BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 5 (accuracy) – item was a factual programme - interviewee's statements distinguishable as analysis – exempt from accuracy under guideline 5a – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   During a segment called "Ideas" on Sunday with Chris Laidlaw, broadcast on Radio New Zealand National on the morning of 31 May 2009, the host interviewed a sociologist, Dr Scott Hamilton, about anti-Semitic fringe groups in New Zealand that were seeking to deny or downplay the gravity of the Holocaust. The host introduced the segment by saying:

As Professor Bartov said, the Holocaust became a defining event in the 20th Century. The scale of the horror is beyond question, unequalled by any other episode of genocide, both in scale and in morbid intent. But as sociologist Scott Hamilton has discovered, there are groups in New Zealand, as elsewhere, that do attempt to question and downplay the Holocaust.

What are their motives? I caught up with Scott Hamilton recently and began by asking him about the extent of Holocaust denial in New Zealand.

[2]   Dr Hamilton stated that, in New Zealand, anti-Semitism had traditionally been a minority viewpoint along with Holocaust denial and that one tended to flow on from the other. He went on to say that his worry was that the country was getting a new generation of people who were becoming attracted to anti-Semitic discourses in relation to global events, such as the global financial crisis and the Israeli/Palestine conflict.

[3]   The interviewee also talked about a New Zealand magazine called Uncensored, and his concerns that the magazine was mixing credible material written by respected scholars with extreme material, such as anti-Semitic discourse.

[4]  Towards the end of the interview, Dr Hamilton stated:

I certainly think there are hardcore Holocaust deniers active in New Zealand, and they’re always trying to get their message out there. Quite a key figure is Kerry Bolton. He has close connections with Frederick Toben and the Adelaide Institute. Frederick Toben has been in the news in the last couple of weeks because he’s been sent to jail for Holocaust denial in Australia, and Toben and Bolton work quite closely, and Bolton’s been absolutely, very industrious in pushing these ideas in New Zealand.

And [Bolton has] attempted to insinuate himself into things like the anti-war movement in New Zealand, the Palestine Solidarity movement. He’ll go along to demonstrations and he’ll present himself as a legitimate critic of Israeli foreign policy and he’ll slide from that to anti-Semitism and Holocaust denial. And there have been isolated instances of, especially young people, in the anti-war movement and Palestine Solidarity movement who have been taken in by this stuff.

[5]  The host questioned Dr Hamilton about the theory that New Zealand was originally settled by an advanced civilisation of Europeans before Māori "invaders" wiped them out. Dr Hamilton’s response included the following statement:

Well, there’s an intersection between the people promoting these ideas... the Celtic New Zealand thesis was actually created by Kerry Bolton, who, of course, is promoting anti-Semitism and Holocaust denial.

[6]  The interview ended with Dr Hamilton saying that people promoting Holocaust denial and anti-Semitism needed to be criticised for their views.

Complaint

[7]   Kerry Bolton made a formal complaint to Radio New Zealand Ltd (RNZ), the broadcaster, alleging that the programme breached Standard 5 (accuracy). The complainant argued that the claims made by Dr Hamilton that he was anti-Semitic and actively promoted Holocaust denial were inaccurate.

[8]  Dr Bolton outlined a further five statements allegedly made by Dr Hamilton that he considered to be inaccurate, namely that:

• he had worked closely with Frederick Toben
• he was the “inventor” of the Celtic New Zealand theory
• he had infiltrated the anti-war movement and had shown up to meetings to air his views
• he had infiltrated the Palestine Solidarity movement
• he had exercised influence over unwary youth.

[9]   With respect to Dr Hamilton's statements about Uncensored magazine being an anti-Semitic medium, Dr Bolton said that the magazine’s editor was "a New York Jew" and "a veteran of the US civil rights movement". He considered that this should have been pointed out to listeners.

Standards

[10]  Standard 5 and guideline 5a of the Radio Code of Broadcasting Practice are relevant to the determination of this complaint. They provide:

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Guideline 5a

The accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

Broadcaster's Response to the Complainant

[11]  RNZ noted that Standard 5 only applied to news, current affairs and factual programmes. It argued that "Ideas" fell into the genre of "society and people programming", as it was a weekly segment that explored a range of philosophical, social, historical and environmental ideas. As such, the broadcaster considered that the "Ideas" segment was not news, current affairs or factual programming, and it declined to uphold the accuracy complaint.

[12]  Alternatively, if the accuracy standard did apply, the broadcaster said that Dr Hamilton stood by all of his statements.

Referral to the Authority

[13]  Dissatisfied with RNZ's response, Dr Bolton referred his complaint to the Authority under Section 8(1B)(b)(i) of the Broadcasting Act 1989. He considered RNZ's argument that "Ideas" was not a factual programme to be disingenuous. The complainant also contended that a broadcaster could not simply assert that an interviewee stood by their comments to prove the accuracy of them.

Further Information Requested by the Authority

[14]  The Authority asked RNZ to outline the basis for the statements made by Dr Hamilton which Dr Bolton alleged were inaccurate.

[15]  With respect to the assertion that Dr Bolton exercised influence over unwary youth, the broadcaster argued that the comment was not a statement of fact, but an expression of "expert opinion" to which the accuracy standard did not apply. Likewise, it contended that Dr Hamilton’s comment that Dr Bolton was the inventor of the Celtic New Zealand theory could not be assessed under Standard 5 because it was a statement based on Dr Hamilton's professional opinion.

[16]  RNZ provided the Authority with the following comments from Dr Hamilton in relation to each of the allegedly inaccurate statements.

Dr Bolton had worked closely with Frederick Toben

[17]  Dr Hamilton stated that Frederick Toben was the founder and director of the Adelaide Institute, an Australian organisation which devoted its energies to denying the Holocaust. He contended that Dr Bolton was listed until recently on the Adelaide Institute’s website as the organisation's New Zealand Associate. Dr Hamilton argued that Dr Bolton had presented at least one paper at a conference of the Institute and that until recently the organisation had made a number of Dr Bolton's works available on its website.

[18]  Dr Hamilton contended that there were a number of references in the media and on the internet that attested to the fact that Dr Bolton was closely associated with Toben's Institute. As an example, Dr Hamilton referred to the Waikato students’ magazine Nexus which he said ran a collection of quotes from Dr Bolton, including quotes from texts he published on the Adelaide Institute's website. Dr Hamilton also stated that, in 2006, Dr Bolton’s connections with the Adelaide Institute were the subject of a lengthy article on the "Fightdemback" website called "Kerry and the Holocaust deniers"¹. The article discussed the Adelaide Institute, Holocaust denial and Dr Bolton’s material on the Institute’s website. He said the site specialised in analysing the far right in Australia.

[19]  Dr Hamilton also provided a 2008 article called "Kerry Bolton: The Man, The Myth, The Manmyth", from the website of the Students' Association of Unitec². The article referred to Dr Bolton as a Holocaust denier and contained a quote from the website of the Adelaide Institute attributed to Dr Bolton calling the Holocaust "fictitious blather"³.

[20]  The article also contained quotes from another interview with Dr Bolton by Nexus magazine, which included the following exchange:

Nexus:   Okay, but what I’m asking is, would you describe yourself as a Holocaust denier?

Bolton:   Oh no, no. No. Not as such.

Nexus:   What are your views on it then?

Bolton:   Oh, I believe that certain aspects of it can be questioned, as can any part of
             history.

[21]  Dr Hamilton argued that Dr Bolton did have close connections with the Adelaide Institute and therefore had close connections with its director Mr Toben. He provided the Authority with links to websites containing the information and articles he referred to. However, he pointed out that the link to the Adelaide Institute’s website no longer led to the information, as it was now a dead link.

Dr Bolton was the inventor of the Celtic New Zealand theory

[22]  Dr Hamilton stated that this claim was part of an exposition on the intellectual history of the notion that white people, often identified as Celts or pre-Celts, settled New Zealand in ancient times before being conquered by Māori. He said he was concerned with tracing the genealogy of this idea and that the best-known expression of the idea occurred in Martin Doutre’s book "Ancient Celtic New Zealand”, which was published in 1999 by De Nanann Publishers. He said that Dr Bolton’s texts, "Ngati Hotu: the White Warrior Tribe, Legends of the Patupaiarehe – NZ’s White Fey folk”, and "Lords of the Soil: the story of the turehu”, were all published before 1999, and all put forward the notion of a pre-Māori people of Celtic origins settling New Zealand. Dr Hamilton considered that Dr Bolton had published the idea first and that he "demonstrably deserves to be considered the inventor of what is now known as the Celtic New Zealand theory”.

Dr Bolton had infiltrated the anti-war movement and the Palestine Solidarity Movement, and had shown up at meetings and aired his views

[23]  Dr Hamilton stated that the issue of Dr Bolton infiltrating the anti-war movement should be considered with his infiltration of the Palestine Solidarity Movement, as they were both anti-war movements.

[24]  Dr Hamilton argued that Dr Bolton’s attempts to infiltrate the anti-war movement, and therefore the Palestine Solidarity Movement were a “matter of public record”. He stated that in 2003, Dr Bolton had turned up to several events organised by Wellington anti-war groups, including Peace Action Wellington, and distributed leaflets in the name of a group called “Anti-Zionist Action”. Dr Hamilton contended that this group was regarded as a front for Dr Bolton and a small group of his supporters.

Dr Bolton exercised influence over unwary youth

[25]  Dr Hamilton stated that this claim was partly a matter of opinion. He argued that Dr Bolton had held leadership positions within organisations with overwhelmingly youthful memberships. For instance, Dr Hamilton said in 2004 Dr Bolton became the National Secretary of the National Front, which he argued was a far right political organisation that recruited young people from the “skinhead gang scene”. Dr Hamilton argued that it was reasonable to consider that, in such a position, Dr Bolton was able to wield “unhealthy” influence over youths.

Complainant’s Response to the Further Information

Dr Bolton had worked closely with Frederick Toben

[26]  Dr Bolton argued that he had never “presented” a paper to the Adelaide Institute and that he was not listed as the New Zealand “Associate” on the Institute’s website. He stated that he had not been to Australia in over 20 years.

Dr Bolton was the inventor of the Celtic New Zealand theory

[27]  Dr Bolton argued that he had not heard of the theory about Celts until reading Martin Doutre’s book. He contended that the authoritative text on such theories was Dr K R Howe’s 2003 book “The Quest for Origins”. Dr Bolton pointed out that he was not mentioned in the book’s discussions on the theory, but that Dr Doutre and others were.

[28]  Dr Bolton argued that none of the books referred to by Dr Hamilton “put forward a Celtic theory” and that all apart from one of the books mentioned by Dr Hamilton were published after 1999. He maintained that he was not the inventor of the Celtic New Zealand theory.

Dr Bolton had infiltrated the anti-war movement and the Palestine Solidarity Movement, and had shown up at meetings and aired his views

[29]  Dr Bolton stated that he and his wife had attended a Wellington anti-war protest in 2003 which was attended by several hundred people. He contended that there were people from many different groups, including anarchists, Trotskyists and Maoists, and ordinary anti-war liberals, and that it was a nonsense that he had tried to infiltrate any anti-war movements.

[30]  With reference to Dr Hamilton’s claim that he had attended “several events” in 2003, Dr Bolton argued that this was incorrect and said he was unsure what events Dr Hamilton was referring to.

Dr Bolton exercised influence over unwary youth

[31]  Dr Bolton noted that Dr Hamilton had claimed he had, at times, held leadership positions within organisations with overwhelmingly youthful memberships. He pointed out that, apart from referring to the National Front, Dr Hamilton did not name any other organisations.

[32]  Dr Bolton stated that he was the Secretary for the National Front organisation for a year in 2004, but left after he could not change the organisation’s course with respect to race relations. He stated that he had explicitly opposed racist and nazi-esque influences in the organisation and that he could provide statements to that effect from ex-members if necessary.

[33]  Dr Bolton argued that there was no basis for the claim that he exercised an unhealthy influence over unwary youth in the National Front or in any other organisation. He maintained that Dr Hamilton’s statements were inaccurate and in breach of Standard 5.

Additional Information Requested by the Authority

[34]  The Authority requested background information from the broadcaster about Dr Hamilton’s credentials so that it could get a better understanding of why he was selected to speak as an expert on the topic of anti-Semitism and Holocaust denial in New Zealand.

[35]  RNZ stated that Dr Hamilton had been invited by the programme’s producer to participate in the programme “on the basis of the blogs he had written” connecting the New Zealand Celtic thesis to people promoting Holocaust denial.

[36]  The broadcaster asserted that Dr Hamilton had also been interviewed by other media.

Authority's Original Determination

[37]  A majority of the Authority considered that “Ideas” was a factual programme to which Standard 5 applied. The majority found that Dr Hamilton’s assertions were presented to listeners as categorical statements of fact which were material to the topic under discussion. However, the majority was unable to determine whether Dr Hamilton’s statements were accurate and it did not make a finding as to whether Dr Bolton was an active Holocaust denier.

[38]  Although it was unable to determine whether any of Dr Hamilton’s statements of fact were accurate, the majority turned to consider whether RNZ had made “reasonable efforts” to ensure that the statements made by Dr Hamilton were accurate. The majority concluded that RNZ did not make reasonable efforts to ensure that Dr Hamilton’s allegation that Dr Bolton was an active Holocaust denier was accurate and therefore upheld the complaint.

Broadcaster’s Appeal to the High Court

[39]  RNZ appealed the Authority’s decision to the High Court. Justice Joseph Williams issued his judgment on 19 July 2010.⁴

[40]  Justice Williams found that the Authority had erred in its application of Standard 5 and concluded that when determining an accuracy complaint, the Authority “must reach a finding of inaccuracy on one or more of the subject statements before proceeding to consider whether reasonable efforts have been made to ensure the inaccurate statement was accurate”.⁵ He allowed the appeal and referred the complaint back to the Authority for reconsideration.

Broadcaster’s Further Submissions

[41]  RNZ stated that the “Ideas” segment was a weekly programme that explored a range of philosophical, social, historical and environmental ideas. It said that the segment was categorised on its website in the genre of “Society and People”, which it argued was distinct from news and current affairs and factual programmes which were categorised under the heading “Science and Factual”.

[42]  The broadcaster reiterated its original contention that the accuracy standard did not apply to “Ideas”. It considered that “to apply the accuracy standard to such political speech and discourse is of itself an unreasonable limitation on the rights of the programme participant and broadcaster to freedom of expression”.

[43]  However, RNZ argued that if the Authority was going to consider the complaint under the accuracy standard, then the standard did not apply to Dr Hamilton’s comments as they were not statements of fact. It contended that if the statements were to be considered “facts”, they were not material points of fact, “as the thrust of the portion of the programme was Holocaust denial and not other secondary views around anti-Semitism or activists’ behaviour for example”.

[44]  The broadcaster stated that the following submissions represented, to the extent practicable, the knowledge held by Dr Hamilton and RNZ prior to broadcast with regard to the statements made by Dr Hamilton.

[45]  Turning to the individual accuracy points, the broadcaster was of the view that “there is no reasonable doubt as to the overwhelming evidence that Kerry Bolton can rightfully be described as a ‘Holocaust denier’”. It provided a number of documents as evidence to support its assertion, including: material on what the term “Holocaust” meant and what constituted Holocaust denial, a paper written by Dr Bolton that was published in 2000 called “Holocaust Myth: A Sceptical Enquiry”, two letters to the Listener magazine written by Dr Bolton, opinions by Dr Simone Gigliotti of Victoria University of Wellington and Professor Konrad Kwiet from Macquarie University in Australia about Dr Bolton’s writings, and information about Dr Hamilton’s prior knowledge of Dr Bolton’s “status as a Holocaust denier”.

[46]  With respect to Dr Hamilton’s statements about Dr Bolton having “close connections” with Frederick Toben and the Adelaide Institute, RNZ argued that the statements were not material to the topic of the Holocaust and Holocaust denial in New Zealand. It considered that, “Whether or not Kerry Bolton and Frederick Toben worked together ‘quite closely’ is a matter of opinion held by Dr Hamilton”, and that he had “sufficient and reasonable grounds to make the comments he did”. It provided supporting documentation including copies of items written by Dr Bolton formally contained on the website of the Adelaide Institute, one of which described Dr Bolton as the “Adelaide Institute’s New Zealand Associate”.

[47]  RNZ contended that Dr Hamilton’s statements about Dr Bolton attempting to “insinuate himself” into anti-war and Palestine Solidarity movements, going to demonstrations and airing his views with young people being “taken in by this stuff” were neither statements of fact nor facts material to the topic of the programme. It reiterated its argument that Dr Bolton was present at several anti-war events in 2003 and contended that his presence was criticised by “a number of members of the movement” including two leading members who it said could provide sworn affidavits if required.

[48]  The broadcaster provided an email from an anonymous Wellington Palestinian Group member stating that he knew of two occasions when Dr Bolton attended protests against the invasion of Iraq and had handed out pamphlets on behalf of a group called “the anti-Zionist Alliance”. The person also said that Dr Bolton and several of his supporters had turned up at a meeting of a group formed in response to, among other things, the desecration of Jewish grave stones, and that Dr Bolton had distributed leaflets “attacking ‘the left’ for its ‘alliance with the Zionists’”. RNZ stated that it would be prepared to provide a copy of the original email with the person’s details as long as their identity was not disclosed.

[49]  RNZ reiterated its argument that Dr Bolton had at various times held leadership positions within organisations with overwhelmingly youthful memberships. It contended that, “Given Bolton’s history of racist and anti-Semitic views in the activities outlined above, it was and is Dr Hamilton’s legitimate and reasonable conclusion that ‘... young people ... have been taken in by this stuff’”. It noted that Dr Bolton had used the phrase “exercise influence over unwary youth” in his original formal complaint, and that this was not what Dr Hamilton had actually said in the programme.

[50]  Looking at Dr Hamilton’s statement that “the Celtic New Zealand thesis was actually created by Kerry Bolton”, the broadcaster again argued that the statement was not material to the topic under discussion. It provided a copy of Dr Bolton’s publication called “Lords of the Soil”, which it said preceded the best-known expression of the thesis by Martin Doutre and said that Dr Hamilton considered that Dr Bolton’s views as expressed in the publication were within the ambit of the term “Celtic New Zealand thesis”.

[51]  RNZ noted that Dr Bolton’s formal complaint had actually stated, “Hamilton, by necessity must distort and lie and exaggerate concerning the views and significance of the individuals he is smearing”. It contended that Dr Bolton had not argued that Dr Hamilton’s statement, “I certainly think there are hardcore Holocaust deniers active in New Zealand, and they’re always trying to get their message out there. Quite a key figure is Kerry Bolton”, was inaccurate. Nonetheless, it said that there was “overwhelming evidence” to support the statement.

Complainant’s Further Submissions

[52]  Dr Bolton considered that RNZ’s submissions amounted to “nothing more than a smear dossier” and that most of the information contained in them was irrelevant. Referring to the broadcaster’s submissions, he said that he was “unable to find any documentation for my ever having been, let alone being now or in the recent past, a ‘very active, absolutely industrious Holocaust denier’”.

[53]  The complainant also argued that the submissions contained no evidence of him having worked closely with Frederick Toben, that he was the inventor of the Celtic New Zealand theory or that he had spread Holocaust denial among anti-war and pro-Palestinian activists. He contended that Dr Hamilton’s statements relating to these matters were not secondary to the topic discussed in the item as argued by RNZ.

[54]  Dr Bolton considered that there was nothing in RNZ’s submissions relating to Mr Toben and the Adelaide Institute which was more recent than a 2004 letter and some material from 2003, which concerned subjects other than the Holocaust. He also maintained that material that he had written had been reprinted or linked to websites without his prior knowledge.

[55]  Turning to the comments obtained by RNZ from two “leading members” of the anti-war movement, the complainant argued that they had perjured themselves and would “swear to anything” if it served their political agenda. He stated that his complaint was that Dr Hamilton had claimed that he had attended anti-war and pro-Palestine activities to spread anti-Semitism and Holocaust denial to youngsters, which he argued was nonsense and not backed by any evidence.

[56]  The complainant maintained that his publication “Lord of the Soil” did not contain any reference to Celts and that the claim he created the Celtic New Zealand theory was put forward by Dr Hamilton to advance his own agenda.

[57]  Dr Bolton provided the Authority with written statements from five individuals attesting to his good character.

Further Information Requested by the Authority

[58]  The Authority offered RNZ a further opportunity to make submissions on whether it had made reasonable efforts to ensure that Dr Bolton was a Holocaust denier who was active in New Zealand, with an emphasis on “active”, and whether this was a material point of fact within the programme.

[59]  Contending that Dr Bolton had not raised the issue in his original formal complaint, RNZ questioned why this issue should have been raised at all. It noted that it had already made substantial submissions on the specific accuracy points raised by Dr Bolton which highlighted the fact that Dr Hamilton’s comments concerning these issues were secondary statements of opinion and were not material.

[60]  The broadcaster argued that “the material already made available to the Authority clearly establishes the complainant as a Holocaust denier who is active in New Zealand”. It considered that Dr Bolton’s writings showed him to be a Holocaust denier and argued that, “Unless Holocaust deniers have publicly recanted their previously expressed views, it is perfectly reasonable for commentators to accept that their views remain the same”. It also contended that, “By his own admission, Dr Bolton identified himself as a Holocaust denier with respect to his publicly expressed opinions in the controversy of the van Leeuwen’s ‘Dreamers of the Dark’ masters thesis, which the Authority will note occurred as recently as late 2008”.

[61]  RNZ was of the view that, “because the complainant in his referral admits to holocaust denial activity, whether the complaint was active or not is irrelevant and immaterial. It said Dr Hamilton’s comments related to neo-Nazi activity and that in his opinion, to be a neo-Nazi required, inter alia, a denial of the Holocaust. It argued that the thrust of Dr Hamilton’s comments was that Holocaust denial and neo-Nazism went hand-in-hand “so it would have been clear that the adjective ‘active’ could equally apply to neo-Nazi or Holocaust denial activity”.

Complainant’s Further Submissions

[62]  Dr Bolton contended that the topic discussed in the “Ideas” item was Holocaust denial, not neo-Nazism. He maintained that Dr Hamilton was introduced as a person who had studied such movements in New Zealand and had then proceeded to launch an attack on him.

[63]  The complainant argued that he had provided material to the Authority showing that he was not a “neo-Nazi, active, or otherwise”.

Further information Requested by the Authority

[64]  The Authority noted RNZ’s submission that, “By his own admission, Dr Bolton identified himself as a Holocaust denier with respect to his publicly expressed opinions in the controversy of the van Leeuwen’s ‘Dreamers of the Dark’ masters thesis, which the Authority will note occurred as recently as late 2008”.

[65]  The Authority asked the broadcaster if there was any documentation to support this assertion in the material it had already provided.

[66]  RNZ referred the Authority to two documents written by Professor Konrad Kwiet from Macquarie University in Sydney. The first was a review he had undertaken of Mr van Leeuwen’s ‘Dreamers of the Dark’ masters thesis, and the second was an opinion piece about the nature of the material said to have been written by Dr Bolton. In his opinion piece, Professor Kwiet stated that he had examined three pamphlets written by Dr Bolton called “Protocols of Zion in context” (2007), “Anti-Semitism: Cui Bono” (2006) and “Holocaust Myth” (2000). In relation to these materials, he gave his opinion that, “In Germany and some other countries Dr Bolton would be charged for racial slander and denial of the Holocaust”.

[67]  The Authority was not provided with copies of the pamphlets.

Authority's Determination

[68]  The members of the Authority have listened to 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.

Standard 5 (accuracy)

[69]  Standard 5 (accuracy) applies to news, current affairs and “other factual programming”. The “Ideas” segment of Sunday with Chris Laidlaw was not a news or current affairs programme, and therefore we must decide whether the segment falls within the definition of “factual programming”.

[70]  In Accident Compensation Corporation and TVNZ,⁶ the Authority stated that factual programmes are those which present themselves as, and are reasonably understood by the audience to be, authoritative sources of information. It found that the important criterion was whether a reasonable viewer or listener was entitled to expect that the information given in the programme would be truthful and authoritative, and not just opinion or hyperbole.

[71]  The Authority is divided on whether “Ideas” was a factual programme as envisaged under the accuracy standard.

Majority view (Tapu Misa, Mary Anne Shanahan and Leigh Pearson)

Factual programme

[72]  A majority of the Authority (Tapu Misa, Mary Anne Shanahan and Leigh Pearson) considers that the programme was a “factual programme” to which Standard 5 applied. The majority finds that while “Ideas” contained opinion, analysis and comment, it also contained factual information that its listeners could reasonably have trusted to be accurate and truthful. The majority notes that the distinction argued by RNZ – that “Ideas” fell under the genre of Society and People rather than Science and Factual – is not one that would be readily apparent to its listeners. The discussion of ideas and the presence of opinion does not preclude the need for accuracy on material points of fact. That the programme is a forum for serious, considered discussion, and the broadcaster one which prides itself on fostering a “high level of credibility and trust”⁷ among its listeners, are factors which support the view that “Ideas” was a factual programme, and that its audience was entitled to expect that the information contained within it was truthful and authoritative, and accurate on points of fact.

[73]  The majority notes that the presenter introduced Dr Hamilton by saying:

... as sociologist Scott Hamilton has discovered, there are groups in New Zealand, as elsewhere, that do attempt to question and downplay the Holocaust. What are their motives? I caught up with Scott Hamilton recently and began by asking him about the extent of Holocaust denial in New Zealand.

[74]  The majority considers that the programme presented Dr Hamilton as an expert source of information on Holocaust denial and those allegedly engaged in the practice in New Zealand and elsewhere. As a result, it considers that listeners would have expected the information provided by Dr Hamilton to be truthful and authoritative. In these circumstances, the majority finds that “Ideas” was a factual programme to which Standard 5 applied.

Material points of fact

[75]  The accuracy standard requires broadcasters to ensure accuracy in relation to “all material points of fact”. Guideline 5a states that the standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

[76]  Having decided that “Ideas” was a factual programme to which the accuracy standard applied, we the majority must decide whether the particular comments complained about constituted assertions of fact – and if so, whether they were material facts – or whether they should more properly be regarded as comment, analysis or opinion.

[77]  We note that, during the initial stages of the interview, Dr Hamilton discussed Holocaust denial and anti-Semitism in general, including the history of such ideas in New Zealand and their appeal to certain small sectors of society. During the later stages of the interview, Dr Hamilton specifically referred to Dr Bolton. He began by saying:

I certainly think there are hardcore Holocaust deniers active in New Zealand, and they’re always trying to get their message out there. Quite a key figure is Kerry Bolton... and Bolton’s been absolutely, very industrious in pushing these ideas in New Zealand... He’ll go along to demonstrations and he’ll present himself as a legitimate critic of Israeli foreign policy and he’ll slide from that to anti-Semitism and Holocaust denial.

[78]  Dr Bolton complained under the accuracy standard. He disputed Dr Hamilton’s claims that he was a holocaust denier and anti-Semitic. He said that five specific statements were inaccurate, which he paraphrased as follows: that he had “worked closely with Dr Frederick Toben”; that he was “the ‘inventor’ of the Celtic New Zealand theory”; that he had “infiltrated the anti-war movement and had shown up to meetings to air [his] views”; that he had “infiltrated the Palestine Solidarity movement”; and that he had “exercised influence over unwary youth”.

[79]  As noted above (see paragraph [40]), this complaint was referred back to the Authority after a successful appeal in the High Court. In its original determination, a majority of the Authority was unable to determine the accuracy or otherwise of Dr Hamilton’s statements, given the paucity of information provided by Radio New Zealand. It therefore focused on the broadcaster’s actions, and upheld the complaint under the revised accuracy standard,⁸ which required that a broadcaster should make “reasonable efforts” to ensure accuracy. Justice Williams directed that the Authority must find one or more of the five statements to be inaccurate before proceeding to the reasonable efforts test.

[80]  RNZ has argued that Dr Hamilton’s comments were not statements of fact but opinion, and that even if they were facts, they were not material to the topic under discussion. It has provided the Authority with considerable new information to support Dr Hamilton’s claims, including examples of Dr Bolton’s writing and three expert opinions from academics who considered that Dr Bolton’s work constituted Holocaust denial. RNZ also argued that “to apply the accuracy standard to such political speech and discourse is of itself an unreasonable limitation on the rights of the programme participant and broadcaster to freedom of expression”.

[81]  The majority notes that determining whether the words complained about are assertions of fact, as opposed to opinion, is challenging. Although the standard requires that opinion and comment be clearly distinguishable from fact, in reality the distinction is often blurred, with fact and opinion being intermingled.

[82]  That fact and comment “are not readily divisible” is illustrated by a high-profile libel case (British Chiropractic Association v Singh⁹) decided by the English Court of Appeal earlier this year. In that case, statements made by a science writer Dr Simon Singh in an article in the Guardian newspaper, which were initially ruled by a High Court judge to be assertions of verifiable fact, were subsequently determined on appeal to be “expressions of opinion”. The Court of Appeal decision noted that:

The opinion may be mistaken, but to allow the party which has been denounced on the basis of it to compel its author to prove in court what he has asserted by way of argument is to invite the court to become an Orwellian ministry of truth.

[83]  The Singh case, although concerned with libel and fair comment, highlighted, as the Court noted, “conflicting issues of great sensitivity involving both the protection of good reputation and the maintenance of the principles of free expression”. The same issues are at play in this complaint. While we are mindful of the need to give political speech of this kind “breathing space”, as the US Supreme Court has asserted,¹⁰ and of the “chilling effect” of an overly literalist approach to speech, we are sympathetic to Dr Bolton’s argument that the right to freedom of expression should not be read so widely as to absolve the broadcaster from allowing “lies and attacks” on the reputations of named individuals.

[84]  Having listened to the entire programme to assess the context in which Dr Hamilton’s comments were made, we conclude that Dr Hamilton was generally expressing opinion and analysis as an academic who had made it his business to study the presence of Holocaust denial in New Zealand, and its links to anti-Semitism, the neo-Nazi movement, and what he described as “the Celtic New Zealand theory”. We note that Dr Hamilton prefaced many of his comments with the expressions “I think” or “I certainly think”. While some of Dr Hamilton’s comments were stated unequivocally, leading to the impression that they were undisputed “facts”, we consider that they should be viewed in the context of a discussion in which Dr Hamilton was giving his opinion. Given the nature of Dr Hamilton’s statements, we think it would be an unreasonable limitation on the right to freedom of expression to view them as “material facts” for the purposes of the accuracy standard.

[85]  Looking specifically at the five statements that Dr Bolton complained about, we consider that while some statements were framed as fact, they also involved elements of interpretation, analysis and opinion. We note that even if the statements were isolated and regarded as material assertions of fact they would be of the kind that, in our opinion, do not lend themselves to being determined by this Authority under the accuracy standard.

[86]  For example, the statement that Dr Bolton was the “inventor of the Celtic New Zealand theory”, while framed as fact, can be viewed as Dr Hamilton’s professional opinion as an academic, and hinges on how one defines that theory. Dr Hamilton has argued that Dr Bolton’s writings, about a race of white-skinned people who inhabited New Zealand before the arrival of Maori, can be characterized as part of the “Celtic New Zealand theory”, and that Dr Bolton’s work preceded others on the subject. We consider that this point is open for debate, and not able to be resolved by the Authority.

[87]  Similarly, the statement that Dr Bolton “worked closely” with Dr Frederick Toben is, in our view, Dr Hamilton’s inference based on Dr Bolton having been listed in the past as an associate of Dr Toben’s Adelaide Institute, and his material being published on that site. We consider that this was Dr Hamilton’s interpretation, and whether it was correct or not may be more a matter of fairness than accuracy. In any case, we are not in a position to decide whether this was an “accurate” assessment.

[88]  We take the same view with respect to the statements that Dr Bolton had “attempted to insinuate himself” into the anti-war movement and the Palestine Solidarity Movement, and that there had been “isolated instances of, especially young people, in the anti-war movement and Palestine Solidarity movement who have been taken in by this stuff”. We consider that these were also Dr Hamilton’s interpretation and version of events, and amounted to his opinion. While the facts on which they stand may be open to challenge, we do not consider that these were material, or are able to be resolved by this Authority. In any case, we consider Dr Bolton’s objections are to the inferences drawn by Dr Hamilton. Again, we think the statements raise issues of fairness rather than accuracy.

[89]  This leaves us with “the sting” of Dr Hamilton’s comments – which was to brand Dr Bolton as an “active” Holocaust denier. In the Authority’s original decision it was decided that this was an allegation of fact, however the majority was unable to determine its accuracy based on the evidence provided by RNZ. As previously noted, the Authority has since been provided with a great deal more evidence to support Dr Hamilton’s contention that Dr Bolton is a Holocaust denier. This includes opinions from three academic experts on the subject, as well as examples of Dr Bolton’s writing. Arguing against this are the numerous references which we have received that attest to Dr Bolton’s good character and dispute Dr Hamilton’s statements about him.

[90]  Our assessment of the evidence has persuaded us that this is not a “fact” on which we ought to rule. While overseas courts have been drawn into determining such questions, we do not think it is the role of this Authority to decide as a matter of accuracy whether or not Dr Bolton is a Holocaust denier, active or otherwise. We note that the 2000 ruling by the English High Court Judge Charles Gray in the David Irving libel suit,¹¹ which found that Mr Irving was an “active Holocaust denier”, among other charges, ran to some 333 pages and relied on the expert analysis of several noted historians and other academics. We note that while an accusation of “Holocaust denial” is a serious matter, it is not one that can properly be determined under the accuracy standard. It is a conclusion that involves value judgments, academic analysis and argument. While one may argue with the correctness or fairness of the conclusion, it is not, in our view, a fact to which Standard 5 can apply.

[91]  Having arrived at the conclusion that Dr Hamilton’s statements constituted analysis and comment which were not subject to the accuracy standard, we the majority decline to uphold the complaint that the broadcast breached Standard 5. We consider that finding otherwise would place an unreasonable limit on the broadcaster’s right to freedom of expression provided for in section 14 of the New Zealand Bill of Rights Act 1990.

[92]  The majority accepts that this will seem an unsatisfactory outcome for Dr Bolton. For the record, we note that Dr Bolton’s complaint raises issues which would more appropriately have been dealt with under Standard 6 (fairness). However, as he did not raise fairness either explicitly or implicitly in his original formal complaint to the broadcaster, we have no jurisdiction to consider that standard.

Minority view (Peter Radich)

[93]  The radio programme in which Dr Hamilton made his statements or comments which are the subject of the complaint is a regular programme presented by Radio New Zealand on Sunday morning called "Ideas". The format of the programme is that the Radio New Zealand presenter interviews a guest and develops a discussion around the particular topic which has been selected.

[94]  In the radio programme, Dr Hamilton used a collection of words about Dr Bolton. I do not propose to micro-analyse each of them as in my view they are all of the same type or genre. Essentially what Dr Hamilton was saying was that there is a small group of holocaust deniers active in New Zealand, that one of this group is Dr Bolton and that Dr Bolton has other fringe views including the opinion that New Zealand may have been first settled by white skinned people.

[95]  A radio broadcaster is of course bound by the Radio Code of Broadcasting Practice. Standard 5 of that Code dealing with accuracy states:

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

There are three guidelines to that standard, one of which says that the standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

[96]  Amongst the other standards which broadcasters must comply with is Standard 6 which relates to fairness and which states:

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

Dr Bolton elected to make his complaint under Standard 5 and not under Standard 6.

[97]  On 31 May 2009 the topic selected by the broadcaster for this “Ideas” programme was the place of the Holocaust in popular culture. The host began the programme with words which included:

This week we take a look at the place of the Holocaust in popular culture. We examine how the 20th century’s most horrific crime is used and misused in political debate and hear about efforts by fringe groups in New Zealand to deny it ever took place.

[98]  The programme commenced with a discussion with one Professor Omer Bartov said to be an internationally recognised Holocaust historian. It then followed with an interview with Dr Hamilton in which some of the opening words were:

As Professor Bartov said, the Holocaust became a defining event in the 20th Century. The scale of the horror is beyond question, unequalled by any other episode of genocide, both in scale and in morbid intent. But as sociologist Scott Hamilton has discovered, there are groups in New Zealand, as elsewhere, that do attempt to question and downplay the Holocaust. What are their motives? I caught up with Scott Hamilton recently and began by asking him about the extent of Holocaust denial in New Zealand.

The discussion then followed.

[99]  I have listened to the whole programme a number of times and I have read the whole transcript a number of times.

[100]  To get to a point where Standard 5 applies making the broadcaster responsible to some extent for the accuracy of the programme, it is necessary to establish that the broadcast in question was factual programming. This expression factual programming follows references to programmes that are news or current affairs. In my view there is intended by the Standard to be a common flavouring in each of these three categories of programme.

[101]  My colleagues in the majority have reached the conclusions that the programme in question was within the category of factual programming They have gone to the next step and have determined however that the statements complained about were not statements of material fact but were statements of comment or opinion. I disagree with their first conclusion and agree with their second conclusion and in respect of each wish to express my own views as I consider that the two issues are interrelated.

[102]  The broad question which is required to be addressed is the extent to which, if at all, Radio New Zealand was required to satisfy itself that various statements made by Dr Hamilton about Dr Bolton were accurate.

[103]  The obligation which a broadcaster has in relation to the accuracy of facts broadcast is a very challenging responsibility and it is not one to be applied too lightly and without careful thought about its purpose, consequences and ramifications. This is particularly so given that broadcasting, will of its nature, have some extempore elements which impose time limitations. Broadcasters in their business and craft will want the freedom to be able to broadcast quickly and often it is desirable that they do broadcast quickly. As well, there has to be some sensible recognition that a broadcaster will have resource limitations in checking facts. I therefore express the broad view that, in a society where freedom of expression and freedom of speech are valued, we should be slow to apply a heavy brake to broadcasters and to require them, before broadcasting what others have said, to check facts and take responsibility for facts stated by others. I therefore approach this question of a broadcaster's responsibility in relation to facts with considerable caution. I consider that care needs to be taken at both levels which apply here, that is the level of determining whether the programme was a factual programme and whether what was expressed was fact or opinion.

[104]  The practical difficulties for broadcasters in applying too heavy a requirement are shown by this case. While here, the facts the accuracy of which is challenged by Dr Bolton are several only, the broadcast contains many such facts which are arguably material to the theme of the broadcast. A complainant about accuracy is not required to have the status of a person who has been affected by inaccuracy. If the requirement for accuracy is wrongly applied a broadcaster could end up being required to spend a lot of time and resources identifying and checking facts such that the ability to broadcast with reasonable freedom is lost.

[105]  I see the programme in question as being a clear example of a forum for the expression of ideas and opinions. The name of the programme itself signals this as does the consistent pattern of the broadcast in which guests are asked to discuss and debate issues with hosts. In my view, any reasonable listener should have seen this programme as one in which opinions were being expressed and comments were being made. No reasonable listener would have expected or should have expected that Radio New Zealand would have checked what has been complained about for accuracy before the broadcast was made. Although an attentive listener would have recognised that the interviews had been pre-recorded, many listeners could have reasonably thought that the broadcast was of live interviews. Accordingly, I have reached the conclusion that this programme was not one able to be categorised as factual programming in terms of Standard 5.

[106]  For Standard 5 to apply it is necessary not just that the programme be within the category of factual programme; it is also necessary that the words complained about amount to material points of fact. Thus there are, I believe, at least two layers to the protection of freedom of expression. The programme must be within the genus of factual programming (if it is not then even if facts are mis-stated the Standard does not apply) and once the programme is categorised as factual programming, the words complained about must be material points of fact.

[107]  Determining that words are a statement of fact as opposed to being an expression of opinion is a challenging task. It is not enough to look at the words in isolation and assess their meaning in a vacuum. The words need to be looked at in context. The nature of the forum has to be considered as do all of the surrounding words and the surrounding circumstances including the position, qualifications and purpose of the speaker.

[108]  When the whole of what was said by Dr Hamilton in the interview is taken in account he was, in my view, expressing a range of opinions as an academic who had apparently studied attitudes in New Zealand towards the holocaust. Throughout Dr Hamilton's dialogue there are numerous indicators that he was expressing opinion. The expressions I think or I certainly think and similar expressions are peppered throughout. In the context of a discussion of that kind by an academic, I do not think that it is legitimate to isolate out some words where the qualifying opening words I think are not used and say that they then become statements of fact which are material to the discussion. I consider that that would be to apply a literalist approach. What Dr Hamilton stated involved value judgments of a kind to be expected from an academic.

[109]  In reaching these conclusions I have had regard to the principles expressed in British Chiropractic Association v Singh¹² and the earlier different approach taken in Templeton v Jones.¹³ While these authorities relate to defamation and fair comment similar principles apply there as here.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
23 December 2010

Appendix

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

1.         Kerry Bolton’s formal complaint – 8 June 2009

2.         RNZ’s response to the formal complaint – 30 July 2009

3.         Dr Bolton’s referral to the Authority – 1 August 2009

4.         RNZ’s response to the Authority – 27 August 2009

5.         RNZ’s response to Authority’s request for further information – 21 October 2009

6.         Dr Bolton’s response to RNZ’s response – 22 October 2009

7.         RNZ’s response to Authority’s request for further information – 28 October 2009

8.         Dr Bolton’s final comment – 28 October 2009

9.         Additional information from RNZ about Dr Hamilton’s expertise – 19 November 2009

10.         High Court’s decision on RNZ’s appeal – 19 July 2010

11.         RNZ’s further submissions – 1 September 2010

12.         Dr Bolton’s further submissions – 13 September 2010

13.         RNZ’s response to the Authority – 25 October 2010

14.         Dr Bolton’s further submissions – 27 October 2010

15.         RNZ’s response to the Authority – 28 October 2010

¹Article available at: www.fightdemback.org/2006/12/26/kerry-and-the-Holocaust-deniers/

²www.usu.co.nz/inunison/blog/kerry-bolton-the-man-the-myth-the-manmyth/. Article no longer available.

³Adelaide Institute article available at: http://www.adelaideinstitute.org/Dissenters/bolton6.htm

⁴Radio New Zealand Ltd v Kerry Bolton, HC WN CIV-2010-485-225

⁵Radio New Zealand Ltd v Kerry Bolton, CIV-2010-485-225, paragraph [57]

⁶Decision No. 2006-126

⁷Radio New Zealand’s editorial policies, p 11

⁸The new accuracy standard for radio came into effect in July 2008.

⁹[2010] EWCA Civ 350

¹⁰N.A.A.C.P. v. Button, 371 U.S. 415, 433

¹¹[2000] EWHC QB 115

¹²[2010] EWCA Civ 350

¹³[1984) 1NZLR 448 (CA)