BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

A 3 News report looked at ACT Party leader Jamie Whyte's policies in the lead up to the general election. The presenter made comments about ACT's law and order policies and Mr Whyte's views on incest and polygamy. The Authority declined to uphold the complaint that the broadcast inaccurately described ACT's policies and Mr Whyte's views, and as such was unfair to ACT and Mr Whyte. The broadcaster made reasonable efforts to ensure that the item was accurate, and the comments were not unfair in the context of a robust election environment.

Not Upheld: Accuracy, Fairness

Introduction

[1]  A 3 News report looked at ACT Party leader Jamie Whyte's policies in the lead up to the general election. The presenter made comments about ACT's law and order policies, in particular a proposal about weapons and shopkeepers, and Mr Whyte's views on incest and polygamy.

[2]  Shaun Grieve complained that the broadcast was inaccurate and misrepresented the ACT Party and Jamie Whyte, which was unfair.

[3]  The issue is whether the item breached the accuracy and fairness standards as set out in the Free-to-Air Television Code of Broadcasting Practice.

[4]  The item aired on 12 September 2014 on TV3. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Was the item inaccurate or misleading?

[5]  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.¹

[6]  Mr Grieve took particular issue with the following comments made in the item:

• 'The ACT Party's attempt to grab headlines with a populist law and order policy has backfired';
• ACT's policy was to 'arm shopkeepers'; and
• Mr Whyte said that 'polygamy was acceptable'.

'The ACT Party's attempt to grab headlines with a populist law and order policy has backfired.'

[7]  Mr Grieve argued that the presenter's statement that the policy was intended to be headline grabbing was factually incorrect as 'the newsreader had no way of knowing that the ACT Party was attempting to grab headlines'. He said that the broadcaster's description of the policy having 'backfired' was incorrect.

[8]  Guideline 5a of the accuracy standard exempts commentary and analysis from the requirement for accuracy. These references in the introductory statement to the item – to ACT attempting to 'grab headlines', to that attempt having 'backfired' (not the policy), and to the policy being 'populist' – were descriptive, rather than being statements of fact. In the context of a robust election environment, viewers would have understood the phrases to be political commentary and so would not have been misled. We therefore decline to uphold this part of the complaint.

ACT's policy was to 'arm shopkeepers'

[9]  Mr Grieve argued that the reference to 'ACT's plans to arm shopkeepers' could only be taken by viewers to mean that 'the ACT Party intended to provide weapons to shopkeepers' and wanted to change firearms laws to do so. In the item the reporter said:

Yes, ACT leader Jamie Whyte wants it to be legal for shop owners to keep weapons in their stores; he's not ruling out guns.

[10]  Mr Grieve argued that in fact ACT's policy was simply a continuation of the current law, which allows shopkeepers to keep guns if the shopkeepers are licensed and if the guns are locked up with ammunition stored separately.

[11]  Having carefully reviewed all of the information before us, including other media reports of ACT's policy announcement, we consider that the way Mr Whyte characterised the policy did not make clear: whether or not the policy would involve a law change; under what conditions a shopkeeper is currently allowed to keep a weapon; and whether or not this differed from what ACT was proposing. The item contained a number of statements, including direct comments from Mr Whyte, that were, in our view, ambiguous and in parts contradictory:

• 'In some kinds of shops, they should feel free to keep a weapon if they want.' (Direct quote from Mr Whyte)
• 'Well, it [a shotgun] would never get used if they [shopkeepers] did that [kept shotguns locked up, as per the current law], because as they say...by the time they tried to go to it, and get the bullets, which would have to be in a different location, they'd be dead.' (Direct quote from Mr Whyte)
• '[Mr] Whyte's been forced to clarify that firearms laws would not be changed, so when it comes to shotguns under the counter they would have to be locked up, unloaded and only used by a gun licence holder.' (Reporter paraphrasing Mr Whyte)

[12]  We also note that a New Zealand Herald article reported Mr Whyte as announcing:²

What ACT proposes here should reassure the shopkeepers of New Zealand. ACT says it will not be illegal for a shopkeeper to keep a weapon in their own shop. [our emphasis]

[13]  Any misunderstanding about ACT's policy was in our view a result of the way Mr Whyte presented the policy, rather than inaccurate reporting by 3 News. Other media outlets including the Herald evidently took the same interpretation as TV3. We do not agree that any part of the item suggested, as Mr Grieve argued, that ACT intended to 'provide weapons' to shopkeepers.

[14]  Overall, we are satisfied that the broadcast would not have misled viewers in relation to ACT's policy and we decline to uphold this part of the complaint.

Mr Whyte said that 'polygamy was acceptable'

[15]  Mr Grieve also argued that it was inaccurate for the reporter to state that '[it] was Whyte who said that incest shouldn't be illegal and polygamy was acceptable' because Mr Whyte had not at any time said this. He said the statement referred to an earlier interview on The Nation in which Mr Whyte 'was really trying to shrug off a deliberate attempt by the interviewer to get... comment on polygamy for the sake of a headline'. Mr Grieve argued that Mr Whyte only agreed 'to the philosophical argument that if incest is acceptable so too is polygamy but the statement that incest and polygamy are acceptable [was] the interviewer's not [Mr] Whyte's.'

[16]  MediaWorks referred to a New Zealand Herald article which it said 'supports the statement in relation to incest'.³ It also said that the transcript of the interview referred to by Mr Grieve 'shows that Mr Whyte responded positively to a question about the acceptability of polygamy amongst consenting adults if the same principles applied'.

[17]  The first question is whether the reporter's statement about polygamy was a 'material point of fact' to which Standard 5 applied. Although the introduction to the item focused on shopkeepers and weapons, the overarching purpose of the item was to consider how ACT was faring in the election campaign and the extent to which it was supported by its coalition partner. With this in mind, we consider the statement about polygamy was a material point of fact, as it had the potential to influence viewers' perception of Mr Whyte and the validity of ACT's policies.

[18]  Having determined the statement was material, the next question is whether the broadcaster made reasonable efforts to ensure that statement was accurate. During Mr Whyte's interview on The Nation, a reporter put to Mr Whyte that, 'There is a logical step from incest being acceptable between consenting adults to polygamy being acceptable between consenting adults, according to your political views.' Mr Whyte appeared to agree, saying, 'Yes, but...'

[19]  As Mr Grieve conceded, Mr Whyte never clarified his position on polygamy despite knowing it had been raised as an issue. Politicians must expect to have their comments and views picked up by the media and scrutinised. Based on his comments on The Nation we think it was open to the reporter to make the statement that Mr Whyte said 'polygamy was acceptable'.

[20]  We therefore decline to uphold this part of the accuracy complaint.

Was the item unfair to Jamie Whyte or the ACT Party?

[21]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to. 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.⁴

[22]  Mr Grieve made the following arguments in relation to the fairness standard:

• it was 'unfair not to allow the ACT Party not to respond to the newsreader's claim that this was an attempt to grab headlines';
• labelling the policy as 'populist' and having 'backfired' in the introduction to the item denigrated the ACT Party and the policy;
• the item ignored the main policies ACT had announced, and did not report the actual policy suggested by ACT in relation to shopkeepers;
• the item was demeaning in saying that Mr Whyte was 'forced' to clarify the policy, 'when in fact it was [the reporter's] own ignorance of the law and her misreading of ACT's speech... which forced [Mr] Whyte to clarify'; and
• the reporter misrepresented the policy to the Prime Minister in order to 'get a demeaning response' from him, namely, that the policy was 'a bad idea' and 'a recipe for disaster'.

[23]  MediaWorks argued that it was fair to state that the policy announcement was attempting to grab headlines 'because it was the election period and all political parties are trying to gain media coverage of their policies'. It also said that calling the policy 'populist' was a 'commentary on the nature of the policy' and 'should not be misconstrued as being negative'. It said that it was not required to cover every party's policy and it 'focused on the most newsworthy element of this release', which was routine practice. MediaWorks said that the 'policy statement isn't clear on the current status of the law and the report offered further clarifications'. It also said that the comments made by Mr Key were related to 'the fact that Mr Whyte had not ruled out arming shopkeepers with guns' and that Mr Key 'is not obliged to comment to the media on any issue relating to the policy or conduct of other election candidates or parties'.

[24]  The Authority has previously recognised that the threshold for finding a breach of the fairness standard in relation to politicians or public figures is higher than for a layperson or someone unfamiliar with dealing with the media, commenting:⁵

The Authority observes that the fairness standard does not prevent criticism of public figures. Indeed, it is an essential element of free speech that even the most trenchant criticism of public figures be allowed...

[25]  The item was broadcast during a robust election environment, during which reporters routinely editorially select angles for their stories and offer political commentary on party policies. It is not required in the interests of fairness for reporters to cover every single policy announced by a political party. As a politician and ACT Party leader, and particularly during the election campaign, Mr Whyte should have expected that any comments he made to reporters, on ACT policies or other issues, would be 'sound-bited' or picked up on by media and closely scrutinised. He should have expected scrutiny about his public view on incest and any associated lines of questioning following his interview on The Nation. Politicians have ample opportunity to discuss and clarify their policies during the lead up to an election.

[26]  Additionally, as stated above at [11], Mr Whyte's views on arming shopkeepers were not entirely clear; in some respects ACT purported to support the current law, which seemed to contradict other comments from Mr Whyte about ACT's law and order policies. The public comment and conjecture that followed, both given by reporters and sought from John Key and Labour Party leader David Cunliffe, carried public interest and was legitimate to report on in the week before the general election.

[27]  We are satisfied that Mr Whyte and the ACT Party were not treated unfairly and we decline to uphold the Standard 6 complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
5 February 2015

Appendix

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

1      Shaun Grieve's formal complaint – 4 October 2014
2      MediaWorks' response to the complaint – 4 November 2014
3      Mr Grieve's referral to the Authority – 24 November 2014
4      MediaWorks' response to the Authority – 27 November 2014

¹ Bush and Television New Zealand Ltd, Decision No. 2010-036

² ‘Election 2014: Act policy a ‘recipe for disaster’, New Zealand Herald, 12 September 2014

³ ‘Act Leader Jamie Whyte stands by incest comments’, New Zealand Herald, 26 February 2014

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

⁵ Kiro and RadioWorks Ltd, Decision No. 2008-108