BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Checkpoint, Nine to Noon and Sunday Morning with Chris Laidlaw – extended interviews contained discussions about an incident of escalating violence in the Gaza Strip in the context of the ongoing Israeli-Palestinian conflict – allegedly unbalanced

Findings

Standard 4 (controversial issues) – incident of escalating violence in the context of ongoing Israeli-Palestinian conflict amounted to a controversial issue of public importance – broadcaster made reasonable efforts to present significant viewpoints, including the Israeli perspective, across numerous news bulletins and programmes – not upheld

This headnote does not form part of the decision.

Introduction

[1]  Five selected items reporting on an episode of escalating violence in the Israeli-Palestinian conflict in the Gaza Strip were broadcast on Radio New Zealand National. The items formed part of the programmes Checkpoint on 19 November 2012, Nine to Noon and Checkpoint on 20 November 2012, Nine to Noon on 22 November 2012, and Sunday Morning with Chris Laidlaw on 25 November 2012.

[2]  Peter Bolot, Dorothy Finlay and Lynette Gautier made a formal complaint to Radio New Zealand Ltd (RNZ), the broadcaster, alleging that only extended interviews with commentators who were “deeply partisan” towards the Palestinian perspective were broadcast. They considered that listeners were not provided with the necessary context to form a fair understanding of the situation on both sides of the conflict.

[3]  The issue is whether the broadcasts breached the controversial issues standard (Standard 4) as set out in the Radio Code of Broadcasting Practice.

[4]  The members of the Authority have listened to recordings of the broadcasts complained about and have read the correspondence listed in the Appendix. We have also listened to a number of other items reporting on this issue which were broadcast by RNZ.

Nature of the items and freedom of expression

[5]  In assessing an alleged breach of broadcasting standards, we must give proper consideration to the right to freedom of expression which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. Any restriction on the right to free speech must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5).

[6]  The starting point is to assess the value of the particular speech in issue, and then to balance this against the potential harm that is likely to result from allowing the unfettered dissemination of that speech. The items identified by the complainants consisted of extended interviews, five minutes or more in length, as follows:

• Checkpoint interview with Al Jazeera reporter Nicole Johnston (19 November).
• Nine to Noon interview with Rami Khouri, editor for Lebanon’s Daily Star newspaper and Director of the Institute of Public Policy and International Affairs at the American University of Beirut (20 November).
• Checkpoint interview with Richard Falk, UN Special Rapporteur on Human Rights in the Palestinian Territories (20 November).
• Nine to Noon second interview with Nicole Johnston (22 November).
• Sunday Morning with Chris Laidlaw second interview with Richard Falk (25 November).

[7]  The interviews contained discussions about a recent surge of violence in Gaza, stemming from the assassination of a Hamas military leader, and a consequent spate of Hamas rocket attacks on Israel. The discussions focused on the interviewees’ interpretations of the day-to-day events as they unfolded, and their views on the wider Israeli-Palestinian confrontation in the Middle East.

[8]  The items carried a high level of public interest and were valuable in terms of freedom of expression. The freedom of the media to report on international conflicts is important to promoting public awareness, the free flow of ideas and the exchange of viewpoints. Given the importance of the right of the media to report on such conflicts, and taking into account the longstanding and complicated nature of the Israeli-Palestinian conflict which has generated extensive coverage and debate world-wide, we consider that a very strong justification is required to restrict the broadcaster’s right to impart such information and the audience’s right to receive it.

[9]  The alleged harm, in terms of the underlying objectives of the relevant broadcasting standards, was said to derive from the broadcast of extended interviews that were “unambiguously biased toward the Palestinian side, ignoring the other party to the conflict and ignoring Hamas’ role in initiating the conflict”, therefore overlooking the suffering of the Israeli civilian population, and presenting listeners with a “skewed interpretation” of events.

Did the broadcaster provide sufficient balance on the issue discussed?

[10]  The balance standard (Standard 4) states that when controversial issues of public importance are discussed in news, current affairs and 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. The balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.¹

[11]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue “of public importance”, it must be “controversial”, and it must be “discussed”.²

[12]  The primary issues for our determination are:

• Did the interviews form part of news, current affairs, or factual programmes to which the balance standard applied?
• Did the items discuss a controversial issue of public importance?
• Did the broadcaster make reasonable efforts or give reasonable opportunities to provide balance on the issue discussed in the programmes, or in other programmes within the period of current interest?

Did the interviews form part of news, current affairs, or factual programmes to which the balance standard applied?

[13]  RNZ appeared to accept that all of the programmes, with the exception of Sunday Morning with Chris Laidlaw, were within the ambit of Standard 4. It argued that the interview with Mr Falk on Sunday Morning with Chris Laidlaw was an opinion piece, consisting of Mr Falk’s views on the conflict in the Middle East, as opposed to a “factual programme”. It noted that the programme formed part of the “Ideas” segment on Radio New Zealand National, which was categorised on its website in the genre of “Society and People”.

[14]  The Authority has previously acknowledged that Sunday Morning with Chris Laidlaw is a mix of discussions on news and current affairs matters on the one hand, and less contentious pieces on life and culture in New Zealand, on the other hand.³ For this reason, the Authority considers that categorisation of a programme depends on the content of the particular broadcast segment, including the segment’s introduction, the subject matter and the nature of the discussion.⁴ In categorising a broadcast, we must consider how viewers would reasonably have perceived or understood the programme, and whether they were likely to have been deceived or misinformed by the omission or treatment of a significant perspective.

[15]  The interview with Richard Falk on Sunday Morning with Chris Laidlaw was introduced by the host as follows:

Once again Israel and Hamas in Gaza have been at each other’s throats. A few days ago a ceasefire was successfully negotiated with a variety of outside parties including the US and Egypt being prominent in that, but there is not a lot of enthusiasm or optimism that it will last… Richard Falk, UN Special Rapporteur on Human Rights in the Palestinian Territories, has been saying some interesting things about the situation, so we got in touch with him. I asked him, “Is it any more likely than before that this ceasefire will hold?”

[16]  What followed was a detailed analysis and discussion of an issue of public discourse and debate – that is, the ongoing conflict in Gaza – with particular emphasis on the events of the preceding week. We agree with the complainants that the interview was a longer, more in-depth version of the interview with Mr Falk on Checkpoint. Given the nature and subject matter of the discussion, which was prompted by the recent surge in violence, and considering how the broadcast would have been interpreted by listeners, we are satisfied that the interview on Sunday Morning with Chris Laidlaw fell into the category of news and current affairs, to which the balance standard applied. We do not therefore need to determine, in this instance, whether it was a “factual programme”.

[17]  Accordingly, all of the interviews formed part of news and current affairs programmes within the purview of the balance standard.

Did the items discuss a controversial issue of public importance?

[18]  The Authority has typically defined an 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.⁵ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁶

[19]  RNZ argued that an incident of escalating violence in the ongoing Israeli-Palestinian conflict was not a controversial issue of public importance in New Zealand. It sought to distinguish between “episodic events” of violence on the one hand, and the much larger ongoing conflict in the Middle East, on the other hand. It considered that the latter, but not the former, was a controversial issue.

[20]  The complainants argued that, as a matter of commonsense, the conflict in Gaza should be treated as a controversial issue of public importance. They referred to extensive coverage by local media, generated by the conflict, arguing that this demonstrated the depth of public interest in the conflict in New Zealand.

[21]  As noted above, the broadcasts focused on the recent surge in violence in the context of the ongoing struggle between the Israelis and the Palestinians. In our view, this recent development, in the context of the ongoing conflict, amounted to a controversial issue of public importance. Events such as this, as well as the wider conflict are of concern to members of the New Zealand public and have been the subject of ongoing debate in New Zealand society and within our political system. For the purposes of this decision, and given the nature of the complainants’ arguments, we have focused our consideration on whether balance was provided in relation to this particular surge in violence.

Did the broadcaster make reasonable efforts or give reasonable opportunities to provide balance on the issue discussed in the programmes, or in other programmes within the period of current interest?

[22]  Having found that the balance standard applied to the programmes, and that the items contained discussions of controversial issues of public importance, the next question is whether RNZ made reasonable efforts to provide balance within the programmes or in other programmes within the period of current interest, to enable listeners to reach an informed and reasoned opinion on the issues.

[23]  The complainants’ argument is that RNZ broadcast extended interviews over the period of a week, only with commentators who were partisan towards the Palestinian perspective (especially Mr Falk).

[24]  The Authority has said in previous decisions that balance need not be achieved by the “stopwatch”, meaning that the time given to each competing party or viewpoint does not have to be mathematically balanced.⁷ Further, significant points of view can be provided in a variety of ways in addition to alternative perspectives presented first-hand, including the use of “devil’s advocate” questioning,⁸ or by acknowledging the existence of other significant perspectives.⁹

[25]  The balance standard explicitly allows for balance to be achieved across different programmes during the period in which an issue is discussed. In its decision on the complaint, RNZ listed more than 250 items reporting on the violence, broadcast between 15 and 25 November. We have listened to a small sample of these items, which it identified as containing balancing comments, and we are satisfied that the broadcaster went to considerable lengths to present significant viewpoints during this period.

[26]  A number of these items contained the first-hand views of prominent, high-status individuals, including spokespeople for the Israeli government, in support of the Israeli position. In journalistic terms, these sources are valuable and carry weight. Contrary to the complainants’ view that these Israeli views were put only briefly, some of these comments were quite significant in length, and one item contained a 3-minute interview with an Israeli Cabinet Minister. We have transcribed below some of these comments, to demonstrate RNZ’s efforts to present perspectives in favour of the Israelis:

• “The escalation started when the different terror organisations in Gaza headed by Hamas and backed by Iran chose to target Israeli civilians, and we cannot allow a situation in which 3 million Israelis are under fire or rocket danger from Gaza and this is why we went to this operation. Ahmed Al-Jaabari has a lot of blood of Israeli people on his hands – not him alone unfortunately, there are many other terrorists inside Gaza – and we will do whatever we need, and continue as long as we need, in order to resume the safety and the quiet and peace into the Israeli people…” (Lieutenant Colonel Avital Leibovich, Israeli Defence Force – Morning Report, 15 November at 6.40am)
  
  
• “We will do whatever it takes to defend and protect our civilians, so we don’t rule out anything, but it is not our aim to engage in a ground operation – this is not our purpose. The only purpose here is to stop rocket fire and to stop turning the lives of approximately one million people into living hell simply because they live in the South. This is the only purpose.” (Yigal Palmor, spokesperson for Israeli Foreign Ministry – Morning Report, 15 November at 7.39am)
  
  
• [Explaining why Ahmed Al-Jaabari was targeted] “Most importantly, he is the one who is responsible for Israel being under fire – not just in the last few days, where more than one million Israelis are terrorised by these incoming missiles and rockets from Gaza – but for the last seven years, ever since we left Gaza. Israel gave Gaza to the Palestinians and we never had a day of peace and quiet. There was continued terror, we are still under fire, and they specifically direct their fire at Israeli children and kindergartens and schools.” (Daniel Ayalon, Israel’s Deputy Foreign Minister – Morning Report, 15 November at 7.39am)
  
  
• “The Israel Defence Forces have attacked more than 1,000 terror targets in the Gaza Strip. It continues its operation in this very moment. It causes significant blows to the weapons aimed towards Israel, its operators and the people who send them. We are exacting a heavy price from Hamas and the terrorist organisations and Israel Defence Forces are prepared for a significant expansion of the operation.” (Benjamin Netanyahu, Israeli Prime Minister – Morning Report, 19 November at 7.17am)
  
  
• “We are doing our best just to target the terrorists and terrorist infrastructure. Of course you have collateral damage. Compared to what’s happening in Afghanistan and elsewhere it is just minimal and we hope of course to make it as minimal as we can. …Of course you have some kind of such mistakes but… we are in a time of war that we have been forced to go into just because our population has been under, simply, a continuous barrage. But as we are targeting just terrorists as much as we can, what you see here is a deliberate attempt by terrorists equipped by Iran, just to, on purpose target our highly civilian-populated centres – that’s a major difference. And we see here the Iron Dome… [we have put that there] not to protect our army but as you can see just to protect sheer civilians – that’s the difference between them and between us.” (Usi Landau, Israeli Cabinet Minister – Morning Report, 20 November at 6.40am)
  
  
• “One has to understand that every government has to protect its population as much as we do, but [what] we’re seeing on the other side is they’re just simply launching missiles and launching rockets, but they are doing that from school yards, they’re doing that from the centre of mosques, of hospitals, they are not only targeting our population but they are doing that, endangering – on purpose – their population, so that… as we are trying to protect ourselves, hitting them and some of their civilians are hit, here comes the BBC and [says], hey, this is disproportionate. You know what would happen if the BBC would cover the battle between David and Goliath? BBC would zoom on the forehead of Goliath which is full of blood, and then everybody in the world would say that Goliath is the victim and David is the villain. Sir, we have to understand this is a war. We are protecting our people. We’re just trying to target the combatants, the terrorists, the terrorist infrastructure, to protect our people.” (Usi Landau, Israeli Cabinet Minister – Morning Report, 20 November at 6.40am)
  
  
• “If a long term solution can be put in place through diplomatic means then Israel would be a willing partner to such a solution. But if stronger military action proves necessary to stop the constant barrage of rockets, Israel will not hesitate to do what is necessary to defend our people.” (Benjamin Netanyahu, Israeli Prime Minister – Morning Report, 21 November at 7.24am)
  
  
• “If Hamas breaks its promises to the Egyptians and they continue to attack us, I’d say all options are on the table including a ground incursion – now I don’t want to go there – I prefer, my government prefers, the Israeli people prefer, that this period of quiet is maintained and I hope that the terrorists in Gaza have learned from their experience that it’s simply not in their interest to shoot at Israeli civilians.” (Mark Regev, spokesperson for Israeli government – Morning Report, 23 November at 7.27am)

[27]  In addition to these items across the period of interest, we also agree with RNZ that, in terms of the items identified by the complainants, the hosts, by taking a “devil’s advocate” approach, and the interviewees themselves making comments which alerted listeners to the Israeli perspective, contributed to balance. For example, the broadcasts contained the following comments:

• “…Israel’s view… is, well, ‘Hamas, don’t fire rockets from heavily populated areas. If civilians die, it’s kind of your fault.’” (interviewer – Checkpoint, 19 November)
  
  
• “Hamas of course is saying that a red line has been crossed… Israel has carried out the assassination of the military commander of Hamas. Israel is saying of course that their red line has been crossed, which is that Hamas now has the weapons capability to fire rockets into or very close to Tel Aviv and Jerusalem… so red lines are being crossed on both sides.” (Nicole Johnston – Checkpoint, 19 November)
  
  
• “The Israelis have a right to live in peace and the Palestinians have a right to live in peace… I would look for… a longer term cessation of hostilities by both sides, which means that Israelis have to lift the siege that they have imposed on Gaza, and the Palestinians have to, in return, not fire on the Israelis…” (Rami Khouri – Nine to Noon, 20 November)
  
  
• “Israel, as you have already acknowledged, is also on the receiving end of the rocket attacks. [Israel says] the weaponry that has been accessed of late allows the larger city of Tel Aviv, and Jerusalem potentially, to be the subject of attack…” (interviewer – Nine to Noon, 20 November)
  
  
• “But that’s not the view [that Israel is more responsible] that we get from many Western leaders. Barack Obama says that no country on earth would tolerate missiles raining down on its citizens from outside its borders, this is all happening because Hamas insists on firing rockets into Israel.” (interviewer – Checkpoint, 20 November)
  
  
• “...both parties, I think, they should walk away with their heads held high…” (Nicole Johnston – Nine to Noon, 22 November)
  
  
• “What Israel sees as its great fear is that if it relaxes the movement of people and goods, the risk is what it identifies as terrorist activity, that it experiences by rocket fire presently – and it has put up a shield to deal with some of the worst of that – would become terrorism in the heart of its main cities, and does that remain on its side a fundamental barrier to the relaxation of the blockade?” (interviewer – Nine to Noon, 22 November)
  
  
• “I’ve heard it said online and here and there that this particular attack, if it was provoked by Israel – and I don’t know that we can assert that it was, necessarily…” (interviewer – Sunday Morning with Chris Laidlaw, 25 November)

[28]  For these reasons, and giving full weight to the right to freedom of expression, we are satisfied that the broadcaster fulfilled its obligations under the balance standard, and we decline to uphold the complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
2 July 2013

Appendix

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

1          Peter Bolot’s, Dorothy Finlay’s and Lynette Gautier’s formal complaint – 14 December 2012

2          RNZ’s response to the formal complaint – 30 January 2013

3          Peter Bolot’s, Dorothy Finlay’s and Lynette Gautier’s referral to the Authority – 28 February 2013

4          RNZ’s response to the referral – 2 April 2013

5          Peter Bolot’s, Dorothy Finlay’s and Lynette Gautier’s final comment (including attachments)
            – 2 May 2013

6          RNZ’s final comment – 10 May 2013

¹Commerce Commission and TVWorks Ltd, Decision No. 2008-014

²For further discussion of these concepts see Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) and Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Radio (Broadcasting Standards Authority, June 2009)

³See Bolton and Radio New Zealand Ltd, Decision No. 2009-166 and Trussell and Radio New Zealand Ltd, and Decision No. 2012-075

⁴Trussell and Radio New Zealand Ltd, Decision No. 2012-075

⁵E.g. Powell and CanWest TVWorks Ltd, Decision No. 2005-125

⁶For example, see, Ministry of Social Development and Television New Zealand Ltd, Decision No. 2006-076

⁷See, for example, New Zealand Defence Force and Television New Zealand Ltd, Decision No. 2010-121, and New Zealand Food and Grocery Council Incorporated and TVWorks Ltd, Decision No. 2007-126

⁸See, for example, Boyce and Radio New Zealand Ltd, Decision No. 2011-163, Signer and Bailey and Radio New Zealand Ltd, Decision No. 2011-111, and Brooking and Television New Zealand Ltd, Decision No. 2009-012

⁹See, for example, Butler et al and Television New Zealand, Decision No. 2009-063