BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

                                 INTERLOCUTORY DECISION

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Interlocutory application for disclosure of additional material – broadcast of allegations by an anonymous interviewee on Nine to Noon

Decision on interlocutory application
Request for production of field tape – already offered by broadcaster – decline to determine

Request for disclosure of interviewee’s name – not required in order for Authority to determine complaints – declined

Request for production of all relevant pre-broadcast records and documents, and emails received after the broadcast – not required in order for Authority to determine complaints – declined

This headnote does not form part of the decision.

Factual Background

[1] On 12 May 2005, under the protection of parliamentary privilege, National and Act Members of Parliament accused then Associate Minister of Education, the Hon David Benson-Pope, of bullying students while he was teaching at Dunedin’s Bayfield High School in the 1980s.

[2] Mr Benson-Pope categorically denied the allegations.

[3] The following day on Nine to Noon, a magazine-style current affairs show broadcast on National Radio, host Linda Clark interviewed an anonymous man who said that he was one of the students bullied by Mr Benson-Pope. The man made a number of allegations, including that:

• Mr Benson-Pope on one occasion caned him until he drew blood
• Mr Benson-Pope picked on him
• Mr Benson-Pope appeared to enjoy administering corporal punishment to students.

[4] Mr Benson-Pope made a formal complaint to RNZ, alleging that the broadcast was unbalanced, inaccurate and unfair. The essence of Mr Benson-Pope’s complaint was that:

• the broadcast was unbalanced, as nothing supporting his side of the story was included
• it was unfair to broadcast damaging allegations by an unidentified accuser
• the allegations were untrue.

[5] RNZ declined to uphold the complaint, and Mr Benson-Pope referred the matter to the Authority.

Mr Benson-Pope’s Procedural Requests

[6] Through his lawyer, Mr Benson-Pope submitted that in determining the complaint the Authority should exercise its powers pursuant to section 12 of the Broadcasting Act 1989 and sections 4B and 4C of the Commissions of Inquiry Act 1908. These provide:

Broadcasting Act 1989

12. Application of Commissions of Inquiry Act 1908—

Sections 4B, 4C, 4D, 5, 6, 7, 8, and 9 of the Commissions of Inquiry Act 1908 shall, for the purposes of the Authority's consideration of any complaint referred to it under section 8 of this Act, apply to the Authority—

(a) As if the Authority were a Commission of Inquiry established under the Commissions of Inquiry Act 1908; and

(b) As if the Authority's consideration of the complaint were an inquiry for the purposes of the Commissions of Inquiry Act 1908

Commissions of Inquiry Act 1908

4B.Evidence—

(1) The Commission may receive as evidence any statement, document, information, or matter that in its opinion may assist it to deal effectively with the subject of the inquiry, whether or not it would be admissible in a Court of law.

4C. Powers of investigation—

(1) For the purposes of the inquiry the Commission or any person authorised by it in writing to do so may—

(a) Inspect and examine any papers, documents, records, or things

(b) 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.

(c) Require any person to furnish, in a form approved by or acceptable to the Commission, any information or particulars that may be required by it, and any copies of or extracts from any such papers, documents, or records as aforesaid. 

[7] Mr Benson-Pope submitted that pursuant to section 4C the Authority should require RNZ to produce:

• the field tape of the interview
• all relevant pre-broadcast records and documents
• copies of all emails received by the programme after the show was broadcast.

[8] Mr Benson-Pope submitted that the Authority would not be able to determine the complaint effectively unless this material was made available.

[9] In support of his application, Mr Benson-Pope relied on the decision of the Court of Appeal in Comalco NZ v Broadcasting Standards Authority (1995) 9 PRNZ 153 (CA) PDF (714.73 KB). He submitted this was authority for the proposition that the Authority required, and was entitled to seek from RNZ, this additional material in order to consider the complaint properly. The essence of the Comalco decision that Mr Benson-Pope relied on was the Court’s statement that:

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 (at p.161)

[10] Other than citing Comalco, Mr Benson-Pope did not provide specific submissions as to how the additional material potentially advanced his arguments that the broadcast breached the Radio Code, or how he anticipated it would assist the Authority in its consideration of the nominated standards.

RNZ’s Response

[11] RNZ initially declined to release the field tape of the interview, as the interview had proceeded on the basis that the interviewee would remain anonymous. Releasing the tape, it said, would compromise this anonymity. RNZ stated that it took seriously undertakings given as to anonymity.

[12] Following receipt of further submissions from Mr Benson-Pope, however, RNZ agreed that it would release the field tape of the interview, but said it would delete from it any references that would lead to the identification of the interviewee.

[13] RNZ submitted that the other material requested by Mr Benson-Pope was not required by the Authority. It noted, however, that if the Authority considered that the information was required, it would provide such information as soon as possible.

Further Correspondence

[14] Mr Benson-Pope contested RNZ’s argument that it was entitled to preserve the anonymity of the interviewee. He maintained that RNZ had provided no information other than a “bald assertion” to establish that it was obliged to respect the interviewee’s anonymity.

[15] Mr Benson-Pope submitted that RNZ needed to provide:

…details of all the circumstances leading up to and relevant to understanding as to anonymity: when was such an understanding reached; what were the terms of that understanding; was the understanding in writing or recorded in some other form; what were the reasons for seeking anonymity; what were the reasons for Radio New Zealand reaching such an “understanding” as to anonymity; what if such an understanding had not been reached.

[16] “It is only when this information is provided”, Mr Benson-Pope concluded, “that the claimed ‘obligation’ as to anonymity can be assessed”. He invited the Authority to make a decision as to whether RNZ was required to produce the material requested.

Authority's Determination

[17] The complainant has requested that the Authority exercise its powers under section 12 of the Broadcasting Act 1989 and sections 4B(1) and 4C(1)(b) of the Commissions of Inquiry Act 1908. He requested that the Authority require RNZ to produce specified material, which he maintains is relevant to the determination of the complaint.

[18] The Authority has previously held, in Decision No. 2002-179, that the intent of these statutory provisions is to allow the Authority to require the production of evidence only if that evidence is necessary to enable the Authority to deal effectively with the subject of the complaint. That is the basic test that it applies in the present case.

[19] There are a number of issues that the Authority must address:

• should RNZ be required to produce a field tape of the interview with Mr Benson-Pope’s accuser?
• if the tape must be produced, is RNZ entitled to withhold the identity of the interviewee?
• should RNZ be required to produce all pre-broadcast documentation in its possession relating to the interview in question?
• should RNZ be required to produce copies of all the emails it received following the broadcast of the interview?

Field tape

[20] RNZ’s agreement to produce the field tape of the interview, albeit with any identifying references removed, has made unnecessary a decision from the Authority on this issue. In light of RNZ’s willingness to produce the tape, the Authority does not intend to make a finding. It will await receipt of the tape, provide a copy to the complainant, and seek further submissions on the substantive complaint.

Anonymity of interviewee

[21] Despite RNZ’s agreement to produce a field tape, edited only to remove details that would identify the interviewee, Mr Benson-Pope continues to maintain that the full tape must be provided. He has submitted that RNZ has provided no evidential basis for its assertion that a genuine assurance of confidentiality was given to the interviewee, and in any event, RNZ is not automatically entitled to rely on the right to protect the identity of its sources.

[22] First, the Authority records its acceptance that RNZ gave the interviewee an assurance of confidentiality. While Mr Benson-Pope has questioned whether RNZ gave a genuine assurance, he has provided no basis for his assertion. The Authority sees no reason to doubt that RNZ gave such an assurance, particularly given its continuing efforts to protect that anonymity.

[23] The Authority therefore proceeds on the basis that RNZ gave the interviewee an assurance of confidentiality.

[24] The Authority also observes that this decision is not concerned with the issue whether RNZ should have told Mr Benson-Pope the identity of the interviewee at the time of, or prior to, the broadcast. That issue will be determined as part of the substantive complaint. The only issue at stake here is whether the Authority needs to know the identity of the interviewee to determine whether this broadcast breached the Radio Code.

[25] In some circumstances, the identity of an otherwise anonymous interviewee might be relevant to an assessment of whether the accuracy standard has been breached. Of particular relevance is Guideline 6d to Standard 6, which states:

Broadcasters shall ensure that the editorial independence and integrity of news and current affairs is maintained.

[26] Accepting, therefore, that the identity of a news source might be relevant in assessing whether a broadcaster took reasonable steps to verify a source’s integrity and credibility, does this make the information necessary to determine the complaint effectively? There are two factors that cause the Authority to doubt that this is the case.

[27] First, the complainant has provided no compelling argument that the information is in any way critical or fundamental to this case.

[28] Second, the Authority is able to address any evidential gap left by the anonymity of the interviewee by other means. As noted above, the only basis on which it considers the information would be relevant is in relation to its assessment of whether RNZ took sufficient steps to satisfy itself of the integrity and credibility of the interviewee. The Authority will therefore seek further information from RNZ, requesting it to provide details of the steps that it took to verify the credibility of the interviewee. This is consistent with the Authority’s approach in Decision No. 2004-115 (see paragraph [111] of that decision) which also involved the broadcast of allegations by an anonymous interviewee. Receipt of this information will enable the Authority to assess whether RNZ’s pre-broadcast investigations were reasonable in terms of ensuring the integrity of the story, without requiring RNZ to disclose the identity of its source.

[29] Accordingly, for the above reasons, and having taken into account the submissions received, the Authority concludes that the identity of the interviewee is not necessary for the effective determination of the complaint.

[30] Even if the information was necessary for the effective determination of the complaint, the Authority would still have to consider the compelling counter-argument based on a journalist’s right to protect the confidentiality of news sources.

[31] There is no doubt that the freedom of the media to protect the identity of sources who wish to remain anonymous is an important principle in a democratic society, one that is well-recognised and often protected by the courts. As stated by the European Court of Human Rights:

• The court recalls that freedom of expression constitutes one of the essential foundations of a democratic society and that the safeguards afforded to the press are of particular importance.
• Protection of journalistic sources is one of the basic conditions for press freedom, as is reflected in the laws and professional codes of conduct in a number of … states and is affirmed in several international instruments on journalistic freedoms. Without such protection, sources may be deterred from assisting the press in informing the public on matters of public interest. As a result the vital public watchdog role of the press may be undermined and the ability of the press to provide accurate and reliable information may be adversely affected.
• Goodwin v United Kingdom (1996) 22 EHRR 123, cited with approval in Ashworth Security Hospital v MGN Limited [2002] UKHL 29 (House of Lords)

[32] Courts have consistently found that before disclosure will be ordered, the necessity for the restriction on press freedom must be convincingly established. These principles are reflected in our own evidence law; s35 of the Evidence Amendment Act (No. 2) 1980 provides (in summary) that:

• A witness may be excused from giving evidence or providing a document that would breach a confidence given to a person with whom they have a “special relationship”
• In deciding whether the witness should be excused, the Court shall consider whether the public interest in having the evidence disclosed is outweighed by the public interest in preserving the confidence given, and should particularly take into account:
  • the significance of the information in determining the issues to be determined
  • the nature of the special relationship and confidence given
  • the likely effect of the disclosure

[33] New Zealand courts have recognised that this provision applies to a journalist’s relationship with a source. A recent High Court case has affirmed that in this balancing exercise the public interest in protecting sources is high, and it will only be in a special case that disclosure will be compelled.¹

[34] It is also noteworthy that the Evidence Bill, currently before the Justice and Electoral Select Committee, specifically recognises the special relationship between a journalist and source. Clause 64 of the Bill states (in summary):

• The starting point is that when a journalist has promised not to reveal an informant’s identity, he or she will not be compelled to disclose it
• A High Court judge can order disclosure if satisfied that the public interest in disclosure outweighs:
  • any likely adverse effect of the disclosure on the informant or other person
  • the public interest in the communication of facts and opinion to the public by the news media, and the ability of the news media to access sources of facts.

[35] In light of these principles, even if the Authority were to conclude that the information was “necessary”, it would still have to determine whether public interest in the disclosure of the interviewee’s identity outweighed the public interest in allowing the media to preserve the confidentiality of its sources.

[36] For the same reasons as expressed in paragraphs [27] and [28] above, the Authority concludes that in the circumstances of this particular case, the public interest in allowing RNZ to protect its source outweighs the public interest in the disclosure of that information. While clearly there is a public interest in facilitating a complainant’s rights to pursue a complaint under the Broadcasting Act, the factors noted above suggest that in the particular circumstances of this case, that interest is insufficient to require disclosure.

[37] Weighed against the considerable public interest in allowing the media to broadcast information from anonymous sources – especially in cases of high public interest involving elected representatives – the Authority concludes that there would be no basis to order the disclosure of the interviewee’s identity.

[38] Accordingly, the Authority concludes that RNZ may provide the field tape of the interview, removing references that could identify the interviewee.

[38] Accordingly, the Authority concludes that RNZ may provide the field tape of the interview, removing references that could identify the interviewee.

Pre-broadcast documentation

[39] Mr Benson-Pope has asked for copies of “research notes, file notes, minutes, and all other material relevant to the broadcast of the interview”.

[40] The Authority acknowledges the Court of Appeal’s finding in Comalco that pre-broadcast material may be relevant to the issue of balance, as it could provide evidence of the way in which material had been selected for broadcast. The Authority considers, however, that the present case is outside the range of situations to which that principle could reasonably be applied. The programme at issue in this case is an edited interview with a single subject, rather than a scripted current affairs programme carefully constructed from a range of sources. In these circumstances, the Authority considers that the field tape of the interview will be sufficient to address any questions surrounding the selection of material for broadcast.

[41] For this reason, the Authority considers that the pre-broadcast material sought is not required for the effective determination of the complaints.

Emails received subsequent to the broadcast

[42] Mr Benson-Pope’s final request is for copies of all emails received by RNZ subsequent to the broadcast.

[43] On a number of occasions following the broadcast, on the same Nine to Noon show, the host read out emails from listeners communicating their views about the interview in question. The host made it clear that the vast majority of the emails received were supportive of Mr Benson-Pope and condemned the interviewer, the interviewee, and the interview as a whole. The host read out a number of the critical emails, and then made an exaggerated effort to locate an email that was positive about the interview.

[44] There is no doubt, in the view of the Authority, that listeners would have appreciated that overwhelmingly, other listeners were highly critical of the broadcast.

[45] The Authority considers that the additional un-broadcast emails would not assist Mr Benson-Pope’s arguments. Producing all the emails would demonstrate the exact number of emails that were supportive of him, and what they said. But in circumstances where the host made it abundantly clear that almost all the emails strongly supported Mr Benson-Pope – and indeed read out a significant number – the Authority considers that this would not advance its consideration of his complaint.

[46] For these reasons, the Authority considers the emails are not necessary for the effective determination of the complaint, and declines to order their production.

For the above reasons the Authority declines the complainant’s request, pursuant to section 12 of the Broadcasting Act 1989, for production of:

• all relevant pre-broadcast records and documents
• copies of all emails received by the programme after the show was broadcast
• the identity of the interviewee

It declines to determine the complainant’s request for production of the field tape in light of RNZ’s offer to produce a copy.

Signed for and on behalf of the Authority

Joanne Morris
Chair
22 September 2005

Appendix

The Authority considered the following correspondence in determining this complaint:

1. The Hon David Benson-Pope’s formal complaint – 13 May 2005
2. Mr Benson-Pope’s confirmation of formal complaint – 16 May 2005
3. RNZ’s acknowledgement of the formal complaint – 18 May 2005
4. RNZ’s decision on the formal complaint – 14 June 2005
5. Mr Benson-Pope’s referral to the Authority – 13 July 2005
6. RNZ’s submissions on Mr Benson-Pope’s requests for production of additional material –
   28 July 2005
7. Further correspondence from Mr Benson-Pope – 9 August 2005
8. Further correspondence from RNZ – 17 August 2005
9. Further correspondence from Mr Benson-Pope – 25 August 2005
10. Further correspondence from RNZ – 30 August 2005
11. Further correspondence from Mr Benson-Pope – 31 August 2005

¹R v Cara & Kelman, Unreported, High Court Auckland, 2 June 2004, CRI 2004-004-006560