BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary [This summary does not form part of the decision.]

Native Affairs reported on 'jailed Northland farmer, Allan Titford, and his fight with Te Roroa', and his supporters. The Authority did not uphold Kerry Bolton's complaint that the action taken by Māori TV, having upheld his complaint that it was inaccurate to accuse him of being a 'Titford supporter', was insufficient. This was a matter of interpretation and opinion that could not be conclusively assessed as accurate or inaccurate. The Authority also declined to uphold an additional complaint that the report was misleading and unfair. The report was based on the opinions of the interviewees and was legitimately presented from a Māori perspective. It was not necessary to present alternative views on Mr Titford's guilt or innocence, and no participant was treated unfairly.

Not Upheld: Accuracy (Action Taken), Accuracy, Controversial Issues, Fairness, Discrimination and Denigration, Good Taste and Decency, Responsible Programming, Violence

Introduction

[1]  An item on Native Affairs, entitled 'Tall Tales', reported on 'jailed Northland farmer, Allan Titford, and his fight with Te Roroa'.

[2]  John Askin and Kerry Bolton made formal complaints to Māori Television. Mr Askin argued that the item was biased and unfair towards Mr Titford and those who shared his views on the Treaty, including Mr Ansell. Mr Bolton argued that he was inaccurately accused of supporting Mr Titford.

[3]  Māori TV upheld Mr Bolton's accuracy complaint and advised that all verbal and visual references to him had been removed from story. It declined to uphold any part of Mr Askin's complaint.

[4]  Mr Bolton referred his complaint to this Authority on the basis he was not satisfied with the action taken by Māori TV, having upheld his complaint. Mr Askin referred his complaint because he was dissatisfied with Māori TV's decision.

[5]  We have to decide whether the action taken by Māori TV having upheld Mr Bolton's complaint was sufficient, and whether the broadcast otherwise breached the accuracy, fairness, controversial issues, discrimination and denigration, responsible programming, good taste and decency, or violence standards, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[6]  The programme was broadcast on Māori TV on 19 May 2014. The members of the Authority have viewed a recording of the broadcast and have read the correspondence listed in the Appendix.

Nature of the item and freedom of expression

[7]  Native Affairs is described by Māori TV as its 'flagship current affairs programme', focusing on issues of importance to all people in New Zealand and particularly Māori.¹ The item focused on the 'political agenda' of those who continued to support Mr Titford, despite his recent conviction. It was introduced as follows:

Titford made headlines in the 1980s and '90s when he accused Te Roroa of being land-grabbing Māori who burned [down] his house. As it turns out, Allan Titford burned his own house down and last year was jailed on 39 convictions of sexual offending against his former wife [name], violence against her and their children, fraud, threatening to kill, perjury and firearms charges, and of course, arson... It is the people behind [Mr Titford] and their political agendas that have come under scrutiny.

[8]  The item contained an interview with sociologist Scott Hamilton who had written extensively on 'Titford supporters'. Dr Hamilton stated, 'When you look at these people, there's a pattern that emerges. They promulgate conspiracy theories... about New Zealand history... they deny obvious evidence that contradicts their theories and they tend to scapegoat minorities and to blame them for their own suffering and oppression'. The reporter commented that 'Titford gained support from many throughout the community, including... Kerry Bolton, former secretary of neo-Nazi group National Front and writer of alternative Māori history'. A photograph of Mr Bolton was shown.

[9]  In the second part of the programme, the presenter conducted a studio interview with Treaty lawyer and Mana Party president Annette Sykes, an opponent of Mr Titford, and Treatygate blogger John Ansell, who supported him.

[10]  This item carried a high level of public interest, and was of importance to Māori and particularly the people of Te Roroa. The 'Titford case', as it was known, attracted much publicity throughout the 1980s and 1990s and aroused controversy that divided the country on the place of the Treaty of Waitangi (the Treaty) and the jurisdiction of the Waitangi Tribunal over private property rights. Mr Titford's recent conviction relating to his vilification of Te Roroa was a legitimate topic for discussion on Native Affairs, as was the political views of those who continued to support him.

[11]  The high value of the speech, the significance of the issues to the target audience, and the broadcaster's freedom of expression, must be balanced against the potential harm likely to accrue to Mr Bolton, 'Titford supporters' including Mr Ansell, and the audience. The alleged harm was said to derive from inaccurate information and biased and unfair treatment of Mr Titford and his supporters.

Was the action taken by the broadcaster, having upheld Mr Bolton's accuracy complaint, sufficient?

[12]  Māori TV upheld Mr Bolton's accuracy complaint and he referred his complaint to this Authority on the basis the action taken by the broadcaster was insufficient. We are only looking at the decision of Māori TV and the gravity of the breach as determined by the broadcaster, to the extent this influences our conclusion on the action taken.

[13]  The accuracy standard (Standard 5) states that 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 does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.²

[14]  The accuracy standard only applies to material statements of fact. The Authority previously considered a complaint from Mr Bolton about an interview on Sunday with Chris Laidlaw in which Dr Hamilton accused him, among other things, of being a 'holocaust denier' and of having 'attempted to insinuate himself into... the anti-war movement'.³ In that decision, while the Authority had different views on whether the comments formed part of a factual programme, it unanimously held that the accusations did not amount to statements of fact but were opinions on which it could not possibly make a determination. The Authority commented that the complaint raised issues of fairness, not accuracy.

[15]  We consider that the assertion made by the reporter that Mr Bolton supported Mr Titford, was in the same realm as the claims made on Sunday with Chris Laidlaw. Like those statements, the assertion that Mr Bolton supported Mr Titford involved elements of interpretation, analysis and opinion, and we would not have found it to be a factual statement to which the accuracy standard applied. It is not something that we can readily assess as true or untrue, accurate or inaccurate. As with Mr Bolton's previous complaint, we see the statement that he was a 'Titford supporter' as raising issues of fairness, not accuracy. Accordingly, had it been up to us, we would not have upheld Mr Bolton's complaint under Standard 5. It follows that this Authority would not have found any action necessary.

[16]  The broadcaster is free to impose its own internal standards and any remedies or sanctions it sees fit if it considers those standards were breached. Māori TV has apologised to Mr Bolton in its decision on the basis it did not give him a right of reply and 'did not provide supporting visual evidence or other information to corroborate the source information'. It advised that all verbal and visual references to Mr Bolton had been removed from the story, including from the online version. The broadcaster also offered to broadcast an apology on Native Affairs, and Mr Bolton has indicated his satisfaction with this.

[17]  For these reasons, we decline to uphold this part of the complaint.

Was the item inaccurate or misleading in any other respect?

[18]  Mr Askin argued that it was inaccurate to describe those who supported Mr Titford's views on the Treaty as 'racists and members of hate groups'.

[19]  Māori TV considered that Mr Askin's concerns did not raise any issues under the accuracy standard or guidelines.

[20]  The item was presented from a Māori perspective and was critical of those who continued to support Mr Titford and his views on the place of the Treaty and an alternative New Zealand history. This was a matter of editorial discretion and a legitimate angle for the broadcaster to take, given the nature of the programme and its target audience. We are satisfied that comments made by Ms Sykes and Dr Hamilton, which created a negative impression of those who supported Mr Titford and his views, were clearly their personal opinions and assessments. These types of speech are exempt from the accuracy standard under guideline 5a. For example, Ms Sykes made the following comments about the 'Titford era':

There was huge public outcry with the fact that for the first time as a nation we were confronting the fact that colonisation had deprived and marginalised and dispossessed Māori and there was a call for justice from a number of militant groups within the Māori world, matched by hate groups from the Pakeha world, which caused for a big race relations reconciliation approach... Now the hate groups that have emerged... really need to confront their racism.

[21]  Mr Askin also argued that the programme did not acknowledge 'evidence that absolves Titford of guilt'. In our view, the item was not focused on Mr Titford's convictions per se, so there was no need to canvass the evidence presented in court, for and against his innocence.

[22]  Finally, we reject the argument that Native Affairs 'pretended' that Mr Ansell's views were not 'shared by serious academics'. No comment was made in the item about the validity of Mr Ansell's views or who, and how many people, shared them.

[23]  Overall, we are satisfied that the item was factually accurate and did not mislead, and we decline to uphold Mr Askin's Standard 5 complaint.

Did the item contain a discussion of a controversial issue of public importance requiring the presentation of alternative viewpoints?

[24]  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 standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.⁴

[25]  Mr Askin argued that no effort was made to 'educate... viewers as to the controversy surrounding the Titford case and the Treaty of Waitangi'. He said that a 'set formula' was advanced in regard to the presenter's treatment of Mr Titford and the Treaty, and Mr Ansell was 'set up as a straw man to be discredited and made to look foolish'. He said the 'evidence' Mr Ansell presented 'to prove [Mr Titford's] innocence was discarded with the words "well, he has been tried and found guilty already" (or words to that effect)'.

[26]  Māori TV considered that the story informed and educated viewers on the 'controversial different viewpoints' on the 'Titford case' and the Treaty. It asserted that balance was provided to the 'irresponsible reporting' that occurred over many years, stemming from the false accusations levelled at Te Roroa which had damaged the iwi's reputation. It said the item was not about contesting the innocence or guilt of Mr Titford, who had been found guilty in a court of law.

[27  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'.⁵

[28]  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'.⁶ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁷

[29]  As noted above, the item did not focus on the 'Titford case' or whether or not Mr Titford was innocent. The legitimacy of his convictions was not discussed in the item, so the broadcaster was not required to provide balance by way of alternative perspectives on his alleged innocence.

[30]  Rather, the focus of the item was the political views of those who supported Mr Titford, including his views on the Treaty. We consider that the place of the Treaty in our society is controversial and of public importance.

[31]  Guideline 4b to the balance standard allows us to take into account the programme's introduction, whether the programme approached the topic from a particular perspective (for example, public advocacy and access programmes) and whether viewers could reasonably be expected to be aware of views expressed in other coverage, when assessing whether a reasonable range of views have been presented. Here, the programme was clearly presented from a Māori perspective and it was therefore not surprising that it was heavily critical of views that were dismissive of the Treaty and the protections afforded to Māori.

[32]  Guideline 4b recognises that the requirement to provide balance may be lessened if the item is clearly approached from a particular perspective, as this item was. The less stringent requirement for balance was met by the inclusion of comments from the reporter and Mr Titford's supporters, relating to the Treaty, as follows:

• 'Many of Titford's supporters and their associates are pushing to re-write New Zealand's history and they reject Māori claims... They also promote an alternative version of the Treaty of Waitangi called The Littlewood Treaty... it's been used to dispute Māori land rights and the Treaty signed in 1840' (reporter)
• 'You ask any of our leading academics and they'll say that the final draft of the Treaty of Waitangi in English... went missing sometime in February 1840 but it was found again... in 1989 by the Littlewood family...This document of unification, this great gift that was given to us in 1840, got turned into a document of apartheid after 1975, by all of this interference with it and all this re-interpretation and re-invention, which has led on to the re-invention of a whole lot of our history as well'. (Titford supporter)

[33]  In addition, the presenter noted that she had invited various 'Titford supporters' on to the programme but they declined. She therefore interviewed Mr Ansell and he made these comments:

• 'It doesn't take long for untruths to come up... I believe the Treaty of Waitangi... has been misinterpreted fraudulently by putting up the wrong version'
• '...there is what is now regarded as the official treaty which bears no relation to the Māori [version] at all, unlike the Littlewood document, that got 39 signatures because it was only used once as an overflow document'
• 'If you want to know what the [Treaty] says in English you look at that draft, you look at the Littlewood draft...'
• 'The Treaty was a good document, it says that Māori surrender sovereignty... those chiefs knew they were surrendering sovereignty'
• '[Māori] were promised equal membership of the British Empire; no other native race had got that. It was a very fair British government at that stage... they wanted to be fair, they were fair and that document is a fair document... Māori – to say that they are underprivileged today, defies belief. Look at their standard of living, look at their life expectancy, look at all of the things that the British colonisation brought them, which they just seem to take for granted'.

[34]  These comments show that the item contained adequate balance, despite being transparently presented from a Māori perspective. The broadcaster made reasonable efforts and provided reasonable opportunities to present balancing viewpoints and we therefore decline to uphold this part of the complaint.

[35]  Mr Askin also argued that the presenter referred to 'racist hate groups' in her introduction. Having viewed the item, we are satisfied that no such comment was made by the presenter. Further, this would not raise any issues under Standard 4.

Was any other individual taking part or referred to in the item treated unfairly?

[36]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.⁸

[37]  Mr Askin argued that 'defenders' of Mr Titford (or 'Treaty sceptics') were 'misrepresented (as crackpots) and their views were denigrated and distorted'. He also argued that Mr Ansell was not given a fair opportunity to speak 'owing to the presenter's nasty hectoring'.

[38]  As the fairness standard applies only to individuals and organisations, not groups (such as those specified in the complaint), we have limited our consideration to whether Mr Ansell was treated unfairly.

[39]  Māori TV considered that Mr Ansell was given a fair opportunity to speak during the live debate. It said that his views 'dispute the orthodox and accepted history of Te Tiriti o Waitangi' and the robust line of questioning was intended to 'challenge him to provide a compelling argument for these beliefs'.

[40]  Although the presenter's interviewing approach was somewhat challenging and confronting, it did not cross the line of acceptability. Mr Ansell was given a fair opportunity to speak and to put forward his viewpoint, uninterrupted. We acknowledge that the presenter took a partial approach but this was to be expected given the nature of the broadcaster and the topic under discussion. Her interviewing style was robust but not unfair.

[41]  We therefore decline to uphold the fairness complaint.

Did the broadcast encourage discrimination or denigration against any recognised section of the community?

[42]  The discrimination and denigration standard (Standard 7) protects against broadcasts which encourage the denigration of, or discrimination against, a section of the community. The standard specifies sections of the community 'on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture of political belief'.

[43]  Mr Askin did not make any specific arguments under this standard, but referred to his fairness complaint which mentioned 'Treaty sceptics'.

[44]  Māori TV said the studio debate was a 'robust and fair discussion about two contrasting viewpoints' and did not consider that the discrimination and denigration standard applied to this content.

[45]  We find that so-called 'Treaty sceptics' and supporters of Mr Titford are not recognised sections of the community to which the standard applies. We therefore decline to uphold the Standard 7 complaint.

Were the other standards breached?

[46]  Mr Askin raised other standards in his complaint. He argued that the item breached the responsible programming standard because it ignored 'evidence' relating to Mr Titford's innocence and 'indoctrinated' Māori people with 'false information' and instilled 'a victimhood mentality' which promoted 'tribalism and solipsism'. In addition, he argued, 'The violence that was wrought on truth, good taste and decency was more than I could bear'.

[47]  In summary, we find that these standards were not breached because:

• the item did not contain sexual material, nudity, violence or coarse language as envisaged by the standard, or anything that would have offended or distressed the general audience in the context of a current affairs programme (Standard 1)
• the responsible programming standard is primarily aimed at ensuring that programmes are correctly classified and screened in appropriate timeslots. Native Affairs was an unclassified news and current affairs programme targeted at adults, so the standard is not relevant to this complaint (Standard 8)
• the item contained no violence, so the standard does not apply (Standard 10).

[48]  Accordingly, we decline to uphold the complaint that these standards were breached.

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

Signed for and on behalf of the Authority

Peter Radich
Chair

17 December 2014

Appendix

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

John Askin's formal complaint

1                 John Askin's formal complaint – 20 May 2014

2                 Mr Askin's referral to the Authority – 24 July 2014

3                 Māori TV's response to the Authority – 24 September 2014

Kerry Bolton's formal complaint

1                 Kerry Bolton's formal complaint – 3 June 2014

2                 Māori TV's response to the complaint – 11 June 2014

3                 Mr Bolton's referral to the Authority – 14 July 2014

4                 Māori TV's response to the Authority – 25 August 2014

5                 Mr Bolton's final comment – 26 September 2014

6                 Further comment from Mr Bolton – 27 September 2014

7                 Māori TV's final comment – 22 October 2014

¹http://www.maoritelevision.com/tv/shows/native-affairs

²Bush and Television New Zealand Ltd, Decision No. 2010-036

³Bolton and Radio New Zealand Ltd, Decision No. 2009-166

⁴Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁵ For 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)

⁶Powell and CanWest TVWorks Ltd, Decision No. 2005-125

⁷ See, for example, Dewe and TVWorks Ltd, Decision No. 2008-076

⁸Commerce Commission and TVWorks Ltd, Decision No. 2008-014