Devlin Found To Have Breached BSA
Dated: 11 September 2006
Decision No: 2006-030
MENTAL HEALTH COMMISSION
CANWEST RADIOWORKS LTD
broadcasting as Radio Live
Joanne Morris, Chair
Complaint under section 8(1)(a) of the Broadcasting Act 1989
Radio Live – Devlin Live – comments by host about proposal to open a house for psychiatric patients in a Wellington suburb without telling residents – criticised the Mental Health Commission – said decision was “as loco and loopy as the people they’re trying to place in the community” – allegedly in breach of good taste and decency, unbalanced, inaccurate, unfair, and in breach of social responsibility
Principle 1 (good taste
and decency) – subsumed under Principles 5 and
Principle 4 (balance) – subsumed under Principles 5, 6 and 7
Principle 5 (fairness) – unfairly criticised Mental Health Commission for a decision it did not make – not unfair to mental health patients – would not have caused panic or alarm – one aspect upheld
Principle 6 (accuracy) – accuracy standard applied to talkback host’s remarks – inaccurately attributed responsibility for acute facility to Mental Health Commission – should have broadcast correction – upheld
Principle 7 (social responsibility) and guideline 7a (denigration) – high threshold for denigration not met – host entitled to refer to factual material – not upheld
This headnote does not form part of the decision.
 At approximately 7.30am on 15 February 2006, the host of the Radio Live breakfast show Devlin Live,Martin Devlin, commented on the proposal to open an acute house for psychiatric patients in a Wellington suburb. He said:
This Mental Health Commission thing has been disturbing me. This decision in Wellington to open the acute house for people with mental illness in Whitby without telling the residents, I mean this is nuts, isn’t it? This is as loco and loopy as the people they’re trying to place in the community.
 The host gave several high profile examples of psychiatric patients who had committed violent crimes, and said that after such incidents “your management of places like the Mental Health Commission, all you do is hide behind the decision you made and quote privacy laws”. He went on to comment about the proposed unit, saying:
…and you try and keep it secret because you know what the reaction’s going to be. I mean this is so selfish and devious by the people at the Mental Health Commission in Wellington, isn’t it? It’s so goddamn selfish. When they are civil servants employed by the people in the very communities that they’re placing these mental patients in.
 On behalf of the Mental Health Commission, Ruth Harrison (the Chair Commissioner) made a formal complaint about the programme to CanWest RadioWorks Ltd, the broadcaster. She argued that the broadcast breached Principles 1, 4, 5, 6 and 7 of the Radio Code.
 Ms Harrison stated that the host’s comment that the Mental Health Commission was providing the service was inaccurate. She said that the service was actually being supplied by the Capital and Coast District Health Board. This had been pointed out in an email to Radio Live on the day of the broadcast, she said.
 The complainant contended that the host’s comment that the service was “as loco and loopy as the people they’re trying to place in the community” breached standards of good taste and decency, social responsibility (guideline 7a), fairness and accuracy.
 Ms Harrison stated that the host had quoted unrelated cases and implied that the people in the psychiatric unit were at risk of committing a violent crime. She wrote:
Research shows that people with experience of mental illness are more likely to be the victims of violence than the perpetrators. This scaremongering was socially irresponsible (guideline 7a). It should be pointed out that none of the people in the house in question had committed a crime. This comment also breached the fairness principle (guideline 5c).
 The complainant pointed out that the Mental Health Commission’s communications manager had offered to speak on Radio Live in order to “dispel the myths that Mr Devlin was perpetrating”, but had not received a response.
 CanWest assessed the complaint under Principles 1, 4, 5, 6 and 7 and guidelines 5c and 7a of the Radio Code of Broadcasting Practice, which provide:
In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.
In programmes and their presentation, broadcasters are required to maintain standards consistent 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.
In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.
Programmes shall not be presented in such a way as to cause panic, or unwarranted alarm or undue distress.
In the preparation and presentation of news and current affairs programmes, broadcasters are required to be truthful and accurate on points of fact.
In programmes and their presentation, broadcasters are required to be socially responsible.
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.
Broadcaster's Response to the Complainant
 With respect to Principle 1 (good taste and decency), CanWest noted that it was required to take into consideration the context of the broadcast. It considered the relevant contextual factors to be the target audience of adult listeners, the robust and opinionated nature of talkback radio, and the fact that no obscene language was used.
 CanWest considered that the comments did not breach Principle 1. It contended that the host’s tone had suggested that he was being “deliberately outrageous and provocative”, and that his comments were not intended to be taken seriously. Rather, they were spoken to emphasise his general stance on the apparent lack of community consultation on this issue.
 Turning to consider Principles 5 (fairness) and 7 (social responsibility) – in particular guideline 7a which relates to denigration – CanWest did not consider that it was socially irresponsible or unfair for the host to criticise the Mental Health Commission’s position in relation to the provision of the community facility. It noted that the Commission had released a media statement supporting the opening of the facility. CanWest contended that the host’s remarks were clearly his opinion or comment, expressed in a manner typical of this host who was “well known for his strong views and use of colloquial language”.
 The broadcaster maintained that, even if the item was not a genuine expression of comment or opinion within guideline 7a, the comments about the mentally ill did not cross the line into vitriol or hate speech. It said that “the sting” of the host’s critical comment had been about the secrecy surrounding the opening of the facility, not the mentally ill.
 CanWest also disagreed that the host’s comments would have alarmed the adult audience of Radio Live (guideline 5c). It said:
They would recognise the comments as being of a general nature designed to highlight the secrecy aspect of the issue and the reason why members of the community were concerned.
 Turning to Principle 4 (balance), CanWest stated that the host’s comments had been designed to elicit responses from listeners on the issue. This was “classic talk show commentary”, the very nature of which was to “express strong views to engender response from listeners”, it said. In the circumstances of the programme, CanWest found that the broadcaster provided a reasonable opportunity for listeners to respond by phoning in with their views. It considered that Principle 4 was not breached.
 The broadcaster also maintained that Principle 6 (accuracy) was not breached. It wrote:
Radio Live provides news and current affairs, comment and talk – not all aspects of every programme are required to adhere to the requirements of this Principle. This comment from the host was not the presentation of news and current affairs but clearly commentary and opinion.
 CanWest accepted that the proposed facility was the responsibility of the Capital and Coast District Health Board, but it observed that the Mental Health Commission had “entered the fray” by “applaud[ing]” the opening of the facility and endorsing the secrecy surrounding the facility’s operation. In those circumstances, the broadcaster found that the host’s comments did not breach Principle 6.
Referral to the Authority
 Dissatisfied with CanWest’s response, Ms Harrison referred the Mental Health Commission’s complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. She reiterated the Commission’s view that the programme breached Principles 1, 4, 5, 6 and 7 of the Radio Code.
 The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
Principle 6 (accuracy)
 Principle 6 states that broadcasters must be truthful and accurate on points of fact in “news and current affairs programmes”. CanWest has argued that the host’s remarks were not subject to the accuracy standard because they were “clearly commentary and opinion”.
 In previous decisions dealing with complaints about comments made on talk radio, the Authority has declined to make a definitive ruling as to whether talk radio is always, or never, “current affairs”. Rather, the Authority has ruled that each complaint will be considered on its own particular circumstances.
 In Decision No. 2005-016, the Authority stated:
The Authority considers that one situation in which a talkback programme amounts to “current affairs” is when a host makes unqualified statements of material fact that set the basis for the discussion.
 The Authority finds that the same principle applies in this case. On this occasion, the host began his comments by attributing the decision to open the acute facility to the Mental Health Commission. He said “this Mental Health Commission thing has been disturbing me. This decision in Wellington to open the acute house…”. These initial statements set the basis for his subsequent criticism of that decision and the organisation itself. In these circumstances, the Authority finds that the host was purporting to make factual statements to which the accuracy standard applies.
 Having determined that the host’s remarks were subject to Principle 6, the Authority turns to consider whether the accuracy standard was breached. It is undisputed that the Capital and Coast District Health Board was the organisation responsible for the acute facility. Because the host made statements of fact in which he attributed the opening of the facility to the Mental Health Commission, the Authority finds that Principle 6 was breached.
 In its response to the complainant, CanWest maintained that the host’s comments were not inaccurate because the Mental Health Commission had released a media statement publicising its support for the facility. The Authority disagrees. It considers that he should have checked who was actually responsible for the acute facility before embarking on a trenchant criticism of that organisation.
 Furthermore, the Authority notes that a representative from the Mental Health Commission contacted the broadcaster on the day of the broadcast and advised that the Commission did not provide any mental health services. In the Authority’s view, and particularly in light of the disparaging nature of the host’s remarks, it would have been appropriate for CanWest to broadcast a correction at that time, so as to act consistently with guideline 6b.
 Accordingly, the Authority upholds the Principle 6 complaint.
 The complainant also argued that the remark “as loco and loopy as the people they’re trying to place in the community” breached the accuracy standard. The Authority finds that this matter is more appropriately addressed under Principles 5 (fairness) and 7 (social responsibility) below.
Principle 5 (fairness)
 The host made several comments criticising the Mental Health Commission. He attributed the decision to open the acute facility to the Commission, and said that it was “as loco and loopy as the people they’re trying to place in the community”. He also called the people at the Commission “drongos” and said “this is so selfish and devious by the people at the Mental Health Commission in Wellington, isn’t it? It’s so goddamn selfish”.
 While the host was entitled to advance his opinion about the matter, and to make trenchant criticism of the decisions involved,the Authority considers that his specific criticism of the Mental Health Commission was unfair given that it was based upon an untrue assertion that the Commission was responsible. It upholds this part of the Principle 5 complaint.
 The Authority turns to consider whether the “loco and loopy” remark was unfair to mental health patients. The Authority finds that the comment, while derogatory, did not amount to the level of abuse that in the robust context of talk radio constitutes a breach of the fairness standard.
 The complainant also contended that the host’s comments about high profile crimes committed by mental health patients would have caused “panic, or unwarranted alarm or undue distress” under guideline 5c. In the Authority’s view, the host was using these cases as examples of why he felt community consultation was important. It does not consider that his remarks would have caused panic or alarm as envisaged by guideline 5c.
 Accordingly, the Authority upholds one aspect of the fairness complaint.
Principle 7 (social responsibility) and guideline 7a (denigration)
 The complainant argued that the host’s description of mental health patients as “loco and loopy” breached guideline 7a to Principle 7. The term “denigration” has consistently been defined by the Authority as meaning blackening the reputation of a class of people (see for example decisions 1994-062 and 2004-129). It is also well-established that in light of the requirements of the Bill of Rights Act, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration in contravention of the standards (see for example Decision No. 2002-152).
 In this case, the Authority finds that the threshold for denigration was not met. While the host used colourful language in a provocative way, his remark would not have led to the blackening of the reputation of mentally ill people. It does not uphold this aspect of the complaint.
 The complainant also argued that the host’s comments about high profile violent crimes committed by certain mental health patients breached guideline 7a. The Authority notes that guideline 7a is not intended to prevent the broadcast of material which is “factual”. The Authority finds that the host’s remarks fall within this category, because he was referring to actual events. Therefore, the Authority finds that Principle 7 was not breached in this respect.
 The Authority does not uphold the Principle 7 complaint.
Principle 1 (good taste and decency)
 In addition to complaining that the “loco and loopy” remark breached Principles 5, 6 and 7, the complainant also argued that it breached standards of good taste and decency. Although the complainant has not elaborated on this point, it is clear from the correspondence that the complainant was concerned that this was an offensive way of referring to mental health patients. The Authority considers that this concern has already been dealt with in its consideration of whether the remark was unfair to, or denigrated, mental health patients. Accordingly, it subsumes this part of the complaint into its consideration of Principles 5 and 7.
Principle 4 (balance)
 The complainant also contended that Principle 4 (balance) was breached, but did not offer any specific reasons for the alleged breach. The Authority considers that the complainant’s main concern is that the presenter’s comments were inaccurate and unfair, as opposed to being concerned that significant perspectives were omitted. In this respect, the Authority is of the view that the complainant’s concerns have already been addressed in its consideration of Principles 5, 6 and 7 above. Accordingly, it subsumes the balance complaint into its consideration of these other standards.
Bill of Rights
[39 ]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 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.
For the above reasons the Authority upholds the complaint that the broadcast by CanWest RadioWorks Ltd of comments on Devlin Live on 15 February 2006 breached Principles 5 and 6 of the Radio Code of Broadcasting Practice. It declines to uphold the other aspects of the complaint.
 Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties. Both parties submitted that no order should be made on this occasion and, in these circumstances, the Authority concludes that an order is not appropriate.
Signed for and on behalf of the Authority
11 September 2006
The following correspondence was received and considered by the Authority when it determined this complaint:
Mental Health Commission’s formal complaint – 22 February 2006
CanWest RadioWorks’ decision on the formal complaint – 29 March 2006
Mental Health Commission’s referral to the Authority – 18 April 2006
CanWest’s response to the Authority – 27 April 2006
CanWest’s submissions on orders – 21 July 2006
Mental Health Commission’s submissions on orders – 4 August 2006