Plunket Decision

gistfile1.txt

Decision No. 2015-087
Under The Broadcasting Act 1989
Between PETER GREEN
Complainant
And MEDIAWORKS RADIO LTD
Broadcaster
Before
Peter Radich, Chair
Te Raumawhitu Kupenga
Paula Rose
*Leigh Pearson declared a conflict of interest and did not participate in the determination of
this complaint.

Decision of the Broadcasting Standards Authority
3 March 2016

Summary
[This summary does not form part of the decision.]

During Talk with Sean Plunket, the CEO of the National Foundation for the Deaf
called in to discuss captioning on television, and especially the perceived problem of
the lack of captioning of broadcasts of the 2015 Rugby World Cup. Mr Plunket
argued, ‘You can actually watch the rugby with the sound off, you can see – they’ve
got big numbers on their backs – you can see what’s happening’ and asked, ‘Really
is this such a problem?’ After further discussion, he stated, ‘You do have a hearing
problem because you’re not actually engaging in a conversation’. The Authority did
not uphold a complaint that Mr Plunket’s comments amounted to bullying and
denigrated the deaf community. Taking into account freedom of expression and the
context of talkback radio and this particular broadcast, Mr Plunket’s comments did
not reach the high threshold necessary for a finding that the broadcast encouraged
discrimination or denigration, nor did they go so far as to breach standards of good
taste and decency.

Not Upheld: Discrimination and Denigration, Good Taste and Decency 

Introduction

[1] During Talk with Sean Plunket, the CEO of the National Foundation for the
Deaf called in to discuss captioning on television, and especially the
perceived problem of the lack of captioning of broadcasts of the 2015 Rugby
World Cup.

[2] Mr Plunket, in a way which is typical of talkback radio hosts, took a position
contrary to that of his caller. He argued, ‘You can actually watch the rugby
with the sound off, you can see – they’ve got big numbers on their backs –
you can see what’s happening’, and asked, ‘Really is this such a problem?’
The caller pressed on with the position she was taking. A point was reached
when Mr Plunket stated, ‘You do have a hearing problem because you’re not
actually engaging in a conversation’. When the caller asked, ‘What was
that?’ Mr Plunket repeated his comment about her having a hearing
problem. He then hung up on the caller.

[3] Peter Green complained that it was ‘unacceptable’ for Mr Plunket to ‘bully
callers based on their disabilities’ and that the broadcast ‘encouraged
denigration of the deaf community’.

[4] The issue for us is whether the broadcast breached the discrimination and
denigration and good taste and decency standards of the Radio Code of
Broadcasting Practice.

[5] The discussion was broadcast on Radio Live at approximately 10.30am on
25 September 2015. We 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

[6] In considering any complaint that comes before us, the importance of the
right to freedom of expression must be weighed against the level of harm
alleged to have been caused by the broadcast, in terms of the underlying
objectives of the relevant broadcasting standards (1). We are only able to limit
the broadcast and the right to freedom of expression – both the
broadcaster’s right to impart information and the audience’s right to receive it
– if it is justified and reasonable to do so.

(1) See sections 5 and 14 of the New Zealand Bill of Rights Act 1990

[7] Mr Plunket's talkback show was part of a regular and longstanding talkback
format on Radio Live. We have noted in previous decisions that this is
territory where excessive language and inappropriate comments are often
heard from listeners calling in and sometimes from the radio host (2). To
stimulate reactions and responses the talkback host sometimes uses
extravagant language and intentionally ‘goes over the top’. Provocative and
extravagant language has also been used by previous radio hosts on this
programme (3).

(2) For example, see Parlane & Wilson and MediaWorks Radio Ltd, Decision No. 2015-009
(3) See, for example, Richmond and RadioWorks Ltd, Decision No. 2013-023 and Bowman and
RadioWorks Ltd, Decision No. 2012-049

[8] Here, the caller phoned in to Mr Plunket’s show and introduced herself as
follows:
I’m the CEO for the National Foundation for the Deaf, and I’m also on
the International Federation for Hard of Hearing board globally and
with human rights responsibilities… I’m hard of hearing and I’ve got a
lot of knowledge [about] the Convention on the Rights of People with
Disabilities, and we have got this major issue with the lack of
captioning on the Rugby World Cup games for people like me, and
under Article 9 of the Convention – which New Zealand signed in 2008
– we have been assured accessibility, and there’s no captioning, we
can’t access the Rugby World Cup games.

[9] An exchange followed between the caller and Mr Plunket:
Mr Plunket: Now [caller], you have come right out of left field at me,
but this is interesting, I do think it’s interesting, thank
you for calling and raising this issue. How many people
do have a hearing disability in New Zealand?
Caller: The World Health Organisation says one in six people
have some type of hearing loss and they estimate by
2050 it will be one in four. So we’re looking at hundreds
of thousands of New Zealanders who want to use
captioning.
Mr Plunket: Ok, so have you had hundreds of thousands of New
Zealanders contact you beefing about this?
Caller: We have hundreds contacting us, yes.
Mr Plunket: Hundreds?
Caller: Well, probably more than hundreds when you think
about it.
Mr Plunket: …They’ve all contacted you to complain about this?
Caller: Yes, there’s a number of Facebook pages up running
about it… we’ve all got blogs going about it. I talked to
the Prime Minister about it two days ago and Mojo
Mathers raised it in the House yesterday asking, you
know, ‘What’s going on?’ We had captioning in the last
Rugby World Cup series when it was put on by TVNZ,
but it’s SKY TV that are not giving such. In the UK…
Mr Plunket: Well hang on, what would the captions be? Because
actually… you can watch the rugby with the sound off,
you can see – they’ve got big numbers on their backs –
you can see what’s happening.
Caller: Someone like me for instance, I don’t actually
understand who’s in what number, but I listen, and I
understand what’s going on in the game by reading
what’s going on.
Mr Plunket: Look… why don’t you learn what the positions are and
who’s in what position? What don’t you just learn who
wears what number on their back, you wouldn’t have to
– look, to be honest, a lot of us turn the commentary off
because it’s so rubbish.
Caller: Yeah, but you have the choice. We don’t.
Mr Plunket: Really, is this such a problem?
Caller: Yes, it is a really serious problem.
Mr Plunket: What, that you don’t hear [the commentators] flapping
on, you don’t hear the inane sideline comments?
Caller: That’s the Rugby World Cup, but in fact it’s across all
television. We’ve got really low rates of captioning
across all television… It’s not just rugby, it’s right
across everything. In the UK it’s legislated and in the
US it’s legislated…

[10] Mr Plunket and the caller then discussed the commercial viability or
otherwise of captioning for broadcasters. At times the two talked over each
other. The conversation ended with the following exchange:
Mr Plunket: You do have a hearing problem because you’re not
actually engaging in a conversation.
Caller: What was that?
Mr Plunket: You do have a hearing problem because you’re not
engaging in a conversation.
Caller: Yes, I do have a hearing problem, you’re right.

[11] Mr Plunket then terminated the call, and said:
I think we’d heard all we could from [the caller] and not really got a
word in edgeways. Look, I would hate to have a disability like that, a
hearing disability. Is it really such a big deal? Has really hundreds of
people complained to [the caller] about this? Or is it just, ‘Let’s jump
on the Rugby World Cup bandwagon to push our point’… I’m not
being hardarse here. I’m also saying it is pretty simple to watch rugby
with the sound turned off and know what’s going on. Big letters on the
back of those jerseys, big letters… I don’t know, am I being mean?
What do you think?... I’d like to hear from you if you are one of those
hundreds of people who did complain.
Did the broadcast encourage discrimination against, or the denigration
of, people with a hearing disability as a section of the community?

[12] The discrimination and denigration standard (Standard 7) protects against
broadcasts which encourage the denigration of, or discrimination against,
any section of the community on account of sex, sexual orientation, race,
age, disability, occupational status, or as a consequence of legitimate
expression of religion, culture or political belief.

[13] The term ‘denigration’ has consistently been defined by the Authority as
blackening the reputation of a class of people (4).
‘Discrimination’ has been
consistently defined as encouraging the different treatment of the members
of a particular group, to their detriment (5).

(4) See, for example, Mental Health Commission and CanWest RadioWorks, Decision No.
2006-030
(5) For example, Teoh and Television New Zealand Ltd, Decision No. 2008-091

[14] As we have said many times in previous decisions, all programmes which
are the subject of complaints need to be assessed in the context in which
they are broadcast. We have also said that talkback radio is a particular
broadcasting genre where robust give-and-take is to be expected and is
necessary to maintain the flow of exchanges (6). Talkback radio is an example
of freedom of expression in action and it serves a valuable public purpose,
giving some who may not otherwise have any opportunity to have a voice, a
forum where their views can be expressed. While views expressed may
sometimes be extreme or unpleasant, the value of freedom of expression is
such that in our society we must pay the price for keeping the conduits of
expression open and free. Nevertheless there are of course limits even in
talkback radio and the question here is whether those limits were reached.

(6) For example, see Parlane & Wilson and MediaWorks Radio Ltd, Decision No. 2015-009 

[15] Mr Green argued that it was ‘unacceptable for [Mr] Plunket to encourage
denigration of the deaf community with this sort of insult’. He said that, as
the caller was speaking in her capacity as the CEO of the National
Foundation for the Deaf, it was ‘not unreasonable to assume that the impact
of [Mr] Plunket’s insult would be felt by the section of the community she
represents’.

[16] Mr Green also included a letter from the caller (responding to his questioning
how she felt about what had happened) in which she stated that Mr
Plunket’s behaviour towards her left her ‘stunned’ and ‘incredibly humiliated’.
She described how the interaction was a ‘ghastly experience’ that made her
feel ‘ashamed’ and ‘violated’.

[17] MediaWorks emphasised the context of the discussion, namely the nature of
the talkback environment and Mr Plunket’s well-established style. It
acknowledged that ‘Sean Plunket’s strongly held opinions could be
considered extreme by some listeners.’ It also recognised that his comment
‘you do have a hearing problem’ was ‘indelicate and may have been
offensive to some listeners (particularly those unfamiliar with Plunket’s
particular brand of broadcasting)’. However, it said, ‘there is a significant
level of expectation that talkback hosts will on occasion make narrow, onesided,
hyperbolic or controversial statements “for effect” and to generate
discussion and debate’. In terms of whether the broadcast could be said to
encourage discrimination or denigration, MediaWorks argued that, as Mr
Plunket’s comment was ‘directed at a specific individual in relation to… her
conduct’, it did not ‘devalue the reputation of a class of people’. It said that
this comment was intended as a ‘darkly humorous quip – delivered in [Mr
Plunket’s] typically abrasive style – in an attempt to gain ascendancy in an
argument’. MediaWorks argued that the comment did not ‘carry a high level
of invective’, was not ‘hostile or abusive’ and was not intended to ‘ridicule
[the caller] on the basis of her disability or malign people with hearing
problems’. It also said that ‘it was clear that Mr Plunket was not seriously
suggesting that [the caller’s] failure to acknowledge his point of view was
because she had a hearing problem’. It concluded by saying that ‘the
contention that Mr Plunket implicitly approved the ridicule of persons with
disabilities is a very flimsy inference to take’.

[18] At the outset, we note that there are elements of the complaint, for example
that Mr Plunket was ‘bullying’ the caller, that lend themselves to a
consideration of fairness principles and whether the caller was treated fairly.
The fairness standard (Standard 6) has not been raised here, so we are not
able to consider it. However any assessment we make of the manner in
which the caller was treated, including the host’s language and tone, will be
relevant to our assessment of whether the broadcast as a whole encouraged
discrimination or denigration of the deaf community.

[19] The question for us is whether Mr Plunket’s comments moved beyond being
a robust exchange with a talkback caller to the point where they could be
seen as devaluing the reputation of other people with hearing disabilities, or
encouraging the different treatment of that group of people, to their
detriment. To get to a point where we are able to find that a breach of the
discrimination and denigration standard has occurred we need to be
satisfied that what happened in this broadcast would likely have hurt or
disadvantaged people with hearing disabilities generally.

[20] In previous decisions we have said that it is unacceptable for a broadcasting
host to mock and make fun of any person or persons on the basis of a
disability. In Ashurst and 10 Others and Television New Zealand Ltd we
upheld complaints about a television presenter’s reference to a singer as
‘retarded’ (7). We said that ‘if a person discriminates against or denigrates a
single person on account of that person’s characteristics which are common
to others, then other people who have those features or characteristics are
also subject to discrimination or denigration’. We did not think that the
comments in that case were acceptable as humour, satire or otherwise. In
Adams and 4 Others and Television New Zealand Ltd we upheld
discrimination and denigration complaints against a broadcaster where a
television presenter’s comments were directed at a former GovernorGeneral
who was said not to look like or sound like a New Zealander (8). Then
in Adams, Godinet and Parsons and Television New Zealand Ltd we
expressed strong disapproval of a television commentator’s insults of a
racist kind against a foreign politician (9). So it can be seen that there is a line
which must not be crossed. However, it will also be appreciated that this is
not a bright line but rather one which has to be found in each case.
Sometimes the line is easy to find but in other cases, and this is one, it is not
so simple.

(7) Decision No. 2010-001
(8) Decision No. 2010-143
(9) Decision No. 2010-145

[21] In this case there were broadly two sets of comments made by Mr Plunket.
In the first set, he was expressing his reaction to the caller’s suggestion that
it was a serious problem that no captioning was provided on rugby games
during the Rugby World Cup. He made comments such as:
 ‘…you can watch the rugby with the sound off, you can see – they’ve got
big numbers on their backs – you can see what’s happening…’
 ‘Look… why don’t you learn what the positions are and who’s in what
position? What don’t you just learn who wears what number on their
back… to be honest, a lot of us turn the commentary off because it’s so
rubbish...’
 ‘Really, is this such a problem?’

[22] The second lot of comments involved Mr Plunket saying twice to the caller,
‘You do have a hearing problem because you’re not actually engaging in a
conversation.’

[23] Taking a broad view, we can understand how the first set of comments could
be seen to apply to all people with a hearing disability, as a section of the
community. The suggestion that could be drawn from the comments was
that these people should take extra steps to understand the game of rugby,
while, as the caller pointed out, others ‘have a choice’ whether or not to pay
attention to the sports commentary offered and to use it as a means to follow
the game. The caller indicated she had received many complaints about the
absence of captioning on rugby games and also that she personally prefers
to follow what’s happening through the commentary.

[24] In terms of the second set of comments, it is clear to us and we think it
would have been clear to all listeners that when the radio host was referring
to the caller as having a ‘hearing problem’ he was saying that the caller had
a listening problem, rather than bullying her on the basis of her disability. By
this he meant, and he made it reasonably clear, that in his view the caller
was presenting a position in a determined way and did not have her mind
open to engage with the radio host in a debate about his contrary position. It
may be that Mr Plunket would not have made this particular comment, in this
language, had the caller not had a hearing disability. However even if we
found that the caller herself had become the subject of denigration on the
basis of this comment, that would not be enough because this standard is
not directed at preventing harm to individual persons, which, as we have
said, is a matter of fairness.

[25] The fact that some of Mr Plunket’s comments may be seen as extending to
a section of the community is not sufficient in itself to conclude that the
broadcast as a whole breached the discrimination and denigration standard.
It is well-established that in light of the importance of the right to freedom of
expression, a high level of invective is necessary for the Authority to
conclude that a broadcast encourages denigration or discrimination in
contravention of the standard (10). Usually, some element of malice or
nastiness is required to make such a finding.

(10) E.g. McCartain and Angus and The Radio Network, Decision No. 2002-152

[26] We have considered this complaint and the broadcast very carefully and
overall we do not think that Mr Plunket was being malicious or vitriolic, or
that his comments reached the high threshold necessary for us to intervene.

[27] In the broadcast Mr Plunket was expressing his views in a forceful,
provocative manner. Some listeners may have found this to be abrasive and
rude, and his treatment of the caller questionable. However, that Mr Plunket
was abrupt or rude in his handling of the conversation is not sufficient in
itself to breach standards and ultimately we do not think he crossed the line
of what is acceptable. This was talkback where some rough and tumble is
what is expected and what is accepted. This is not a place where only soft,
genteel and elegant exchanges are to be expected. Callers going on to
talkback radio ought reasonably to expect that they may have a rough ride at
the hands of the radio host or other callers. This caller was an articulate
communicator who was determined to express her point of view. The radio
host adopted a sceptical and questioning tone in response, and neither
would yield. The radio host, using his control, terminated the conversation by
hanging up and then getting in the ‘last word’. Clearly, if the radio host
formed the opinion that the caller was not willing to engage in a debate, then
the radio host had the freedom to express that view, and that would not have
been surprising to regular listeners of talkback.

[28] Nor do we think, on the basis of this exchange, that reasonable listeners
would have been encouraged to malign people with a hearing disability or
treat them differently. Mr Plunket encouraged others to phone in and
contribute to the debate and we think it likely that those who did phone in
would have reflected both sides of the argument. We know that most people
who suffer from disabilities do not like to be treated with special sensitivity
and none will enjoy being patronised. We need to be careful not to put up
artificial shields around people with disabilities such that they feel treated as
being weak or different. But at the same time we have to be careful to
ensure that people with vulnerabilities are not hurt by having their disabilities
targeted for ridicule or abuse. There are many factors to be put into the
balance and inevitably, different people will have different views as to where
the ultimate balance lies. The view that we have reached is that while the
host’s comments may have been construed as insensitive and he may have
handled the conversation better, the point has not been reached where we
should intervene and say broadcasting standards have been breached.

[29] For these reasons, we do not uphold the complaint under Standard 7.
Did the broadcast threaten current norms of good taste and decency?

[30] The good taste and decency standard (Standard 1) is usually concerned
with broadcasts containing sexual material, nudity, coarse language or
violence (11). However the Authority will also consider the standard in relation
to any broadcast that portrays or discusses material in a way that is likely to
cause offence or distress (12).

(11) Turner and Television New Zealand Ltd, Decision No. 2008-112
(12) Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November
2006)

[31] Mr Green’s concern was that it was ‘unacceptable’ for Mr Plunket to ‘bully
callers based on their disabilities’. For similar reasons to those we have
outlined in relation to Standard 7, we have reached the view that the content
of this broadcast did not threaten standards of good taste and decency.
Context is all-important in a consideration of this standard, which here
includes the robust nature of the talkback environment, the radio station’s
adult target audience, audience expectations of this particular Radio Live
slot and expectations of Mr Plunket. While Mr Plunket’s approach to this
conversation may not have been to everyone’s liking, we do not think the
general audience would have been unduly offended or distressed by the
broadcast.

[32] We therefore do not uphold the Standard 1 complaint.
For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority
Peter Radich
Chair
3 March 2016

Appendix

The correspondence listed below was received and considered by the Authority
when it determined this complaint:
1 Peter Green’s formal complaint – 26 September 2015
2 MediaWorks’ response to the complaint – 21 October 2015
3 Mr Green’s referral to the Authority – 27 October 2015
4 MediaWorks’ response to the Authority – 26 November 2015
5 Mr Green’s final comments – 7 December 2015
6 MediaWorks’ final comments – 21 December 2015