BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

CanWest TVWorks Ltd became TVWorks Ltd on 15 June 2007. Because the programme complained about was broadcast prior to this date, the broadcaster is still named as CanWest TVWorks Ltd.

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Headnote

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Interlocutory decision on production of field tape of interview with representative from Ministry of Health - featured in 3 News Special entitled "Let Us Spray" on 23 October 2006

Ruling
Order made to supply tape to the Authority – section 12 Broadcasting Act 1989 and section 4C Commissions of Inquiry Act 1908

This headnote does not form part of the decision.

INTERLOCUTORY DECISION

Background

[1]   A 3 News Special entitled "Let Us Spray" was broadcast on Monday 23 October 2006 at 7.30pm on TV3. The programme contained interviews with several Paritutu residents and their extended families, all of whom believed that various illnesses and birth defects were a result of exposure to 2,4,5-T or 2,4-D. It also reported the results of a blood serum study released by the Ministry of Health (MOH), and a forensic accountant outlined concerns about the accuracy of the report.

[2]   MOH made a formal complaint to CanWest TVWorks Ltd, the broadcaster, that the programme was unbalanced, inaccurate, and unfair to the Ministry. Having received a response from the broadcaster, it then referred its complaint to the Authority on 2 February 2007. It noted that a Ministry representative (Dr Mark Jacobs) had been interviewed, and excerpts of that interview had appeared in the programme. MOH argued that the Authority should ask or require CanWest to provide a copy of the field tape of an interview with Dr Jacobs in order for it to assess whether standards of balance and fairness (in particular, the editing of the interview) had been breached. It also submitted that the Ministry should be provided with a copy of the tape in order to complete its response effectively.

[3]   After several delays, CanWest provided the Authority with a formal response to the referral on 7 August 2007. Having received a copy of this response, MOH made a further request that the Authority obtain a copy of the full field tape of Dr Jacobs’ interview, and that the Ministry should also receive a copy.

[4]   Having considered the submissions from both parties, in a letter dated 5 September 2007, the Authority asked CanWest to provide it with a complete field tape of the interview with Dr Mark Jacobs by Wednesday 19 September 2007. On 11 September 2007, the Authority advised CanWest that it intended to also provide a copy of the field tape to MOH, writing:

This letter is to advise you that the Authority intends to provide MOH with a copy of the field tape. In reaching this decision, the Authority has taken into account the fact that, in its response to the referral, TVWorks has quoted from a section of the field tape that was not broadcast.

Given that the broadcaster has relied upon material that was not in the programme, the Authority considers that, under the principles of natural justice, the complainant should have the opportunity to view and comment on this material.

[5]   The broadcaster did not provide the field tape, or a response to the Authority’s letter, by 19 September 2007 as requested.

[6]   Following an email from the Authority to CanWest on 20 September 2007, the broadcaster stated that it wished to make some arguments in respect of whether the field tape should be provided to MOH. The Authority agreed to this request, and asked that further submissions be supplied by Tuesday 2 October 2007.

[7]   On Wednesday 3 October, having received no submissions from CanWest, the Authority again wrote to the broadcaster stating:

...if your comments on the field tape issue are not received by 10am tomorrow morning, the Authority intends to consider ordering TVWorks to produce a copy of the field tape, within 24 hours, pursuant to s.12 of the Broadcasting Act 1989 and s.4C of the Commissions of Inquiry Act 1908.

[8]   On Thursday 4 October, CanWest wrote to the Authority questioning whether MOH had laid a proper foundation for the inspection of the field tape. It suggested that CanWest could make the field tape available to the Authority members, "preferably those most experienced with television production", so that it could then consider whether MOH had laid a proper foundation for its request.

[9]   Acknowledging that its response had referred to a portion of the interview which had not been broadcast, CanWest said it would happily excise that material from the record. It also suggested that, rather than providing MOH with a copy of the tape, it could provide a transcript or make the tape available for viewing.

[10]   In a letter dated 4 October 2007, the Authority asked the broadcaster to provide it with a copy of the field tape by 5pm on 8 October 2007. It again advised the broadcaster that it intended to provide MOH with a copy of the tape. The Authority wrote:

As discussed earlier, the Authority’s view is that, because TVWorks referred to a part of the interview with Dr Jacobs that was not broadcast, the principles of natural justice require that the complainant be provided with this material. The Authority does not consider that it is appropriate for TVWorks to simply excise that portion of its response, or that MOH simply view the field tape.

The Authority is mindful that journalists regard field tapes as being equivalent to a reporter’s notebook. In this case, however, that material has been placed into the public domain by virtue of its incorporation into the complaint by the journalists themselves.

[11]   CanWest advised the Authority on 4 October 2007 that it was taking advice on this matter. It did not provide the Authority with a copy of the field tape, or indeed any response, by 8 October 2007 as requested in the Authority’s letter.

[12]   On Tuesday 9 October, the broadcaster reiterated its concerns about providing the field tape to MOH. It proposed that the Authority hear legal argument on this point, in the form of written and oral submissions, and stated that it wanted the opportunity to advise the Authority on how similar Tribunals considered discovery-like requests.

Authority’s Ruling

[13]   Section 12 of the Broadcasting Act 1989 allows the Authority to use certain provisions in the Commissions of Inquiry Act 1908. Section 4C(1)(b) of the Commissions of Inquiry Act provides that a Commission may:

Require any person to produce for examination any papers, documents, records, or things in that person's possession or under that person’s control, and to allow copies of or extracts from any such papers, documents, or records to be made.

[14]   Section 4C(3) of the Act states:

For the purposes of the inquiry the Commission may of its own motion, or on application, order that any information or particulars, or a copy of the whole or any part of any paper, document, or record, furnished or produced to it be supplied to any person appearing before the Commission, and in the order impose such terms and conditions as it thinks fit in respect of such supply and of the use that is to be made of the information, particulars, or copy.

[15]   Leaving aside the question of whether MOH should be provided with a copy of the field tape, the Authority is of the view that it requires a copy of the full interview in order to determine the Ministry’s complaint about balance and fairness. In these circumstances the Authority considers that it is appropriate to exercise its powers in accordance with the above sections.

[16]   In reaching this decision, the Authority has paid particular regard to McKay J’s judgment in the Court of Appeal decision Comalco NZ v Broadcasting Standards Authority (1995) 9 PRNZ 153 (CA) PDF (714.73 KB), at paragraph 161:

We agree that the Authority’s jurisdiction is to deal with complaints as to what is broadcast, but it is entitled to consider any evidence that "in its opinion may assist it to deal effectively with the subject of the inquiry": Commissions of Inquiry Act 1908 section 4C. To determine whether broadcast material is balanced and objective may well call for consideration of the way in which it was selected and in which other material was excluded. The Authority is not thereby extending its jurisdiction by making a decision on the material not in the actual broadcast. It is using that material in order to decide whether the complaint is justified, and whether the broadcast failed to comply with the standards required by the Act.

[17]   The Authority considers that it must obtain a copy of the field tape in order to make a proper assessment of balance and fairness in the selection and editing process, as these are significant aspects of MOH’s complaint.

[18]   Accordingly, pursuant to section 12 of the Broadcasting Act and s.4C(1)(b) of the Commissions of Inquiry Act, the Authority directs CanWest to provide it with a copy of the field tape of the interview with Dr Jacobs, portions of which were broadcast in the 23 October 2006 programme. The field tape must be lodged with the Authority by 5pm on Friday 12 October 2007.

[19]   Further, the Authority invites CanWest to make written submissions as to whether the field tape should be released to MOH and, if so, on what terms. These submissions are to be lodged with the Authority no later than 5pm on 17 October 2007. It will also seek written submissions from MOH within the same timeframe. The Authority considers that written, rather than oral, submissions will be sufficient for the parties to make their arguments.

Order

Pursuant to section 12 of the Broadcasting Act 1989 and section 4C of the Commissions of Inquiry Act 1908, the Authority orders CanWest TVWorks Ltd to provide it with the field tape of the full interview with Dr Mark Jacobs, excerpts of which featured in the 23 October 2006 broadcast of Let Us Spray, by 5pm on Friday 12 October 2007.

Signed for and on behalf of the Authority

Joanne Morris
Chair
10 October 2007