Here it is, fans, my response from the MediaWorks Standards Committee about my complaint.  According to law, I had to file a complaint with MediaWorks first and be declined before I could appeal to the Broadcast Standards Authority, New Zealand’s FCC. Stand by for my response! All italicization is mine, for emphasis.

Dear Malcolm,

The MediaWorks Standards Committee wishes to advise you we have completed our inquiry into your formal complaint about the decision to broadcast on The Edge on 3 April 2019, an edited version of your interview with Dom Harvey, Meg Annear and Clint Randell. You complained that this breached Standards 4, 5, 6 ,8, 9 and 11.

We have not identified any breach of the standards set out in the Code of Broadcasting Practice. Our reasoning is outlined in further detail below.

If you are not happy about this decision you have the right in accordance with Section 7(3) of the Broadcasting Act 1989 to refer your complaint to the Broadcasting Standards Authority, (P.O. Box 9213, Wellington or bsa.govt.nz) for the purpose of an investigation and review. You have 20 working days after receipt of this email to exercise this right of referral.

The Broadcast

The broadcast on 3 April was the final installment of a storyline which ran over three episodes of the Dom, Meg and Randell show. We have provided copies of all of the audio from these episodes, with this response. However in summary:

On 29 March the hosts first discussed the viral ‘Florida man’ birthday challenge, in which people conduct a Google search with their date of birth and the words “Florida man”, and receive news stories about the behaviour of a ‘Florida man’ on their birthday. ‘Florida man’ is a generic descriptor for a person who commits bizarre or idiotic crimes, popularly associated with—and often reported in—Florida.

Dom had conducted such a search using his birth date 3 February. The first search result was an article about you with the headline “Florida Man who had sex with dolphin says it seduced him”.

Following this discussion, listeners rang in to contribute their own birth dates and “Florida Man” stories.

On 1 April: the hosts discussed how they had recorded an interview with you, and provided some more detail about your story, including that:

• you had written a book;
• you had been fired from the aquarium where this occurred (which we are aware is not the case, but do not think is material);
• you had been interviewed by MediaWorks’ journalist (at the time) David Farrier;
• you had reviewed the movie “The Shape of Water” in a piece for Huffington Post;
• the dolphin’s name was Dolly;
• you had made a documentary about your relationship with Dolly;
• you didn’t go through the court system and weren’t sent to jail;
• you claim Dolly was in love with you;
• you claim Dolly initiated the behaviour and seduced you over time;
• you claim Dolly was so distraught when you were separated that she took her own life.

Meg made clear her opposition to hearing about bestiality and outlined her counter-view that Dolly was “traumatised because a man had seduced her and she’s a dolphin”. The hosts then sought and received feedback from listeners on whether or not to broadcast the interview.

Dom indicated he would need to clear it with his legal team before broadcasting.

On 3 April the hosts described the “Florida Man” challenge again, played extracts of the previous show and emphasised to listeners not to ‘flip out’ because they had heard the audience feedback and weren’t going to play the full interview.

They talked about Meg’s opposition to this storyline and played the following extract from the interview:

Malcolm: Dolphins’ skin is peeling all the time so they need to have it rubbed. She would roll over on her back and then swim forward until I was rubbing her [bleep].

Meg: This is sick. This is sick. I think you’re sick in the head and this is disgusting. This is a non-consensual situation. A dolphin cannot consensually choose to have sex with a human and you absolutely took advantage of that and I don’t want to be involved with this.

Meg explained she was flustered and furious, and the hosts explained that everyone who got into contact with the show – apart from one listener named Peter – had agreed that the topic was not appropriate for broadcast. Peter was given the opportunity to listen to the entire interview off-air and was then asked for his view of the interview. Peter indicated that he regretted having heard it.

Standard 4 Violence

The Violence Standard states that :

Broadcasters should exercise care and discretion when referencing violence.

We have not identified any content which referenced violence, and no breach of this Standard.

Standard 5 Law and Order

Under the Law and Order Standard:

Broadcasters should observe standards consistent with the maintenance of law and order, taking into account the context of the programme and the wider context of the broadcast.

As the commentary on this Standard makes clear, its purpose is to prevent broadcasts that encourage audiences to break the law, or otherwise promote criminal or serious antisocial activity.

This broadcast did not promote criminal or serious antisocial activity; rather the inverse is the case. The hosts criticised behaviour which is unlawful in New Zealand under section 143 of the Crimes Act 1961. We consider that this was appropriate,and there is no breach of this Standard.

Standard 6 Discrimination and denigration

Under the Discrimination and Denigration Standard:

Broadcasters should not encourage discrimination against, or denigration of, 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.

Although elements of the Broadcast – particularly Meg’s comments – were dismissive and even condemnatory of your behaviour, the Commentary on this Standard is clear:

“This standard does not apply to individuals…
The standard applies only to recognised ‘sections of the community’ which is consistent with the grounds for discrimination listed in the Human Rights Act 1993.”

We do not accept that people who have sex with dolphins, or even at the broadest level, zoophiles (i.e. people with a persistent sexual interest in animals) comprise a “section of the community” within the scope of this Standard. Although the Human Rights Act does prohibit discrimination on the grounds of “sexual orientation”, it defines this as “heterosexual, homosexual, lesbian, or bisexual orientation” only (see section 21(1)(m)), and not an orentation towards animals.

This is consistent with the fact that bestiality is illegal in New Zealand. Zoophiles are not protected from discrimination in the Human Rights Act and we do not accept that the Standard applies here, or that the Standard was breached by this Broadcast.

Standard 8 Balance

Under the Balance Standard:

When controversial issues of public importance are discussed in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

As summarised in Guideline 8a, for the standard to apply, the subject matter must be an issue ‘of public importance’, it must be ‘controversial’ and it must be ‘discussed’ in a news, current affairs or factual programme.

The Standard does not apply in this case, because at least two of these requirements are not made out:

• While clearly important to you, this issue is not relevant to the wider New Zealand public and is not ‘of public importance’. Bestiality, and the capacity for animals to consent to intercourse with a human are fringe issues, without any widespread or mainstream importance.
• The Dom, Meg and Randell show is not a news, current affairs or factual programme. The show is promoted as a place for “the latest entertainment news, celebrity gossip, scandal, competitions and all the funniest gags to spark up your morning”. Listeners expect light-hearted chat and laughs, but do not reasonably expect it to be “authoritative or truthful”, which is the defining characteristic of a factual programme according to the commentary on the Standards.

Standard 9 Accuracy

Under the Accuracy Standard:

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:
• is accurate in relation to all material points of fact
• does not mislead.

The purpose of this standard is to protect the public from being significantly misinformed. However the Standard applies only to news, current affairs and factual programming, which this was not (see para 16b above) . Therefore there cannot be a breach of this Standard.

Standard 11 Fairness

Under the Fairness Standard:

Broadcasters should deal fairly with any person or organisation taking part or referred to in any broadcast.

There are serious issues with how Dom, Meg and Randell dealt with you and your contribution during the Broadcast. In particular the Committee is concerned about the way the interview was edited and broadcast on 3 April, and the information which Dom Harvey provided to you after your interview, which was misleading and incomplete. We have raised these concerns with the show’s producers and presenters and have reminded them of their obligations under this Standard. We have also reviewed our processes to take into account the slightly unusual situation here, where a storyline was modified in response to clear listener feedback.

However overall we are satisfied that the storyline or the 3 April broadcast were not unfair to you, and fairly reflects your position in relation to your interactions with Dolly.

The BSA’s Commentary on this Standard states:

Generally, a consideration of what is fair will take into account the following:

• whether the audience would have been left with an unduly negative impression of an individual or organisation
• whether an individual or organisation taking part or referred to in a programme was adequately informed of the nature of their participation
• whether informed consent was required and/or obtained (guidance on what constitutes ‘informed consent’ is found in Guidance: Privacy at the back of this Codebook)
• whether the individual or organisation was given a reasonable opportunity to comment, and whether their comments were adequately presented in the programme
• the nature of the individual, for example, a public figure or organisation familiar with dealing with the media, as opposed to an ordinary person with little or no media experience
• whether any critical comments were aimed at the participant in their business or professional life, or their personal life
• the public significance of the broadcast and its value in terms of free speech

The Committee has considered the context around the broadcast:

We accept that the show’s audience would have been left with a negative impression of you based on your behaviour with Dolly. However we do not accept that this impression was caused by the Broadcast. In the Committee’s view, any negative impression was a result of pre-existing perceptions of bestiality and those who engage in it. The Committee is satisfied that there is already widespread distaste for the behaviour you engaged in. The feedback from listeners of the programme supports this view, and again we note that the New Zealand legislature has seen fit to prohibit bestiality with a serious criminal sanction of up to seven years’ imprisonment.

We consider that prior to the broadcast you were adequately informed of the intended nature of your participation. At that time the hosts did plan to broadcast your interview in full or use it for a podcast. It was only after they received overwhelming listener feedback and appreciated that there was no audience appetite for this story, that the hosts and production team reconsidered their approach. We would have expected them to communicate their decision to you. In any event is clear to us that you are experienced in dealing with the media and have told your story before, and we are certain that you would have expected and would have been prepared for opposition or condemnation of your behaviour.

The Committee does not approve of the way your interview was edited, and we understand why you might feel you had not been given a reasonable opportunity to comment. However we agree with producers that in light of the audience’s clear expectations it was not appropriate to play the entire interview. A better decision would have been not to play any part of your interview, rather than playing only the portions of the interview in which Meg reacted to your behaviour. Despite this we are satisfied that your position was adequately presented across the series of broadcasts, and the 3 April Broadcast on its own. In particular your claims that Dolly initiated and consented to this behaviour were presented, as were your claims that Dolly was forlorn by your separation and died of a broken heart, and the fact bestiality was not illegal in Florida at that time or until 2011. We do not accept that listeners were unaware of your position.

Summary

In summary there is no basis to uphold your complaint.

Kind regards,
The MediaWorks Standards Committee

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