PROF KOBUS VAN ROOYEN SC (CHAIRPERSON) PROF HENNING VILJOEN (DEPUTY CHAIRERSON) DR LINDA VENTER REV DANIE DU TOIT (CO-OPTED)

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1 CASE NUMBER: 38/2013 DATE OF HEARING: 20 NOVEMBER 2013 JUDGMENT RELEASE DATE: 14 JANUARY 2014 BAILEY COMPLAINANT vs ALGOA FM TRIBUNAL: RESPONDENT PROF KOBUS VAN ROOYEN SC (CHAIRPERSON) PROF HENNING VILJOEN (DEPUTY CHAIRERSON) DR LINDA VENTER REV DANIE DU TOIT (CO-OPTED) The Complainant was unable to attend the hearing of the matter. For the Respondent: Mr Alfie Jay, Programme Manager. Balance in matter of public importance presenter having taken more than sufficient steps to apologise - Bailey vs Algoa FM, Case No: 38/2013(BCCSA) SUMMARY A complaint concerned a presenter who had drawn the Complainant into a dispute concerning dolphins in captivity, without having warned her beforehand that this topic would be discussed. Bayworld, which is managed by the Complainant, had been re-opened, though it no longer included dolphins. The presenter, in a separate broadcast, apologised for so firmly putting her view regarding dolphins in captivity, during the interview.

2 2 Having listened to the recordings, the Tribunal was convinced that the presenter s apology took care of the dispute. In a sense, the presenter went further than was required of her by the Broadcasting Code. She clearly has a strong sense of what is expected of her as a presenter, and rather than attacking the Complainant unfairly, she simply put forward her view. The view she expressed is not a unique view, and relates to a matter where there are frequently differences of opinion. The presenter s view is therefore one with which the Complainant would certainly be conversant, and to our minds the Complainant dealt with the matter well enough from her perspective. The Tribunal considered whether an earlier broadcast did not, on its own, amount to a contravention of the Code in that Bayworld was unjustifiably attacked for a matter of which it was totally unaware. Judged on its own this did, in fact, amount to a contravention. However, in the light of the sincere apology by the presenter, it was decided not to pursue this aspect further. The apology put an end to the matter. It was sincere and the matter should be regarded as closed. JUDGMENT PROF KOBUS VAN ROOYEN SC [1] The Registrar received a complaint concerning programmes broadcast by the Respondent. Since I found it too complicated to address the allegations of the Complainant i.e. that the Respondent had acted unfairly towards her in regard to the matter of dolphins in captivity by merely studying the documentation and listening to recordings, I decided that it was necessary to call for a hearing of this matter. [2] The complaint was formulated as follows: I herewith wish to officially lodge a complaint against Algoa Fm in whole as well as against Daron Mann Breakfast Show including Daron Mann and Carol- Ann Kellerher. They have breached your Code of Conduct 13. Controversial Issues of Public Importance. The following incidences has spurred me to lodge this compliant: On the 17 th of May 2013 Gill Watson was contacted to give an interview on the activities that was held at Bayworld for International Museums day on the 19 th of May After her interview without warning or prior arrangement they attacked her regarding dolphins in captivity with the help of activist Grant Nash. Their point of view was presented and

3 3 no chance was given to Gill Watson who was unprepared for this. ( I know the reporting period has past but it is history to the complaint) On the 25 th of August 2013 public phoned Algoa Fm to inform them regarding a stranded dolphin Algoa Fm started attacking Bayworld on air on the fact that they (Bayworld) were not responding to the stranded dolphin where in fact no-one has informed Bayworld staff regarding the stranding and by the time they did get the message and responded as fast as possible, the public had pushed the oiled dolphin back into the ocean without giving Bayworld staff who are trained in handling injured stranded animals the opportunity to assist the dolphin. On the 6 th of September 2013 Daron Mann Breakfast requested an interview from Robyn Greyling regarding the Grand re-opening of Bayworld on the 7 th of September 2013 (which notably does not include dolphins there is currently no dolphins at Bayworld) Once again they presented their own point of view on dolphins in captivity at an interview that was not about dolphins in captivity and continued to attack Bayworld on their animals. On the 19 th of September 2013 Daron Mann Breakfast once again punted their point of view with an interview with Ric O Barry the author of Behind the dolphin smile. Clearly they are unfairly presenting their own point of view on a controversial issue of Public Importance and in the process they are breaking down one of Port Elizabeth icons and instead of congratulating and reporting on a re-opening that was supported by over 5000 people in their opening weekend they (Algao Fm) continue to unfairly present the issue of dolphins and animals in captivity with Bayworld. [3] The Respondent s argument included the following: Whilst the reporting period has lapsed in regard to the complaint dating back to May, Algoa FM is disappointed to report that we no longer have this audio available, as we would have liked to clear the air in this regard. In regard to the audio for 25 August: The presenter on air, Briony Sparg, received an about a dolphin in trouble. The listener who had written to Algoa FM was requesting that we broadcast an "on air" appeal to track down a specific person from Bay World, who could hopefully assist. The message was broadcast. A little later, the presenter learned that the Beach Manager had alerted the proper rescue authorities and broadcast this detail. In our opinion, no contravention of clauses 12 or 13 apply to the above. In regard to the audio for the 6th of September: The breakfast team interviewed Robyn Greyling about the re-opening of Bay World. During the interview, co-host Carol-Ann Kelleher, became emotional and interjected by raising concerns about dolphins in captivity.

4 4 Ms Kelleher stated clearly on several occasions that the opinions expressed by herself, were raised in her personal capacity. In her interview with Robyn Greyling, she also metnioned the book Behind the dolphin s smile by Ric O Barry as her point of reference. This was an honest expression of her opinion. Clause 12 of the code states the following: (1) Broadcasting service licensees are entitled to broadcast comment on and criticism of any actions or events of public importance. (2) Comment must be an honest expression of opinion and must be presented in such manner that it appears clearly to be comment, and must be made on facts truly stated or fairly indicated and referred to. Clause 13 of the code states the following: (1) In presenting a programme in which a controversial issue of public importance is discussed, a broadcaster must make reasonable efforts to fairly present opposing points of view either in the same programme or in a subsequent programme forming part of the same series of programmes presented within reasonable period of time of the original broadcast and within substantially the same time slot. (2) A person whose views are to be criticised in a broadcasting programme on a controversial issue of public important must be given the right to reply to such criticism on the same programme. It this is impracticable, reasonable opportunity to respond to the programme should be provide where appropriate, for examples in a right to reply programme or in a pre-arranged discussion programme with the prior consent of the person concerned. It is also clear from the audio that Robyn Greyling was given ample opportunity to respond on air during the broadcast of this interview. In our opinion, no contravention of clauses 12 or 13 apply to the above. In regard to the audio for the 9th of September: Whilst not requested to provide this audio, we feel it necessary to do so. Carol-Ann Kelleher, on her own account, without being requested to do so, broadcast a public apology to Robyn Greyling as well as the listeners. During her on air apology, she recounts the personal apology she had made to Robyn Geryling directly after the interview and references her Facebook apology. Carol-Ann made these apologies based on her own sense of integrity. She is a thorough professional who in her own opinion, became emotional about something she is deeply passionate about. In regard to the audio for the 19th of September:

5 5 We interviewed author Richard O Barry about his book: Behind the dolphin s smile, as well as his knowledge on related matters. He happens to be pro the protection of dolphins. In our opinion, no contravention of clauses 12 or 13 apply to the above. I trust you will find our response in order. I look forward to your speedy reply in this regard. EVALUATION [4] After listening to the recordings, the Tribunal was convinced that the apology by the presenter took care of the dispute. In a sense, the presenter went further than was required of her by the Broadcasting Code. It was clear to us that she has a strong sense of what is expected from her as a presenter and that, even initially, she had not attacked the complainant unfairly, but simply put forward her view. The view expressed is not a unique view, and relates to a matter where differences of opinion are frequently expressed. It is a view with which the Complainant must certainly be conversant, and to our minds the Complainant dealt with the matter well enough from her perspective. A question which arose in our discussions was whether the 25 th August broadcast, referred to above, did not, on its own, amount to a contravention of the Code in that Bayworld was unjustifiably attacked for a matter of which it was totally unaware. We believe that judged on its own this did, in fact, amount to a contravention. However, in the light of the sincere apology by the presenter, we have decided not to pursue this point further. The apology, in our view, put an end to the matter. It was sincere and we believe that the matter should be regarded as settled. In conclusion I quote the apology, which speaks for itself: Daron has given me some airtime so I am taking this opportunity to apologise once again to Robyn, and to our listeners. I did post an pology on Facebook on Friday but not everyone will get to see that. I did phone Robyn straight after the interview to apologise and she was more than gracious in her acceptance of my apology. On Friday, I disappointed myself..i let myself down..i behaved in a completely unprofessional manner by allowing my passion for something I believe in to completely override my sense of right and wrong..i don t know what happened to me on Friday..I honestly don t.it was like something else took

6 6 over inside me anyway..i was way out of line..it was inappropriate.and it was rude.especially given the context of our intended discussion and I am truly sorry for having behaved in the manner in which I did. It will never happen again. In the light of the apology the matter is regarded as closed. JCW VAN ROOYEN SC CHAIRPERSON Commissioners Viljoen and Venter and Co-opted Commissioner du Toit concurred in the above judgment.