BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 2 (law and order) – programme did not show the group breaking into the farm – broadcaster did not encourage viewers to break the law by screening the footage – public interest in showing mistreatment of animals – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An item on Close Up, broadcast on TV One at 7pm on Friday 23 July, reported on new footage of pigs at a Levin farm that had been the subject of a previous TVNZ broadcast on animal welfare. The presenter introduced the item, stating that an animal welfare group, Open Rescue, had gone “undercover at [owner’s name]’s farm on the weekend and again filmed distressed and unhealthy animals”.

[2]   A Close Up reporter stated that Open Rescue “say they gained access to one of the many sheds [on the farm] through an unlocked door” and that they immediately found evidence of unhealthy animals. Footage was shown during the item of the injured and sick animals; this was provided by Open Rescue, not filmed by TVNZ.

[3]   The item included comments from Open Rescue and a vet with expertise in pigs from Freshpork New Zealand, and stated that the owner of the farm had refused to comment or appear in the programme.

[4]   Following the item, the presenter interviewed a representative from SAFE (Save Animals From Exploitation) and the CEO of the New Zealand Pork Industry Board.

Complaints

[5]   Robin Grieve and Robert Young made formal complaints to Television New Zealand Ltd, the broadcaster, alleging that the item breached broadcasting standards.

Robin Grieve’s complaint

[6]   Mr Grieve argued that the programme breached the law and order standard because “the footage of the pigs was shot by criminals who were in the act of breaking trespass laws... TVNZ by screening footage shot in this way is condoning the action of trespass.” He maintained that reasonable viewers would have taken from the item that “it is okay to illegally enter a building to get footage for TVNZ to screen if it exposes something you are concerned about”, which he considered was contrary to the broadcaster’s responsibility under Standard 2.

[7]   Mr Grieve considered that showing the footage was not in the public interest because, he argued, there were 200 pigs on the farm and the programme only showed five pigs which “seemed quiet and settled”. He argued that this was unbalanced because viewers were not shown the other 195 pigs. Further, TVNZ did not scrutinise Open Rescue during the programme “which gave a distorted view”, Mr Grieve said.

Robert Young’s complaint

[8]   Mr Young argued that the item breached Standard 2 (law and order) because it encouraged “trespassing and breaking and entering to get a story”. He said, “What the footage shows is disturbing and sensationalised, but this activity is not illegal. Obtaining this footage involved trespassing on private land and breaking into areas closed to the public.”

Standards

[9]   TVNZ assessed the complaints under Standards 2 and 4 of the Free-to-Air Television Code of Broadcasting Practice, which provide:

Standard 2 Law and Order

Broadcasters should observe standards consistent with the maintenance of law and order.

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance 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.

Broadcaster's Response to the Complainants

[10]   Referring to the Authority’s practice note on Standard 2 (law and order), TVNZ argued that for a breach to occur, a broadcast not only had to condemn a particular law, but also actively promote disrespect for it. It noted that the Authority had previously stated that the intent behind the law and order standard was to prevent broadcasts which encouraged viewers to break the law, or which otherwise promoted, glamorised or condoned criminal activity.

[11]   TVNZ maintained that the item was not intended to condone or glamorise criminal behaviour. It noted that the “offending footage” was not taken by TVNZ but was supplied to Close Up by the animal welfare group, Open Rescue, “which went undercover and obtained the footage”. This was explained in the item’s introduction, it said.

[12]   The broadcaster considered that “the purpose of screening this footage was to expose the incidence of distressed and unhealthy animals within New Zealand’s pork industry,” and that “Close Up did not condone the means of obtaining the footage or the behaviour it exposed; rather the programme screened the footage in the public interest of forcing action to be taken regarding the pigs’ living conditions.”

[13]   TVNZ maintained that, although the item showed footage obtained by covert means, it did not encourage viewers to adopt similar behaviour. It concluded that nothing in the item encouraged viewers to break the law, or otherwise promoted, glamorised or condoned criminal activity, and it declined to uphold the Standard 2 complaints.

[14]   TVNZ considered Standard 4 (controversial issues) in response to Mr Grieve’s argument that the item had only shown five out of 200 pigs at the farm. It noted that the Authority had previously defined a controversial issue of public importance as something that would have a “significant potential impact on, or be of concern to, members of the New Zealand public” (e.g. Powell and TVWorks¹), and accepted that the mistreatment of farm animals was such an issue.

[15]   TVNZ noted that footage was shown in the item of many “ailing animals in their pens”, and maintained that it was “clearly not different footage of the same animal”. It noted that the pig expert from Freshpork New Zealand had commented in the item, after seeing the footage, that “in 20 years of practice it would be unusual to see two animals like that (referring to the animal with the badly infected ear and the sow with the damaged foot)”. However, they were both found in the one shed, TVNZ said.

[16]   The broadcaster disagreed that it was necessary to point out in the item that there may have been healthier animals in the shed. TVNZ considered that balance had been achieved by the comments from the SAFE representative and the CEO of the New Zealand Pork Industry Board. It noted that the farmer responsible for the animals in the footage had declined to take part in the programme.

[17]   Accordingly, TVNZ concluded that “all appropriate perspectives” were presented in the item, and it declined to uphold Mr Grieve’s complaint under Standard 4.

Referrals to the Authority

[18]   Dissatisfied with the broadcaster’s response, Mr Grieve and Mr Young referred their complaints to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Mr Grieve’s referral

[19]   Mr Grieve considered that there was “no better way to condone an activity or actively promote disrespect of the law than to reward those who broke it by screening on prime time television footage they shot while doing it”. He argued that TVNZ was not honest with viewers in stating that the group was “undercover”, and that it had not made any arguments as to why the item did not condone or glamorise criminal behaviour. Further, he argued that whether the group entered through an open door was irrelevant as they were trespassing on private property and had no lawful purpose on the farm or in the building. TVNZ did not acknowledge that a law had been broken, he said, and the programme did not state that TVNZ did not condone breaking the law to obtain the footage. He therefore considered that TVNZ should have upheld his Standard 2 complaint.

[20]   Mr Grieve stated that he had not complained under Standard 4 (controversial issues). However, he did consider that the item was unbalanced because “we only saw what the group who broke in wanted us to see,” and it was dangerous to give “such a biased group editorial control over what is filmed”.

[21]   The complainant said that he had raised the issue of fairness to “point out how broadcasting standards are lowered when illegally obtained footage filmed by groups with an agenda is used.” He maintained that public interest was not a defence to condoning illegal activity.

Mr Young’s referral

[22]   Referring to fairness, Mr Young maintained that “the footage for both Close Up programmes was obtained by activists who trespassed on private property and broke into an area that was restricted for health reasons. The animals were stirred up to create a stressed state and only footage given to Close Up by this group was aired.” He argued that Close Up had painted a picture of the entire pork industry based on the views of this one group and SAFE.

[23]   Mr Young considered that by using footage obtained illegally, TVNZ had established a precedent that would encourage any group with an agenda to “believe that this illegal activity will be condoned by TVNZ and will be aired”. He argued that at no time had Close Up told viewers that the footage was obtained by illegal means, and that TVNZ had profited from using illegally obtained footage.

[24]   Mr Young submitted that Close Up should apologise to the farmer in question for the break-in, and pledge to the New Zealand public that their journalists would use only footage that was legally obtained.

Broadcaster’s Response to the Authority

[25]   With regard to Mr Young’s complaint, TVNZ argued that he had raised Standard 6 (fairness) only in his referral and not in his original complaint. It considered that he was also making new allegations about the pigs being “stirred up” and about Close Up profiting from the footage and screening other illegal footage. It contended that, as these arguments were not raised in his original complaint they could not now be considered.

[26]   TVNZ made the same observation with regard to Mr Grieve’s complaint – that he had not complained about fairness in his original complaint and had only raised it in his referral, and therefore it could not be considered by the Authority.

Complainant’s Final Comment

[27]   Mr Young was of the view that legal technicalities should not prevent his complaint being fairly considered by the Authority. He argued that the farmer involved in the story had not broken the law but was “crucified” in two Close Up items, which was unfair because “naming him destroyed his reputation and severely affected his livelihood”. Mr Young maintained that “the pigs were awakened... and the bright lights and noise alarmed them”, and that the pig with an infected ear was receiving vet treatment and was “singled out for dramatic effect”.

Authority's Determination

[28]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Preliminary Matters

[29]   Both complainants explicitly raised Standard 2 (law and order) in their original complaints. TVNZ assessed the complaints under Standard 2 and also under Standard 4 (controversial issues) in relation to Mr Grieve’s complaint. Both complainants then made arguments about fairness in their referrals.

[30]   In our view, it is clear from the original formal complaints that both Mr Grieve and Mr Young intended to complain under the law and order standard. They did not raise Standard 6 (fairness) in their original complaints, either implicitly or explicitly, such that TVNZ should have considered the complaints under Standard 6. Accordingly, we have no jurisdiction to consider the complaints with reference to fairness, and we have limited our consideration to Standard 2 (law and order).

[31]   Mr Young also referred to a second Close Up item in his referral and his final comment. Section 6 of the Broadcasting Act 1989 requires that formal complaints relate to a specified programme. Mr Young’s original formal complaint clearly identified Close Up on 23 July 2010, and did not refer to any other broadcast. Accordingly, we only have jurisdiction to consider Mr Young’s complaint in relation to Close Up on 23 July.

Standard 2 (law and order)

[32]   The complainants’ concern was that by broadcasting the footage of the animal welfare group on the farm, TVNZ was encouraging illegal acts, namely trespass or breaking and entering.

[33]   The Authority cannot assume the role of a criminal court and determine whether a crime has been committed; its task is to determine whether the programme breached broadcasting standards. The Authority has previously stated that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity (see, for example, Keane and TVNZ²).

[34]   We note that the footage included in the item did not show Open Rescue entering the farm or the shed where they filmed the pigs; the item only showed a shot of a hand pushing open a shed door, as the reporter said, “They say they gained access to one of the many sheds through an unlocked door”. The item in no way focused on the fact that the group had illegally entered the property, and we do not consider that the broadcaster encouraged viewers to act similarly simply by broadcasting the camera footage obtained by Open Rescue. The focus of the footage and of the item was sick and injured animals, and in our view there was public interest in alerting viewers to this issue of animal welfare.

[35]   Accordingly, we find that the item did not encourage viewers to break the law, or promote, glamorise or condone criminal activity. We therefore decline to uphold the Standard 2 complaints.

For the above reasons the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

Peter Radich
Chair
23 November 2010

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

Robin Grieve’s complaint

1.           Robin Grieve’s formal complaint – 25 July 2010

2.          TVNZ’s response to the complaint – 20 August 2010

3.          Mr Grieve’s referral to the Authority – 4 September 2010

4.          TVNZ’s response to the Authority – 11 October 2010

Robert Young’s complaint

1.           Robert Young’s formal complaint – 23 July 2010

2.          TVNZ’s response to the complaint – 20 August 2010

3.          Mr Young’s referral to the Authority – 23 August 2010

4.          TVNZ’s response to the Authority – 11 October 2010

5.          Mr Young’s final comment – 18 October 2010

¹Decision No. 2005-125

²Decision No. 2010-082