BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

  An item on Story covered the ongoing story of presenter Heather du Plessis-Allan’s mail-order purchase of a firearm for an earlier item, and the subsequent police investigation and search of her house. The Authority did not uphold a complaint alleging that the presenter’s reference to ‘legal loopholes’ within the mail-order firearm purchase system was inaccurate and unfair to the parties concerned because the firearm was procured illegally. The presenter used the term ‘loophole’ rather than ‘legal loophole’ and this was an accurate description of the mail-order system prior to police action. The item further did not unfairly represent the purchase process or otherwise result in unfairness to any individual or organisation referred to.   Not Upheld: Accuracy, Fairness   

Introduction 

[1]  An item on Story covered the ongoing story of presenter Heather du Plessis-Allan’s mail-order purchase of a firearm for an earlier item, and the subsequent police investigation and search of her house. Presenter Duncan Garner said:

We told Police [of the mail-order firearm purchase] and within a matter of hours they’d changed the rules, which is an admission that even the police thought that the system we had here in New Zealand had loopholes and it simply wasn’t good enough. 

[2]  Alec Melville complained that the item was inaccurate, as there was no ‘legal loophole’ that enabled the purchase of the firearm to occur because it was procured illegally, and unfair to the ‘parties concerned’ which he alleged were New Zealand Police, the gun dealer involved, all firearms dealers and the New Zealand public.    [3]  The issue is whether the broadcast breached the accuracy and fairness standards as set out in the Free-to-Air Television Code of Broadcasting Practice.   [4]  The item was broadcast on TV3 on 1 December 2015. 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 broadcast 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 Melville argued the description of the mail-order firearm purchase being possible due to a ‘legal loophole’ was misleading and inaccurate. He stated there was no mistake or omission in the law which permitted the purchase to occur, because the method used by Ms du Plessis-Allan was ‘deceptive’ and ‘unlawful’.   [7]  MediaWorks noted that the item did not describe the mail-order purchase of the firearm as being possible due to a ‘legal loophole’. Rather, the term ‘loophole’ referred to gaps in the system for mail-order firearm purchases which enabled the avoidance of strict compliance with the legally mandated steps. MediaWorks argued there was a significant difference between the idea of loopholes in the system and a ‘legal loophole’, and maintained viewers would have understood ‘loopholes’ in the first sense and would not have been misled.   [8]  We note first of all that it is not the Authority’s task to determine whether Ms du Plessis-Allan’s method of purchasing the firearm was lawful or unlawful (though we note this was the subject of a separate police investigation and ultimately she was not charged²). Our role is the narrow one of considering whether the item subject to complaint was inaccurate or would have misled viewers.    [9]  We have carefully reviewed the broadcast and we are satisfied that the term ‘legal loophole’ was not used in the item. As outlined in paragraph [1], Mr Garner’s use of the term ‘loophole’ related to the mail-order system for purchasing firearms in New Zealand. The word ‘loophole’ in and of itself does not necessarily mean a legal loophole and we do not consider the way in which the term was used during the item was inaccurate or misleading.    [10]  There were evidently some deficiencies in the mail-order system for purchasing firearms, which New Zealand Police acknowledged and quickly remedied as a result of the first Story item for which Ms du Plessis-Allan purchased the gun, broadcast on 21 October.³ In the 21 October item, the President of the Police Association agreed that Story had ‘expos[ed] what is a very real issue’ and commended the broadcaster for its ‘good work’, as he considered the mail-order firearm purchase system had been enabling criminal access to firearms.    [11]  Here, the presenters repeatedly acknowledged that they should not have been able to purchase the firearm using the process they did, so viewers would have understand the purchase was not entirely legitimate. It is also reasonable to assume a significant number of viewers, at the time of this follow-up item, would have been aware due to widespread media coverage of the controversy surrounding the lawfulness of Ms du Plessis-Allan’s purchase of the firearm.⁴ We therefore do not think that viewers would have been misled in the manner alleged by the complainant.     [12]  For these reasons we do not uphold the complaint under Standard 5.  

Was any individual or organisation taking part or referred to in the broadcast treated unfairly?

[13]  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.⁵ 

[14]  Mr Melville considered the item was unfair to the ‘parties concerned’, who he said were New Zealand Police, the gun dealer involved, all firearms dealers and the New Zealand public. He complained that the editing out of the full process undertaken to purchase the firearm was a distortion of the original event, because if the full purchase process was shown then viewers would have been aware that Ms du Plessis-Allan committed fraud. Mr Melville also felt the item was unfair for the reasons outlined in his arguments under the accuracy standard.   [15]  MediaWorks argued the editing of the full process of the firearm purchase was not done to ‘distort’ the process in the sense envisioned by the fairness standard, but rather to ensure the broadcast did not present the method in a way which viewers could replicate. It maintained that the omission of certain aspects of the purchase would not have affected viewers’ understanding of the item. MediaWorks noted that the item clearly explained that Police had changed the process as a result of the Story investigation, and it did not consider that discussing the nature of the police investigation into Ms du Plessis-Allan or the search of her house was unfair.    [16]  The fairness standard applies only to individuals or organisations taking part or referred to in a broadcast. We therefore are unable to consider the standard in relation to firearms dealers generally and the New Zealand public.   [17]  The gun dealer was not mentioned by name during this particular item, though its name could be seen at the top of the mail-order form which was briefly depicted onscreen. We do not think this brief image resulted in the gun dealer being treated unfairly, particularly as it was not the focus of this item. We also note that ample comment was included from the gun dealer in the earlier 21 October item regarding the original gun purchase.   [18]  We are also satisfied that the New Zealand Police as an organisation was not treated unfairly. While direct comment from Police was not included in the item, the presenters were not unduly critical of any Police action. They clearly stated that Police had acted swiftly to change the rules for mail-order purchases of firearms to fix any loopholes in the system. Ms du Plessis-Allan also explicitly stated she would not ‘accuse the police of intimidation or a waste of resources’ as others had done, but would merely ‘stand by the story… it was good journalism’. While some of the politicians interviewed during the item did criticise Police for ‘wasting resources’ searching Ms du Plessis-Allan’s home, these statements were typical of a robust political environment and were balanced by statements from the Police Minister and other politicians that it was a matter for Police how they use their resources. New Zealand Police is an organisation that is well-used to dealing with media and has the capability and resources to respond to any statements made about them, critical or otherwise.   [19]  The guideline cited by Mr Melville (guideline 6b to the fairness standard) is concerned with excerpts of footage or comments which are unfairly edited in a way that distorts them or presents them out of context, therefore impacting on the reputation of the individual or organisation featured. This is not what happened here. This was a follow-up item which summarised the initial firearm purchase in order to provide background context to the subsequent police investigation and search of Ms du Plessis-Allan’s home, which formed the focus for this item. The broadcaster was justified in editing the purchase process to highlight the important aspects while ensuring that any essential instructional details were omitted so viewers could not replicate the purchase. Its reasons for omitting aspects of the process were legitimate and did not result in any person or organisation being treated unfairly.   [20]  Accordingly we do not uphold any part of the complaint under Standard 6.   For the above reasons the Authority does not uphold the complaint.   Signed for and on behalf of the Authority       Peter Radich Chair 14 April 2016    

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:   1      Alec Melville’s formal complaint – 1 December 2015 2      MediaWorks’ response to the complaint – 19 January 2016 3      Mr Melville’s referral emails to the Authority – 15 January 2016 and 21 January 2016 4      MediaWorks’ response to the Authority – 15 February 2016     

¹Bush and Television New Zealand Ltd, Decision No. 2010-036 ² ‘Police won’t lay charges but du Plessis-Allan still potentially under the gun’, stuff.co.nz, 2 March 2016, http://www.stuff.co.nz/national/77458239/Police-won-t-lay-charges-but-du-Plessis-Allan-still-potentially-under-the-gun ³ See Lawrence and MediaWorks TV Ltd, Decision No. 2015-099 ⁴ See, for example, ‘Investigation continuing into Heather du Plessis-Allan's gun purchase’, stuff.co.nz, 3 November 2015, http://www.stuff.co.nz/entertainment/73616400/investigation-continuing-into-heather-du-plessisallans-gun-purchase ⁵Commerce Commission and TVWorks Ltd, Decision No. 2008-014