorks has called this decision “a real fillip for free speech”. Michael Laws accused me of hypocrisy for teaching freedom of expression but trying to suppress his.
I asked to go on air to argue the toss about that. He refused.
Topics: Broadcasting Standards Authority, Media ethics, NZ Bill of Rights Act | Comments Off on Talkback officially a balance-free zone
