Steven Price

My book

Media Minefield

Guide to NZ Media Law

Official Information Act

Official Information Act

Bill of Rights Act

Media law resources

Feeds (RSS)

« | Main | »

Talkback officially a balance-free zone

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:

  1. to seriously criticise someone without giving them a right to respond.
  2. to broadcast serious inaccuracies about someone.
  3. 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 | 9 Comments »

9 Responses to “Talkback officially a balance-free zone”

  1. mattb02 Says:
    January 22nd, 2009 at 9:38 pm

    Steven, I might be misreading you, but do you really believe Michael Laws and one radio station has any ability to interfere with either Kiro’s or your right to free speech? The fact that you’re freely publishing that idea and me, a member of the public, is freely reading it minutes later negates your point – no?

    I can’t speak to the quality of the decision under law, but it is hard to fault the basic idea that people do not need to be protected from unbalanced, highly emotive, and untrue rants when the it is straightforward to detect a broadcast with those characteristics, the host has a reputation for that sort of thing, indeed many of his listeners positively expect that from him, and the target is so obviously capable of publicly responding with or without the say-so of the offending broadcaster. You are, I think, far too quick to demand interference with the right to speech unencumbered by rules like balance and fairness.

    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?

    Hell, Steven, certainly not Cindy Kiro’s. One radio station has turned her down for an appearance. Ms Kiro heads a highly visible public body with a public relations budget and any number of avenues for public response before her. I think you seriously misunderstand what free speech is if you think one radio station’s refusal to air her response impinges her right to speech in any way at all. Government imposed rules affecting all public broadcasts, on the other hand, does raise free speech issues. You have it exactly backwards in my opinion.

    Separately, your tone implies that you think the Broadcasting Act’s prescription for balance is both necessary and helpful. I think you’re mistaken. Balance can be achieved, without the force of (quite ambiguous) law, either between broadcasters (or, if and only if they choose, within them) by virtue of demand for the airing of contrary views, or by a body like the BSA (or any body) publicly broadcasting its own statement that it believes Michael Laws got this or that wrong. Like a balance rule, these processes protect the speech rights of Kiro (if you believe that theory), but come with the not inconsiderable benefits of lacking coercion, specifically they do not interfere with speech. As far as I can tell, the main effect of a law insisting on balance, apart from confusing the hell out of every broadcaster, is that it raises demand for the services of people like you, which is pure deadweight loss when substitutes sit there unused and which would leave you free to put your skills to better use.

    My point is not to convince you competition is certainly the answer. It is to ask how you can be so completely certain competition is not the answer as to justify such vague and demonstrably confusing rules like ‘balance’ which, as a blanket rule on all public broadcasting, would trample the right to speech, something some of us actually cherish.

    While I understand your post is mainly on the law, I think it would be helpfully augmented by explaining what you think free speech is, and perhaps addressing the question of whether the desirable properties of a law which insists on balance could be achieved in other ways but without the costs.

  2. mattb02 Says:
    January 22nd, 2009 at 9:46 pm

    Steven, this last line of yours is, for me, a jaw dropper of its own:

    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.

    You’re going for irony, which only works on the theory that Laws’ refusal to put you on his radio station at the time he is on it affects your freedom of expression. Surely you are joking?

  3. Steven Says:
    January 23rd, 2009 at 7:59 am

    A thoughtful post there, Matt, with lots of fair points I think. Let me address a few.

    As you appreciate, my main point is that the BSA botched the law. I’m not sure you disagree. But you do disagree that such a law is useful, and you’re right to note that I think it is.

    I think it’s fair to say that I’m taking some rhetorical licence in complaining that Michael’s decision not to let me on air to debate him impairs my free speech. Yes, I can use other forums.

    But there’s an important sense in which it’s true. As US theorists like Harry Kalven and Owen Fiss have explained, free speech protections were developed to promote individuals’ right to dissent and not be locked away for (say) sedition. But these days, they’re most often invoked by huge media corporations that have the power to set agendas and affect public opinion. In the case of broadcasters, they’re also given licences to use public airwaves. While there are still good reasons to protect their speech, there is also justification to insist that they exercise some responsibility, I think. If you think of freedom of expression as in part being about protecting the quality of public discourse (and even our Bill of Rights Act free speech section talks about the rights of people to receive information) then it doesn’t seem so strange to regard someone who controls a powerful media platform and who shuts down particular significant points of view as raising free speech issues.

    It seems to me that balance requirements are relatively costless restrictions on broadcasters’ speech. They line up with the ethics journalists usually profess. They don’t involve the state setting itself up as an arbiter of truth. They only insist that the broadcaster use some of its time to tell the other side. There are no damages bills.

    What about competition, you ask? Well what about it? Do you see any other media rushing in to correct Laws’ mistakes, either this time or generally? Competition, it seems to me, works to provide some balance to some issues that trigger media interest for whatever reason. But media outlets are usually not very interested in what other media outlets are doing, particularly talkback. And even if they are, any response published there will not necessarily reach the same people as listen to Laws’ show.

    In a competitive market, balance and fairness often don’t get achieved. If there’s one thing I’ve noticed from reading hundreds of BSA and Press Council decisions, it’s that many journalists often leave important things out in their anxiousness to make the story more compelling. I think that can do serious harm to people’s reputations and the public’s understanding of important issues. Those cases demonstrate how important the BSA is.

    You imply that the public will demand better quality journalism, and that Laws’ listeners will know when he’s talking nonsense. But there’s really no evidence of that. Laws is quite plausible. He’s often quite accurate. How are listeners (who presumably like and trust him) to know the difference?

    You seem to suggest there’s a better alternative. I’m all ears. I can’t think of one.

  4. mattb02 Says:
    January 25th, 2009 at 1:26 pm

    Steven, thanks for the response. I’d like to make three points in reply.

    The first is to do with the framing of your argument. You seem convinced that rules that require broadcasters to give a right of reply and adhere to some minimum standards is consistent with free speech. This is I think an awkward position, relying on a definition of free speech that takes account of the speech rights person being spoken about rather than just of the speaker, and an insistence that the same people who hear one side of an argument hear the other. This is an idiosyncratic definition of speech. I would frame your argument differently. I would say the constraints on speech – forcing the right of reply, minimum standards, etc – are in the public interest in the same way as rules against using free speech to incite riot or to slander individuals or to violate copyright. While free speech is important, there are sometimes overriding considerations and talkback radio is appropriately caught by them. That is how I might frame your argument.

    My second point is a slippery slope argument. Rules that regulate the quality of speech are necessarily vague and therefore open to interpretation and abuse by the political and scientific elite. It is not difficult to imagine rules that insist on right of reply and some minimum adherence to truth today will tomorrow be extended to shut down (or at least have a chilling effect on) discourse on other important issues. If Michael Laws is censured for dissenting against a report published by Cindy Kiro, it is then only a short step to having misinformed objections on other major issues like global warming similarly curtailed. “But its misinformed, what’s the value?” one might ask. Well – when is something misinformed? And even if it is misinformed – does it not serve a purpose? Absolutely it does.

    My third point is that the right to yell incorrect, one sided statements to the public at the top of your lungs (aka free expression) is valuable for at least two reasons. First, it is widely recognised as a safety valve that may prevent other more harmful activities. Second, it encourages accountability. A victim of incorrect allegations who responds by reciting the facts will on the whole win the argument. A broadcaster who is repeatedly exposed as getting it wrong will see his reputation suffer, as Laws’ undoubtedly has. And a world in which the broadcast of one-sided, incorrect commentary is permitted does not exist in a vacuum. Listeners, aware of the fact a talkback host can say whatever she wants without having to offer any right of reply, may take what she says with a grain of salt. Or switch to a station that has as policy the right of reply because they think it makes good radio. Or they’ll sign up for news alerts from the BSA that, although stripped of the right to prevent such one sided broadcasts, can nevertheless put out statements that shame the host for inaccuracy. Public figures, knowing they face a media free of restrictions, will adapt to this in their public relationships strategy. And so on. Quality, in other words, can and will emerge from the bottom up (though by no means uniformly) by demand and not by government fiat. Supermarkets, to my knowledge, have no obligation to provide fresh fruit and vegetables. But they do because their customers demand it. They also offer chocolate and beer. Where you shop is your choice, and the two peacefully co-exist. That’s the model I have in mind that emerges when expression is free of paternalism.

    That some of the discourse that is free to emerge in that environment is not to Steven’s or Matt’s or the democratic majority’s tastes must be weighed against the (in my view very substantial) costs and dangers of regulating such discourse.

    If you think of freedom of expression as in part being about protecting the quality of public discourse…

    I absolutely don’t think it is. To the extent rules are written which regulate the quality (however defined) of public discourse, expression is constrained. Now, those rules may well be justified, but such rules are plainly contrary to free expression. To deny that, one must argue as you have done second order effects – that rules on quality or granting rights to respondents or listeners on the whole encourage others to have their say. Awkward, as noted above.

    What about competition, you ask? Well what about it? Do you see any other media rushing in to correct Laws’ mistakes, either this time or generally?

    No I don’t – but I do see the BSA putting out statements that say he got it wrong, I can read about Cindy Kiro’s unhappiness at his slurs, I am reading about this because you blogged on it, and so on. It’s not hard to find. Laws standing in my view, for what it is worth, has declined – I want to listen to people with the integrity to not let emotion get in the way of the facts. But others will disagree with me. It is not my place, nor in my view yours or anyone’s, to disagree with them. Let quality emerge from the bottom up and in response to people’s desire for it.

  5. Steven Says:
    January 27th, 2009 at 4:37 pm

    Okay, Matt, I’ll take those in turn.

    1. Your framing captures a good part of my argument. Mostly, my views on free speech mirror the approach of the Bill of Rights: the right to freedom of expression can only be subject to limitations that are demonstrably justifiable in a free and democratic society. Balance or right-of-reply measures certainly restrict free speech, as I’ve accepted. But balance requirements are less inimical to free speech and therefore more readily justified than many other restrictions (such as censorship), I think.

    2. Slippery slope arguments seem a bit desperate to me. They apply to almost any restriction. Yes, balance requirements can be misapplied or abused, as can everything from defamation laws to speed limits. I don’t see Laws as being “censured for his dissent” but rather required to open up the debate. (The requirement isn’t a huge one, and the BSA has usually handled it in a sensible and flexible way. I’ll be first to criticise them if they get too heavy-handed, but there seems little danger of that.) As for global warming, I think that debate is also important enough that balance requirements for large broadcasters are justified.

    3. I’m happy to supply plenty of other reasons why the right to yell something incorrect should be protected: it plays into the marketplace of ideas, the mechanism that for all its imperfections provides our best hope of choosing the best and most accurate ideas; it may contribute to debate about how we govern ourselves; it at least reflects the self-expression of the speaker. But these rationales (and your ones) are not seriously undermined (and many are in fact positively promoted) by balance requirements. Surely balance encourages accountability and promotes stablity far more than its absence. The same goes for the marketplace of ideas and the promotion of democratic self-government.

    I think your confidence in the market forcing “quality to emerge from the bottom up” seems entirely unsupported by all the evidence. If we accept that inaccurate and unbalanced speech can actually be harmful to reputations and democratic debate, what reason do we have to believe that speech that is more accurate and balanced will thrive and be influential compared with speech that isn’t? How are the public supposed to know when Laws gets it wrong? By checking out the Commissioner’s press releases? By reading someone’s blog? Are you serious?

    But even if some listeners are able to tell when their favourite media is getting things wrong – why assume that the media will respond? If you read books on the economics of the media (eg All the News that’s Fit to Sell, by James T Hamilton, Taking Stock by Randall Bezanson and others, and C Edwin Baker’s Media, Markets and Democracy), you’ll see that the evidence is that the media respond to many other triggers. Foremost among them is the wishes of the advertisers. Sure, advertisers want a big audience, but more importantly, they want a *particular* audience: people with disposable income, and who make spending decisions. Too bad if the rest of the audience falls away. The media also skew towards news and programming that’s cheap to produce, that favours official sources, that focuses on events, that meets the profit demands of owners, that reflects the biases of journalists (leftie on social issues, right-leaning on economics), that will attract viewers and readers on the margins (ie those that may or may not tune in) and that matches what’s being covered by other media. Hey, that’s markets for you: mostly about marginal costs and gains. It’s simplistic to say they deliver what people want, in the media field particularly.

    You say the costs of balance standards are too high. But other restrictions such as defamation and protection of trade secrets are much higher, and I don’t see you railing against them. They cause potentially much greater chill. You haven’t addressed my reasons for thinking that balance standards (particularly in talkback) actually harm free speech relatively little.

  6. ross Says:
    January 29th, 2009 at 12:25 pm

    Balance is certainly an important aspect of broadcasting standards. But there are a couple of issues. Firstly, comparing quality journalism with talkback radio is like comparing champagne with prune juice. I think we expect lower standards from talkback. I could argue that talkback is not a lot different from blogging. You can rant and rave on a blog but the subject of your rant is not necessarily entitled to post a reply. That is surely at the whim or discretion of the blog owner. Blogs of course are not subject to the Act. Maybe they should be.

    Secondly, even when the media breach the balance requirement of the Act, there will not necessarily be any punishment. The breach has to be ruled unanimous, which is an anomaly in my opinion. A breach is a breach whether the decision is unanimous or not. In addition, the print media are subject to the Press Council, a paper tiger which cannot dish out punishment.

    I agree that there should be more balance but I also think there should be some punishment when it’s not achieved. At the moment, there seems to be an incentive for the media – especially the print media – to disregard balance.

  7. Steven Says:
    January 29th, 2009 at 12:39 pm

    Don’t misunderstand me: I don’t think the balance standard applies in exactly the same way on talkback, and that’s partly because listeners generally do know what they’re getting. The requirement is to make reasonable efforts to inject balance when controversial issues of public importance are discussed: usually it won’t be reasonable for a broadcaster to have to seek other views just because someone mouths off on talkback. But a three-hour attack on a public office-holder on an important public issue?

    Technically, the BSA can order a punishment if they find a breach by majority. I’m not sure whether they’ve ever done so. The broadcaster would regard the formal finding and public notification of the decision as a penalty.

    And as you probably know, the Press Council requires its members to publish a summary of its decision if a complaint is upheld against them. Newspapers certainly regard this as a form of punishment. Complainants – who can’t get costs or damages and who can be asked to sign away their right to go to court as a pre-condition to bringing a complaint – often aren’t so convinced.

  8. Kirry Says:
    February 5th, 2009 at 2:06 pm

    Reading your 27 January post Steven you seem to make a lot of comments about Laws “getting it wrong” and appear to imply that somehow the BSA has also exempted talkback from being accurate. Having read the decision I see you didn’t complain about accuracy. And, from what I’ve seen, in a couple of decisions the BSA has specifically said that accuracy DOES apply to talkback (much to broadcasters’ annoyance).

    So why didn’t you complain about accuracy if Laws was so wrong??

  9. Steven Says:
    February 5th, 2009 at 2:32 pm

    Yes, there was a complaint that the statements were inaccurate, under the rubric of fairness. The BSA has often held in the past that it can be unfair to say inaccurate and harmful things about someone.

    Why not complain under accuracy? As I said in the post, the BSA has taken a consistent line in recent years that you cannot complain about accuracy on talkback unless the host has made “unqualified statements of material fact that set the basis for discussion”. Most of Laws’ statements probably did not fall into that category. In any event, the thrust of the Commissioner’s complaint was that she ought to have been given a chance to respond. I thought this was a slam-dunk.

    Ironically, complainants now may be best advised to try to identify such unqualified statements of fact and bring accuracy complaints in relation to them, even though their real beef is balance and fairness. That will drag the BSA into either dodging the accuracy issues by saying the host’s assertions weren’t unqualified statements of material fact, or else having to determine them one way or another, neither of which is ideal.

    Why not? First up, the phrase “unqualified statements of material fact” is extremely malleable. It’s difficult for everyone to know when it applies. It’s easy for the BSA to punt one way or another in any particular case. It joins the other set of reasons the BSA advances for finding that the accuracy standard doesn’t need to be applied – “it wasn’t really a point of fact”, “it was humorous”, “it was opinion”, “it was a figure of speech”, “it was peripheral to the main point”, “it can’t be determined”, etc.

    Second, failing to rule on accuracy complaints under-protects complainants, who may nevertheless be hurt by the statements, and listeners, who may nevertheless accept them as true.

    Third, ruling on accuracy complaints can be a tricky business. There are some matters of accuracy that are just impossible to determine. With others, it can take a bit of checking out. The BSA isn’t really equipped to resolve hard factual issues. It seldom uses the full extent of its powers to determine them. If it gets an accuracy call wrong, it may force a broadcaster to air a correction to something the broadcaster still doesn’t accept it got wrong. My point is that balance/fairness rulings are much better adapted to this situation.


You must be logged in to post a comment.