Francis, Gouge and Thompson and TVWorks Ltd - 2011-104

Members

  • Peter Radich (Chair)
  • Te Raumawhitu Kupenga
  • Leigh Pearson
  • Mary Anne Shanahan

Complainants

  • Ross Francis of Masterton
  • Nick Gouge of Hamilton
  • Alasdair and Joan Thompson of Auckland

Dated

3rd April 2012

Number

2011-104

Programme

Campbell Live

Channel/Station

TV3

Broadcaster

TVWorks Ltd


Complaints under section 8(1B)(b)(i) and section 8(1C) of the Broadcasting Act 1989
Campbell Live – items reported on controversial comments made by the CE of the EMA that some female workers are less productive because they take sick leave when they are menstruating – interviewed CE and portion of the interview broadcast – included sarcastic comments and caricature of CE singing – panel discussed comments – allegedly in breach of privacy, controversial issues, accuracy and fairness standards

Findings
Standard 6 (fairness) – interview footage provided a fair summary of Mr Thompson’s character and conduct – was not necessary in the interests of fairness to broadcast the full interview – items not unfair to Mr Thompson, given his position as a public figure and that the comments reported on were made during a political discussion in the public arena – not upheld by majority

Standard 5 (accuracy) – items accurately reflected Mr Thompson’s behaviour in the full interview – we are not in a position to determine whether the items created a misleading impression about Mr Thompson’s personality traits – not upheld

Standard 4 (controversial issues) – items focused on Mr Thompson’s comments and his competency to fulfil his role as CE of the EMA, rather than the wider issue of pay equity – both issues amounted  to  controversial issues of public importance – Mr Thompson was provided with a sufficient opportunity to explain his comments in the interview and was invited to appear on 24 June item – viewers would have been aware of alternative significant viewpoints on the wider issue – broadcaster provided reasonable opportunities and made reasonable efforts to present significant viewpoints in the items and in other programming within the period of current interest – not upheld

Standard 3 (privacy) – woman employee referred to in 23 June item was not identifiable – not upheld

This headnote does not form part of the decision.


Introduction

[1]  Items on Campbell Live, broadcast on TV3 at 7pm on 23 and 24 June 2011, reported on controversial comments made by Alasdair Thompson, the chief executive (CE) of the Employers and Manufacturers Association (EMA), that some female workers are less productive because they take sick leave when they are menstruating.

[2]  Ross Francis, Nick Gouge and Alasdair and Joan Thompson made formal complaints to TVWorks Ltd, the broadcaster, alleging that the items were inaccurate, unbalanced and unfair, in particular because only a part of the interview with Mr Thompson was broadcast. In addition, Mr and Mrs Thompson considered that the item broadcast on 23 June breached Mr Thompson’s privacy, as well as the privacy of his employees.

[3]  The issues here are whether the items breached Standards 3 (privacy), 4 (controversial issues), 5 (accuracy) and 6 (fairness) of the Free-to-Air Television Code of Broadcasting Practice.

[4]  We have viewed recordings of the broadcasts complained about many times. We have carefully read the correspondence listed in the appendix. We have viewed the full interview many times. We have also, as a matter of background, looked at the interviews which TV One News and TV3 News conducted. All of this material was available on internet websites. We have given these matters careful and anxious thought. We recognise the importance of these issues to Mr Thompson. We have not been asked to conduct a hearing with oral evidence and oral submissions, and we do not consider this to be necessary.

Outcome

[5]  The interview complained about was one which Mr Thompson as a public figure, consented to give. The full interview always had to be edited to be broadcast. The editing of an interview of this kind is a matter of editorial discretion but it must be fair in all of the circumstances. Our entitlement to interfere and limit any broadcast is governed by the New Zealand Bill of Rights Act 1990 (Bill of Rights Act) and if we are to impose limitations on the freedom of expression which this Act protects, we must demonstrate that they are justified. The higher the degree of importance of what is being broadcast, the greater the justification must be.

[6]  After careful and extended consideration of these complaints, which have raised complex and difficult issues, a majority of the Authority (Peter Radich, Leigh Pearson and Te Raumawhitu Kupenga) has reached the conclusion that we ought not to limit the freedom of the broadcaster to express the issues as it has done and the freedom of viewers to receive the broadcasts in the form chosen by the broadcaster. We have concluded that in all of the circumstances and having regard to the standards to be maintained in broadcasting, the broadcasts were not unfair, they did not breach Mr Thompson’s privacy, and they were not inaccurate or unbalanced. We will now set out our detailed reasons for reaching these conclusions.

[7]  The minority view of Mary Anne Shanahan in relation to Standards 4 (controversial issues), 5 (accuracy) and 6 (fairness) is expressed separately following our reasoning. The minority agrees with the majority’s reasoning in relation to the alleged breaches of privacy.

Majority View (Peter Radich, Leigh Pearson and Te Raumawhitu Kupenga)

Background

[8]  The items which are the subject of these complaints stemmed from comments made by Mr Thompson on the Mike Hosking Show broadcast on Newstalk ZB on the morning of 23 June 2011. The comments were made during a discussion about gender pay issues, and in particular a Private Member’s Bill to amend the Equal Pay Act, introduced by the Green Party MP, Catherine Delahunty. The purpose of the Bill was to ensure that information about pay rates in the workplace would be available to employees and unions to test whether there was any gender-based discrimination.

[9]  The participants in the radio discussion were Helen Kelly, the President of the Council of Trade Unions, Mr Thompson, and the radio host. In the course of the discussion Mr Thompson stated:

No that the problem is statistics don’t tell the whole truth. They don’t explain why this happens. Look let me get down to tin tacks here. It is unfortunate, if you like, that men and women are different. They are, the fact is women have babies, they take time out of their careers to have babies. Women have, look I don’t like saying this, this is how contentious this is, but here’s a fact of life. If you want to keep some statistics look at who takes the most sick leave. Why do they take the most sick leave, women do in general, why, because you know once a month they have sick problems, some do, they have children that they have to take time off to go home and take leave. Therefore their productivity, it’s not their fault, it may be because they haven’t got it sorted out with their partners where the partners take more responsibility, for what happens outside work. There are all of these issues and none of this is covered in the statistics that this bill wants to sort out. Now I am sorry I don’t like saying these things because it sounds like I’m sexist but it’s a fact of life. [our emphasis]

[10]  Mr Thompson’s comments, in particular his assertion that some women take more sick leave because “once a month they have sick problems”, attracted some opposing response in the interview, but it was outside the interview that the issues began to gather heat. Comments began to develop on radio, in the social media and in other places. Much of this comment was negative to Mr Thompson and the views he was thought to have expressed.

[11]  As a result of these comments, Mr Thompson was interviewed by television reporters on three occasions later that day and issues surrounding the perceived views expressed became issues of widespread public interest. Subsequently, Mr Thompson’s position as the CE of the EMA apparently became untenable and ultimately, he ceased to hold that position.

The Campbell Live Interview

[12]  On the afternoon of 23 June 2011, Campbell Live reporter Mihingarangi Forbes and a camera crew arrived unannounced at the offices of the EMA to interview Mr Thompson to follow up on what was a developing news story. This was Mr Thompson’s third television interview that day.

[13]  Mr Thompson agreed to be interviewed but he set some conditions. Broadly, these were that Ms Forbes had to have first listened to the radio broadcast and had to agree to letting him have his say without undue interruption. There appeared to be an acceptance of these conditions.

[14]  This interview started off with some discussion of a general and background kind. Mr Thompson proceeded to state his views and those of the EMA in relation to gender discrimination issues. He emphasised his opposition, and that of the EMA, to discrimination on the basis of gender. He emphasised that his position and that of the EMA was that remuneration should be related to productivity. He expressed views which were complimentary of women. Mr Thompson appeared to be referring to notes and appeared to be wanting to put balanced views on record and this was no doubt to counterbalance what was being alleged against him as a consequence of the radio interview that morning. Ms Forbes sought to take Mr Thompson back to his comments on Newstalk ZB, stating, “Tell me what it is that you think is the problem?” Mr Thompson proceeded at some length to try to explain his comment that, in his opinion, women are different to men in employment. At one stage he stated:

What I said was, start again, there are many reasons why people’s productivity is different, the main reason in my opinion is how passionate you are about your job and about your customers and your clients, and so on... The thing that got me into trouble was saying that women fortunately in my opinion are different to men in merit of employment and the point I was making is that they take more leave, they take more maternity leave, they might decide to interrupt their careers to have children and raise them. They take, records show and I don’t think there’s any stats on it... one reason is they do take sick leave, some women, have immense problems with their menstruation, immense problems, and you know they can pop a lot of Paracetamol and drag themselves into work and it’s difficult for them. It is time factor in productivity issues because what the EMA stands for and what I stand for is equal pay for equal work, equal pay for equal productivity, advancement of women in the workplace...

[15]  At a later stage, Ms Forbes asked Mr Thompson to clarify his position by saying, “So what you were saying is that those were some of the reasons why women are paid less?” and he responded, “In some cases, it can affect their productivity. That was the point I was making. Now by and large most women don’t have a problem.”

[16]  A contest then appeared to develop where Mr Thompson endeavoured to take the discussion away from his comments on Newstalk ZB that had caused some trouble, but Ms Forbes persisted in going in that direction. She questioned Mr Thompson about the issue of the relative merit of men and women in the workplace and she asked him to justify his comment that women’s productivity in the workplace was significantly affected by menstruation. In response to her questions, Mr Thompson referred to his experience within his own association where women were the highest paid employees in a particular section of work. He also referred to certain record-keeping within the association and which seemed to indicate that women employees in the association may have had a “...problem with their period.” He picked up on a point that Ms Forbes had made and said that if she was more productive than other people in her workplace, she should be paid more.

[17]  Mr Thompson continued to resist the line of questioning of Ms Forbes relating to his earlier comments, but she persisted. She introduced her own personal situation as a woman, a mother and an employee. Ultimately, the interview degenerated to a point where Mr Thompson became visibly unhappy and proceeded to disconnect from the interview. There was a tense exchange between Mr Thompson and Ms Forbes. As we set out below, it was this portion of the interview that was broadcast.

Campbell Live Item – 23 June 2011

[18]  The Campbell Live item on 23 June 2011 was introduced by the host, John Campbell, as follows:

We have Alasdair Thompson explaining why women are worth less in the workplace.

[19]  Part of the interview consisting of the last 4.18 minutes out of the complete 27.57 minute interview was then broadcast. This began with a statement from Mr Thompson:

Women more frequently are off work for more time than most men. That’s not a criticism of women, it’s just a fact. We are the representatives of employers, we talk to employers all the time. They tell us the same thing. There is no statistics kept in public about your record at your work, but it doesn’t mean to say that employers don’t keep these records, they have to, because they have to record it, and I base my information on that. You can disbelieve it if you want, I am not a liar, I am telling you the truth.

[20]  Ms Forbes asked, “So when someone is sick here you ask them why they are sick and they tell you because they’ve got heavy period pains?” At this point, as noted in paragraph [17], the interview began to degenerate. Mr Thompson stood up and proceeded to leave the interview room, and Ms Forbes protested, “I’ve sat here and listened to everything about your Bill and then when I get to ask you a question about what you’ve said this morning...” Mr Thompson then approached Ms Forbes, shaking his hands in front of him and standing face-to-face with her. His conduct at this stage was likely interpreted by some as bullying and intimidatory behaviour. He and Ms Forbes then engaged in the following exchange:

Thompson:    You’ve asked me this question over and over again in one way or another,
                    and I’ve answered it over and over again...

Forbes:         Because you said it on the radio and people are offended by it.

Thompson:    I’ve answered that question too.

Forbes:         So okay, maybe you should resign then, because you can’t represent half of
                    the population.

...

You don’t really represent me very well as a female because you believe that I am less productive...

...

Thompson:    Oh mate, I’ve given you answers to that. I have told you quite the opposite. I
                     have agreed you should be paid more. Don’t put words in my mouth... you
                     are lying to me right now. You are saying to me things I have replied to and
                     then you’ve totally ignored that and said that “I think you think that I am less
                     productive because...”

Forbes:         ...I wanted to know where you got your information or research to base your
                     statement this morning on.

     ...

Thompson:    The woman who keeps the records, who understands and knows who are off
                     and why they’re off. One of the reasons a woman keeps the record here is
                     because a lot of times it’s not appropriate for a man to be, for her to discuss
                     what she might want to say to you because she is uncomfortable with it.

[21]  Mr Thompson then asked, “When do you want to roll again?”, thus intimating that he had stopped the interview. Ms Forbes rejected this contention stating, “It’s an interview, we’ve been rolling the whole time”, and, “You didn’t say you were off the record”. At the end of the interview, she asked, “Do you think you’ve been offensive to women today?” Mr Thompson stated, “Some women have taken offence”, and “I’ve apologised to the people who have been offended by what I’ve said, and I am truly sorry”.

[22]  Throughout the programme, the host advised that Campbell Live was running a text poll which asked viewers to vote on the question, “Should Alasdair Thompson resign for his comments about women in the workplace?” At the end of the programme, Mr Campbell reported that with more than 10,000 people voting, 84 percent of the voters were in favour of Mr Thompson’s resignation.

Campbell Live Item – 24 June 2011

[23]  The following evening on 24 June 2011, the Alasdair Thompson situation was again the subject of Campbell Live. Mr Campbell introduced the programme with the following comments: 

Kia ora everyone, welcome to the show, and a special hello to menstruating women you slackers – all you’ve done today is get up, make breakfast, make school lunches, get the kids to school, get home in time to get the kids from school, or organise someone else to do it, make dinner, tidy up, fold the washing, and now you are just sitting there doing nothing, waiting for Next Top Model – you should be in the fields or darning your husband’s socks or something.

Anyway, while you’re slacking about, here is a quiz for you: what’s Alasdair Thompson’s favourite song? [Song playing Only Women Bleed]. Yes that’s seriously wrong for our younger viewers, that’s what music used to sound like in the ’70s... and what’s Alasdair Thompson’s second favourite song? [Song playing I See Red].

Okay, enough with the period jokes. On a more serious note we did ask Alasdair Thompson into the studio tonight to revisit his three interviews yesterday, one of course with our own Mihingarangi Forbes. He declined, nor would anyone from the [EMA] appear to express their point of view.

[24]  Mr Campbell’s reference to Mr Thompson’s “favourite song” was accompanied by caricatures of Mr Thompson singing Alice Cooper’s Only Women Bleed, and the Split Enz song I See Red. The host referred to statistics released by the New Zealand Public Service Association, showing that men took 6.8 sick days a year off from work, and women 8.4 sick days. He also read a statement from Mr Thompson which said, “I have personally always supported equal pay for equal work, equal opportunity, respect and courtesy for both men and women in the workplace”.

[25]  Following further comment about Mr Thompson’s interview the previous day, a live discussion was broadcast in which the commentators expressed their disapproval at what they perceived to be Mr Thompson’s true position.

Freedom of Expression

[26]  Consideration of the Bill of Rights Act is fundamental to our consideration and evaluation of these complaints. The complainants have asked us to hold that the broadcasts ought not to have been produced and presented in the way in which they were. They say that in some cases, material that was not broadcast ought to have been broadcast, and in other cases, material that was broadcast should not have been broadcast. They wish us to hold that the broadcaster erred in undertaking the broadcasts as it did. We are being asked to limit the right of freedom of expression which is provided for in the Bill of Rights Act. In terms of that Act, if we are to uphold a complaint we must impose only such limit on the broadcaster’s right of freedom of expression as is reasonable and we must be able to demonstrate that our limitation is justified. Put simply, we must be able to show that the harm done by the broadcast justifies any limitations imposed by upholding any part of the complaints under the nominated standards. When we speak of any harm being done by the broadcast, this need not be related to a particular person or persons, although it often is. The harm can be in a wider sense and the Act recognises that there is a general harm in limiting the right of freedom of expression in a democratic society. If we are to impose limitations, we have to show that they are counterbalanced by other adverse consequences which would arise if limitations were not imposed.

[27]  When we apply these principles, we must do so on a case by case basis. Each case will be different and the weightings will be different. We need to attribute a value to what was broadcast and we need to attribute a weight to the consequences that occurred, or may have occurred, in a particular case. In an open and democratic society, limitations on what can be said and on what can be expressed are not to be imposed without careful consideration.

[28]  The right to free expression includes the freedom to seek, receive, and impart information and opinions of any kind in any form. In the broadcasting standards context, the broadcaster has the right to impart such information, while the audience has a corresponding right to receive it.

[29]  The broadcasts, the subject of these complaints, involved a public figure being interviewed and the views he expressed being challenged. The interviewing of public figures by journalists is an important feature of life in a democratic society. Such interviews take numerous different forms and have numerous different purposes. At one end of the spectrum, these interviews may be little more than opportunities for a public figure to express his or her views and have them conveyed to the public with little in the way of challenge. At the other end of the spectrum, there are those interviews in which a public figure is tested and challenged and has his or her position strengthened or weakened by that testing process.

[30]  In our view, when a person puts himself or herself into the public arena and wishes to speak on matters of public interest, he or she has to expect to be challenged. Sometimes it might not happen, but when it does it has to be accepted. Some people, when being interviewed, flourish when challenged and the challenge brings sharpness and piquancy to their responses. Others become defensive and yet others become aggressive in ways that are unhelpful to the arguments they seek to make. There are many shades and differences of response. The testing of people by questioning and challenge is commonplace and well understood in public life and in places such as the Courts. Those who enter these environments and work there have to expect that one day the discomfort of challenge may come upon them.

[31]  Mr Thompson was the public face of a large association of employers and manufacturers in New Zealand. His comments formed part of a political debate in the public domain as he endeavoured to represent that organisation. Mr Thompson has extensive experience as an advocate for employers in media and political environments, and has often appeared on radio, television and in newspapers. He was the CE of the EMA for 12-and-a-half years, and before that he was mayor of the Thames Coromandel area for nine years. Further, we have been informed by Mr Thompson’s counsel that he has previously been heavily involved in politics, including being a parliamentary candidate and vice president of a political party. In addition, he has been the spokesperson for a number of charities on a voluntary basis.

[32]  It is apparent that Mr Thompson wanted to use the interview as a platform for the exposition of his views and he did not want to be diverted from his intended programme, nor did he want to, or expect to be, challenged in what he intended to say. It is understandable that he would have wanted an opportunity to retrieve the situation which had developed since his morning radio interview, but of course every such opportunity carries with it the danger that the situation may be made worse.

[33]  We have judged the speech, on this occasion, to have high value. The value was not just in the issues being debated but also arose substantially from the challenge of a public figure and a prominent organisation. When public figures, who have to expect challenge, are challenged, this is a legitimate process and it is one which should not be limited without strong justification. We now move to consider whether, in this case, there was any such justification.

The Complaints

[34]  The complaints we have received have been broad-ranging and detailed. We have received detailed and extensive submissions from each of the complainants in relation to each broadcast and in relation to the standards they have raised. We have stood back from this detail and we have endeavoured to draw out the key aspects of the complaints and deal with them collectively and in categories. As we said in paragraphs [2] and [3] the complaints have raised issues of privacy, accuracy, balance and fairness.

Was Mr Thompson treated unfairly? 

[35]  Standard 6 (fairness) states that broadcasters should deal fairly with any person or organisation taking part or referred to in programmes.

[36]  An underlying objective of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct.1 This incorporates the value of ensuring that those criticised have a chance to defend themselves and that viewers are provided with sufficient information to enable them to make up their own minds and form their own impressions.

Editing of interview footage

[37]  The complainants argued that the interview footage was unfairly edited in a manner that distorted the overall views expressed by Mr Thompson in the full interview, and therefore denied him the right to express his own opinions. In particular, they said, by broadcasting only the last 4.18 minutes of the 27.57 minute interview, key contextual balancing material was removed. It was said, as an example, that the omission of Mr Thompson’s comments that were positive towards women, left viewers with an unfairly negative representation of his character and conduct. In respect of the 24 June item, the complainants argued that the inclusion of excerpts from the previous night’s interview distorted Mr Thompson’s views. They considered that the item should have included material from the full interview to ensure a degree of fairness and accuracy. 

[38]  The editing of interview footage is ordinarily a matter of editorial discretion for the broadcaster. It is inevitable that an interview of some 27 minutes will be heavily edited, and Mr Thompson, in some comments during the interview, accepted that this would happen.

[39]  The question for us is whether the end result, after editing, was deceptive in the sense that it distorted the meaning, created a misrepresentation, or unfairly omitted important material.

[40]  The portion of the interview which was broadcast was itself unedited. TVWorks contended that what was shown did not misrepresent the overall tone and content of the interview. Further, it said that Mr Thompson’s conduct in response to the questioning of Ms Forbes became the story, or at least a development of the day’s story. The broadcaster considered that it was valid and appropriate to broadcast what was shown, given Mr Thompson’s demeanour and conduct.

[41]  We believe that the portion of the interview broadcast, served to develop the story from the original Newstalk ZB broadcast. Like Mr Thompson, we were aware that the broadcaster would have had to edit an interview of this length for broadcast. We consider that what was broadcast was a fair representation of Mr Thompson’s views and we do not think that the exclusion of the substantial first part of the interview of 23 June was, on balance, unfair. While it may have been better to include or summarise some of Mr Thompson’s comments made during the first part of the interview, some of his views were expressed, albeit briefly, in the broadcast interview. For example, he stated:

  • “That’s not a criticism of women, it’s just a fact.”
  • “We are the representatives of employers, we talk to employers all the time. They tell us the same thing... and I base my information on that.”
  • “I’ve agreed with you and I’ve agreed you should be paid more...”
  • “I’ve apologised to the people who have been offended by what I’ve said, and I am truly sorry.”

[42]  In this respect, we disagree with the minority view that it was necessary to include more of Mr Thompson’s comments, particularly as Mr Thompson had also elaborated on his views in other media during the day of the broadcast. We do not think that, even if more of Mr Thompson’s views had been included, viewers’ perceptions of him would have changed.

[43]  Mr Thompson had, by his comments, polarised the views of many people. Those viewers who would have thought negatively of him after seeing the last part of the interview may well have thought negatively of him even if they had seen the first part as well. Many of those viewers who saw the final part of the interview and thought negatively of Mr Thompson, may have seen his behaviour as being belligerent, as alleged by the complainants. They may have had reservations about his earlier comments in relation to women. Other viewers would have looked at the final part of the interview and, even without the first part, may have been sympathetic and positive towards Mr Thompson. They may well have seen him as a man under pressure, a man who was tired and a man who was doing his best to try to control a situation that was spinning out of control. Those people sympathetic to Mr Thompson and his views would have identified with him and may have been offended by the pressure under which he was being put by the media. Some would have thought that he was doing his best to do his job even if things were not going well for him.

[44]  We consider that viewers were left to make up their own minds about Mr Thompson’s behaviour in the edited interview footage. With regard to the minority’s view at paragraph [125], we consider that in every case, in editing programme material, the broadcaster is required to make a judgement call about whether enough information is presented to enable viewers to form their own opinions. Here, we agree with the broadcaster that, given the high level of media coverage surrounding Mr Thompson’s comments, enough was included on this occasion. It is our firm view that if the item caused any harm to Mr Thompson’s reputation and dignity, this was not a product of unfair editing on the part of the broadcaster, but was the result of how Mr Thompson chose to conduct himself in the interview, and was largely self-imposed.

[45]  In the same way, we do not think that the editorial selections made in relation to the broadcast on 24 June unfairly or significantly affected the way in which Mr Thompson would have been perceived. In our opinion it is unrealistic to think that any negative views that emerged from what was broadcast on 23 June would have been changed by the broadcast on 24 June of earlier parts of the interview.

[46]  Accordingly, we decline to uphold this aspect of the fairness complaints.

Request to stop the interview

[47]  The complainants argued that the broadcast of the interview footage was unfair because Mr Thompson asked to stop the interview when answering a question about where he got his information that women take more sick leave, due in part, to menstruation.

[48]  This aspect of the complaints engages slightly different values of fairness compared to the general ones outlined above at paragraph [36], namely the value of trust in the integrity of broadcasters, in particular in terms of keeping promises about what content will and will not be broadcast.

[49]  We note that Mr Thompson asked to go off camera approximately 20 minutes into the interview, when Ms Forbes asked, “Based on what research did you come up with the fact that women are paid less because we have children and some people have problems each month?” He stated, “Let’s just go off camera for a minute okay... I want to tell you the answer and then I want to frame it for you on camera.” After referring to a woman who kept the records at his organisation, he stated, “Let’s go on camera.” He then proceeded to answer the question by referring to the woman who kept the records and to what he termed “flexibility arrangements” recorded by all employers.

[50]  This portion of the interview was not broadcast. It was not until about six-and-a-half minutes later, following the episode in which he lost his composure and after sitting back down, that Mr Thompson asked, “When do you want to roll again?” and “I stopped the interview”. Ms Forbes rejected this contention and stated “It’s an interview, we’ve been rolling the whole time”, and, “You didn’t say you were off the record... you walked away, you walked around and came back and stood in my face and yelled at me and then you sat down again, and now you’ve told me you’re back on the record”. Ms Forbes then continued with the last part of the interview and Mr Thompson continued to answer her questions.

[51]  Mr Thompson’s request to stop the interview was made in relation to an answer given to a question posed earlier in the interview, and his response in that regard was not broadcast. In particular, he requested to “go off camera for a minute”, and subsequently stated, “Let’s go on camera”, intimating that he was happy for the interview to resume. We consider that Mr Thompson’s assertion, made some six-and-a-half minutes later, that he had stopped the interview, reflected his concern that what had been recorded may have been unsatisfactory for him. In an attempt to recover the situation, and to try to keep that part of the interview from being exposed, he argued that this part of the interview was off the record, despite not making any prior request. As an experienced public figure, Mr Thompson would know the care to be taken with “off-the-record” and the need to obtain agreement with the journalist prior to stopping and starting an interview. In these circumstances, we do not consider that allowing the interview to proceed without ramification posed any threat to the value of having trust in the integrity of broadcasters.

[52]  We also note that Mr Thompson sought to stop the interview when asked for research to support his assertions. His answer was an anecdote. Given his position and the nature of his comments throughout the day, this is a key aspect of the interview that warranted broadcast.

[53]  Accordingly, we are satisfied that this aspect of the 23 June item was not unfair to Mr Thompson and we decline to uphold this part of the complaint.

Ms Forbes’ interviewing style

[54]  The complainants argued that the approach taken by Ms Forbes was unacceptable according to broadcasting standards. It was said that she was not fair and that she was wrong in introducing her own personal situation into the discussion.

[55]  Every interviewer has his or her own style and has to have the freedom to adopt his or her own style so long as broadcasting standards are maintained. Ms Forbes’ style on this occasion was to introduce her own situation as an employee and a mother when questioning Mr Thompson. We do not think that it was a breach of broadcasting standards for Ms Forbes to have introduced her own personal situation into the interview as she did.

[56]  It may well be that the intention of Ms Forbes was to rile Mr Thompson. If it was her intention then we see that as being a legitimate tool for interviewers to use in the appropriate circumstances. It is clear that Mr Thompson did become riled, especially when Ms Forbes sought to return to the controversial comments which he had made earlier in the day. In an overall sense, we do not consider that Mr Thompson was unfairly treated by the style and approach of Ms Forbes in the interview. He put himself into a position where he was subject to being tested and, regrettably, when put under pressure, his behaviour was such as to allow for negative inferences to be drawn. We reiterate that any harm to Mr Thompson’s reputation and dignity was largely self-imposed, and was not the result of the interviewing technique adopted. We decline to uphold this part of the complaints.

Mr Campbell’s comments

[57]  The complainants argued that the host mischaracterised Mr Thompson’s comments by saying that he thought women were “worth less” than men in the workplace.

[58]  We respectfully disagree with the minority view that the phrase “worth less” amounted to a mischaracterisation of Mr Thompson’s comments (see paragraphs [103] to [104], and [126] to [127]). Rather, in our view, Mr Campbell’s use of the words “worth less” amounted to acceptable shorthand used to characterise Mr Thompson’s comments about why some women are paid less than men. Viewers familiar with Mr Campbell’s style would have recognised an element of typical hyperbole which we consider to be his legitimate choice as his mode of expression. In addition, by the stage these comments were made, the comments of Mr Thompson had been extensively reported in other media, so viewers would have appreciated that he was referring to women’s pay, and also that he had not unequivocally referred to all women.

[59]  We therefore decline to uphold this aspect of the fairness complaint.

Text poll

[60]  The complainants argued that the text poll asking viewers “Should Alasdair Thompson resign for his comments about women in the workplace?” was disrespectful and unfair.

[61]  Text polls are commonly used on all major television networks, and in our view, are an acceptable editorial technique employed to engage the audience and obtain viewer feedback. We disagree with the minority that the poll was unfair to Mr Thompson (see paragraphs [134] to [138]), and we decline to uphold this aspect of the complaints.

Alleged humiliation and denigration of Mr Thompson

[62]  With regard to the item broadcast on 24 June, the complainants referred to Mr Campbell’s opening statements and the caricature of Mr Thompson singing what were described as his “favourite” songs. They argued that Mr Thompson was mocked and ridiculed by what, in their view, amounted to a personal attack against him, by both the host and the commentators in the panel discussion which followed.

[63]  The Authority has previously stated that the fairness standard:2

...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. ...The question for the Authority is whether that criticism overstepped the boundaries of fairness, that is, whether it strayed into abusively personal territory.

[64]  We agree with the general tenor of this principle, in the sense that there must be significantly more latitude given to the criticism of public figures before it can be found to be unfair. We add, however, that whether or not criticism of a public figure is unfair will always depend on the particular circumstances of the case.

[65]  The Authority and the High Court have held that the lampooning of, and caricaturisation of public figures is usually acceptable and have emphasised the value of satire as a form of critique.3 The genres of lampoon and caricature have long been an accepted part of commentary about political or public figures. While previously, caricatures utilised pen and ink, they now come in forms such as that which was broadcast.

[66]  Sometimes, a distinction drawn is that attacks on people in their professional or public capacity have to be accepted but when those attacks are directed at somebody personally, they are not acceptable.4 There will be cases where a person is unfairly treated in caricature or by being lampooned. An obvious example would be where the focus is on a person’s race or a disability. Here, the focus was on what Mr Thompson said. The line between what is acceptable and what is unacceptable is not always an easy line to draw.

[67]  After careful consideration, and having regard to the fundamental importance of freedom of expression, we have reached the conclusion that what was broadcast on Campbell Live on 24 June did not breach broadcasting standards. Mr Thompson had taken himself into the public arena on several different occasions. He had endeavoured to turn the tide of opinion in his favour and in the process he had, under pressure, made things worse. What he did then became a legitimate target of ridicule. We think that it is the lot of a public figure in an open and democratic society, to have to accept these harsh consequences. The alternative of endeavouring to fetter and control criticism in the form of lampoon and caricature is unacceptable. Accordingly, we decline to uphold this part of the fairness complaint.

Overall fairness

[68]  In our view, Mr Thompson was not treated unfairly in terms of this standard. An interview which started off as one which related to the issue of productivity of women in the workplace, changed sharply to one where the real topic under discussion was the behaviour of a spokesperson for a major employers association.

[69]  In revealing how Mr Thompson conducted himself in the course of defending his ideas, the broadcasts advanced knowledge about the issues at the heart of the pay equity debate and exposed the views of someone who had chosen to enter that debate because of the status he held as the representative of a large employer organisation. The advancement of knowledge and dissemination of policy ideas are core values underpinning the right to freedom of expression. In addition, there was a high level of public interest in the items, which the courts have suggested is an indicator that the speech is socially important.5

[70]  For these reasons, and taking into account the principles outlined above, we consider that upholding the fairness complaints would place an unjustifiable restriction on the broadcaster’s right to freedom of expression, and we therefore decline to uphold the complaints that Standard 6 was breached.

[71]  We note that, in considering fairness, the minority has addressed some of the more detailed points raised by the complainants in relation to the 24 June item (for example, references to Mr Thompson being unable to use the word “period” – see paragraph [151]). While we have not explicitly dealt with these points, we have given them consideration, and we are satisfied that we have adequately dealt with the complainants’ concerns relating to fairness, and that the additional aspects considered in the minority did not result in Mr Thompson being treated unfairly.

Were the broadcasts inaccurate or misleading?

[72]  Standard 5 (accuracy) 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.6

[73]  The complainants raised a number of issues under Standard 5. First, they argued that the items created a misleading impression of Mr Thompson’s opinions and attitudes towards women in the workplace. In particular, they considered that he was falsely portrayed as “belligerent and sexist”. We are not in a position to determine questions of accuracy about Mr Thompson’s personality traits, which is a matter of subjective judgement and opinion. We consider that this aspect of the complaints is more an issue of fairness, which we have already addressed above.

[74]  Second, Mr Francis has provided a list of statements that were made in the first part of the interview but which were not shown, for example, Mr Thompson’s positive comments about women and pay equality in the workplace. He considered that this was important contextual material that was necessary for viewers to make up their own minds. He argued that by omitting this material the broadcaster left a misleading impression and failed to impartially convey information in relation to the issues identified.

[75]  In our view, the focus of each of the Campbell Live items had developed beyond the issue of pay equity and the gender pay gap. The radio interview started addressing these issues but the issues then quickly moved on to the appropriateness of Mr Thompson’s comments and to his competency to fulfil his role as CE of the EMA. By the time the item of 23 June was broadcast, what had occurred in the interview with Ms Forbes had legitimately caused the focus of the broadcast to change. By that stage it was no longer simply a discussion about pay equity and the gender pay gap. We therefore do not consider that it was necessary to include more of Mr Thompson’s comments on the wider debate on those issues, or that the omission of such content would have resulted in the audience being misled. In addition, as outlined in our consideration of fairness at paragraphs [42] to [45], we do not think that, even if more of Mr Thompson’s views had been included, viewers’ perceptions of him would have changed.

[76]  Finally, in relation to accuracy, Mr and Mrs Thompson reiterated their arguments under fairness with regard to the way Mr Thompson’s comments on Newstalk ZB were characterised in the 23 June item (see paragraph [57] above). In their view, Mr Campbell’s use of the phrase “worth less” implied that he “considers the pay gap as justified and that all women deserve less pay than men.” However, as outlined in paragraph [58], we consider that, in using the phrase “worth less”, Mr Campbell was simply paraphrasing Mr Thompson’s comment that “some women are paid less than men”, and was using the phrase in a monetary sense, as opposed to suggesting that Mr Thompson considered that women were inherently inferior to men. Further, given that the incident had attracted widespread publicity, we consider that most viewers would have been aware of the context of Mr Thompson’s original comments, and therefore would not have been misled by this phrase.

[77]  Accordingly, we decline to uphold the Standard 5 complaints.

Were the Campbell Live items unbalanced?

[78]  Standard 4 (controversial issues) states that when controversial issues of public importance are discussed in news, current affairs or 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.

[79]  The Authority has previously stated that the balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.7 The standard only applies to programmes which discuss “controversial issues of public importance”, and therefore this objective is of vital importance in a free and democratic society.

[80]  A controversial issue of public importance has typically been defined by the Authority as something that would have a significant potential impact on, or be of concern to, members of the New Zealand public (e.g. Powell and CanWest TVWorks Ltd8).

[81]  The complainants considered that Mr Thompson’s comments on Newtalk ZB were controversial, and that the interview discussed a controversial issue – namely, the existence and cause of the gender pay gap in the workplace, and more specifically, Mr Thompson’s opinion on the possible causes of the gender pay gap, including that some women take more sick leave, due, in part, to menstruation. In their view, the broadcaster failed to make reasonable efforts to present significant perspectives, including Mr Thompson’s views on the gender pay gap and his explanation for his comments on Newstalk ZB.

[82]  We accept that the issue of pay equity in the workplace was a controversial issue of public importance. To the extent that the items touched upon this issue, we consider that balance was provided and that viewers would have been aware of other viewpoints, given the coverage in other media and considering it is a longstanding issue.

[83]  However, by the time the Campbell Live interview screened, we consider that the issue being debated did not relate to pay equity, but rather focused on Mr Thompson’s comments on Newstalk ZB and his competency to fulfil his role as CE of the EMA. We accept that these issues had become controversial and of public importance, given his position with the EMA and the debate that ensued as a result of his comments.

[84]  It is our view that Mr Thompson was given a reasonable opportunity to explain his position in the interview, but he continually attempted to move the discussion away from his comments on Newstalk ZB, and back to the wider issue of pay equity (see paragraph [16] above). In addition, we consider that viewers could reasonably be expected to be aware of his position, given the extensive coverage in other media, including interviews on 3 News, One News and Radio New Zealand.

[85]  In terms of the 24 June item, the complainants considered that this was a continuation of the controversial issue discussed the previous evening. They contended that balance could have been achieved in the panel discussion by including the views of someone who represented employers. We reiterate our reasoning above with regard to the previous night’s interview – that the issue under discussion had shifted from pay equity to Mr Thompson’s comments and his competency to fulfil his role at the EMA. While the item touched on the wider issue, differing perspectives were provided in the item and within the period of current interest. As noted in the item itself, Mr Thompson and other representatives from the EMA were invited to appear on the show to present their views, but they declined.

[86]  In these. circumstances, we are satisfied that TVWorks made reasonable efforts and gave reasonable opportunities to present significant points of view on the issues, both in the items and in other programmes within the period of current interest, and that viewers were provided with sufficient information to enable them to arrive at an informed and reasoned opinion as required by the standard. We therefore decline to uphold the Standard 4 complaints.

Did the items breach any individual’s privacy? 

[87]  Standard 3 (privacy) states that broadcasters must maintain standards consistent with the privacy of the individual.

[88]  Mr and Mrs Thompson argued that the item broadcast on 23 June breached Mr Thompson’s privacy because his request to speak off camera was ignored. They also considered that the item breached the privacy of Mr Thompson’s employees, who were referred to in the broadcast.

[89]  The privacy concerns relating to Mr Thompson do not raise any issues under Standard 3, and we have addressed this aspect of the complaint in our consideration of fairness above. We therefore proceed to determine the privacy complaint in relation to his employees who were allegedly referred to in the broadcast.

[90]  When we consider a privacy complaint, we must first determine whether the individual whose privacy has allegedly been interfered with was identified in the broadcast. On this occasion, while Mr Thompson referred to “a woman who keeps the records”, we do not consider that this was sufficient to identify the employee beyond family, friends and co-workers who could reasonably be expected to know about the information disclosed in the broadcast. The item did not contain reference to any other employees.

[91]  Accordingly, we find that the item did not breach Mr Thompson’s privacy, or the privacy of the woman employee referred to in the broadcast. We decline to uphold the complaint that the 23 June item breached Standard 3.

Conclusion

[92]  These have been challenging complaints. We can well understand those people who are sympathetic to Mr Thompson and we can well understand those who are not. Essentially, our view is that the broadcast of 23 June showed Mr Thompson as a public figure under pressure and showed his reactions to pressure. What was broadcast allowed viewers to draw their own conclusions. Having had regard to the minority view expressed below, and the principles of freedom of expression, we stand firm in our view that the broadcasts did not breach broadcasting standards.

Minority View (Mary Anne Shanahan)
 

General Comments

[93]  Complaints were made under the fairness, balance and accuracy standards. Here the nub of the complaints under each of the standards is that the items created a misleading impression and failed to impartially convey information in relation to the issues identified, in particular, by omitting important contextual material. Clearly, there is overlap between the fairness, balance and accuracy standards whereby the omission of material is alleged to give rise to a breach of one or all these standards. 

[94]  A broadcast will be misleading inter alia when it does not adequately summarise or portray an issue so that viewers can make up their own minds, and when viewers are left with a wrong impression. Professor John Burrows in his review of BSA decisions explained that:9

…a statement which is literally true can still give a wrong impression, usually because it leaves out a vital piece of information and is thus only a half truth. The Authority has had to deal with this type of complaint on a number of occasions, and been required to make the difficult judgement of whether a broadcast summary is misleading because of what it does not say. 

[95]  Imbalance and “misleading selectivity” may result in breaches of Standards 4, 5 and 6. Balance is a feature of all these standards.

[96]  Likewise, in the consideration of bias there is overlap between these standards. The obligation is essentially to avoid unfairly or unduly promoting one side of the story at the expense of any other sides that might properly be available – in short, an obligation to be even-handed. The obligation overlaps with the obligation not to mislead viewers.

[97]  The broadcasting standards, of necessity, restrain free speech. However the consideration and focus of each standard is different. Standards 4 and 5 are directed to the enhancement of public understanding and to ensure that viewers of programmes of this kind receive information which is balanced, accurate and not misleading. There is a public interest base to these standards. It is the protection of viewers. Standard 6 is directed to the prevention of harms to individuals or organisations. Its purpose is to ensure that people who take part in broadcasts, or who are referred to, are treated fairly. Under this standard, they are entitled to reasonable protection of their reputations and they are entitled to the common decency of not having things broadcast about them which are untrue. If their conduct is an issue then they should be given a fair opportunity to correct any statements made about them if they can be corrected. Basically, they are entitled to fair play. Standard 6 is concerned with the interests of individuals.

[98]  In considering the harm to which each standard is directed, it is my view that these complaints are most appropriately considered under the fairness standard. The harm caused in these items as broadcast, were harms to Mr Thompson. Unlike the majority, I would uphold the fairness complaint. 

Accuracy

[99]  The objective of the accuracy standard is to protect audiences from receiving misinformation and thereby being misled.10 The complaints under this standard were that the interview footage was edited in such a way as to distort the viewers’ impression of the nature and content of the full interview and mislead viewers so that they would be left with the impression that Mr Thompson was “belligerent and sexist”. Mrs Thompson complained that the items inaccurately described Mr Thompson’s comments on Newstalk ZB. Mr Francis set out some 17 statements made by Mr Thompson in that part of the 27.57 minute interview which were not broadcast, which he argued resulted in the item being misleading. He asserts that if some or all of these statements had been broadcast, it would have made a more favourable impression upon viewers.

[100]  Under the accuracy standard the omission of material must result in an inaccuracy as to the facts or a misleading impression. It is my view that these complaints do not fit easily within the ambit of any assessment that could be completed by the Authority under the accuracy standard. The Authority is not in a position to make a judgement of fact as to the correct impression of Mr Thompson’s opinion and attitudes or whether or not Mr Thompson is either belligerent and/or sexist. These are opinions or value judgements of a person that do not lend easily to findings of fact. Likewise, it is difficult to measure what a “factually accurate account of the interview” might be in reference to the accuracy standard. These complaints relate to the impression created of Mr Thompson and the alleged harm to him. They raise issues under the fairness standard.

[101]  Mr Francis alleged a breach of guideline 5c in that TV3 displayed a lack of impartiality in the editing of the interview footage. Bias is a broad concept and will easily overlap at times with Standards 4 and 6. Here the obligation to be impartial overlaps with the requirement not to mislead viewers. The complaint focused on the effect on Mr Thompson and is correctly a fairness complaint.

Inaccurately describing Mr Thompson’s comments

[102]  Mr Campbell introduced the item in June saying, “yes an extraordinary interview with the head of the EMA Alasdair Thompson on the subject of why women are worth less in the workplace”. Mr and Mrs Thompson argued that it was inaccurate to infer that Mr Thompson had said women are “worth less”.

[103]  The majority find that Mr Campbell’s use of the words “worth less” amounted to acceptable shorthand to characterise Mr Thompson’s comments about why some women are paid less than men. The majority refer to Mr Campbell’s typical hyperbole as a legitimate choice as his mode of expression. However there are limits including the accuracy and fairness standards. That women are (on average) “paid less” is an observation. That they might be “worth less” is a value judgement. They are qualitatively different kinds of statements.

[104]  However, these statements appeared only in the teaser and introduction and not in the actual item. I agree that in a very loose way the words “worth less” and “paid less” are interchangeable. Accordingly, in terms of the accuracy standard I find that reasonable efforts were made. I find that the complaint under this heading also lies more correctly under the fairness standard as the damage was in the overall impression created of Mr Thompson.

Controversial Issues

[105]  The complainants, TVWorks and the majority all agree that Mr Thompson’s comments on Newtalk ZB were controversial, and that the interview discussed two controversial issues of public importance. Namely, the existence and cause of the gender pay gap in the workplace, and more specifically, Mr Thompson’s opinion on the possible causes of the gender pay gap, including that some women take more sick leave, due, in part, to menstruation, and his competency to fulfil his role as CE of the EMA. The majority felt that this was the focus of the Campbell Live item.

[106]  I agree with the majority that to the extent that the items touched upon the issue of pay equity in the workplace, balance was provided and viewers would have been aware of other viewpoints, given the coverage in other media and considering that it is a longstanding issue.

[107]  In respect of the second controversial issue, I disagree with the majority and consider that the broadcasts were not balanced. However, balance under this standard can be achieved in the same programme or in other programmes within the period of current interest. There was extensive coverage of these issues in other media, including interviews on 3 News, One News and Radio New Zealand. The unedited versions of the Campbell Live interview (27 minutes) and also of the 3 News interview (22 minutes) were available online. The harm contemplated by Standard 4 is in ensuring that viewers have access to wide and full coverage of the issues. Whether the controversial issue of public importance is defined as Mr Thompson’s views or his media performance, this was well balanced in other media coverage. In particular, the 3 News item was an especially good presentation of all the issues, although only some three minutes long.

[108]  Standard 6 is directed to the harm to the individual participating in the particular broadcast. It is in this sense that the lack of balance in these broadcasts is relevant, in the resulting, in my view, unfairness to Mr Thompson. I will therefore consider the issues of balance in reference to the fairness standard.

Fairness

[109]  Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in programmes.

[110]  The relevant guidelines are:

6b   Broadcasters should exercise care in editing programme material to ensure that the extracts used are not a distortion of the original event or the overall views expressed.

6d   Broadcasters should respect the right of individuals to express their own opinions.

[111]  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”.11

[112]  This Authority has previously stated that the fairness standard does not prevent criticism of public figures. The question for the Authority is whether that criticism overstepped the boundaries of fairness, that is, whether it strayed into abusively personal territory.12

[113]  Mr Thompson’s role as CE of the EMA includes a public function. Accordingly, his views and conduct are appropriately the subject of scrutiny, comment and criticism. However, Mr Thompson is privately employed. He is not answerable to the public in the same way as a politician or a public servant. Further, whilst public figures can expect robust scrutiny, it does not follow that broadcasters are exempt from applying fairness to public figures. The question for the Authority remains whether the boundaries of fairness were, in this broadcast, overstepped.

[114]  This programme operated on a number of levels. There was the pay equity discussion; the discussion of Mr Thompson’s views on this; and the question posed by the broadcaster as to Mr Thompson’s competency to continue in his role. At all levels the discussion is an important one and of legitimate public concern, especially given Mr Thompson’s role as the CE of the EMA. However, the value of the just treatment of Mr Thompson is also strong, particularly given that it was his viewpoint and behaviour that was the focus of the items. A high threshold must be reached before the Authority intervenes on an issue that is worthy of debate and advocacy. However, in an item criticising Mr Thompson for his views, the correct statement of his views is clearly material. There is harm to Mr Thompson when his views are either omitted or misstated. Particularly when the broadcaster then asks the audience to judge Mr Thompson on his suitability for his role.

[115]  The complainants argued that the items were unfair to Mr Thompson in that they denied him the opportunity to give his side of the story and because he was misreported or misquoted to portray him “in the worst possible light”. In particular, they argued that the editing of the interview grossly distorted the overall views expressed by Mr Thompson and the tone and content of the full interview. Mr Francis complained that Mr Thompson was treated with a lack of respect and that Ms Forbes adopted a partisan approach.

[116]  The majority find no breach. I find a breach of the fairness standard in various ways as detailed below, the more so because of the effect of each factor cumulatively.

Opportunity to put his views and “explain himself”

[117]  Mr Thompson was given a reasonable opportunity to explain his position, and had expanded on his views at length, in the full, but not the broadcast interview. The item was introduced by Mr Campbell who stated that Mr Thompson “had been asked to explain himself”. One would have expected a fair presentation of Mr Thompson’s explanation given in the 27.57 minute interview. Instead, only a 4.18 minute excerpt towards the end of the interview was shown. The part shown was not representative of Mr Thompson’s views on the issues, but focused on his spat with Ms Forbes.

[118]  To enable the viewer to arrive at an informed and reasoned opinion of Mr Thompson’s view on the possible causes of the gender pay gap required first a balanced presentation of his views. Mr Thompson’s counsel submitted (in reference to Standard 4 but equally applicable to a consideration of balance under Standard 6) that it is “artificial to suggest that a broadcaster is not required to present the point of view of the person whose comments caused the issue of controversy in the first place in circumstance where the focus of the item as introduced by Mr Campbell was for the person to ‘explain himself’”. I agree.

[119]  The broadcast included only one part of the full interview where Mr Thompson explained his view. This excerpt is set out in paragraph [19] of this decision. Mr Thompson was shown saying, “Women are more frequently off work than men. That is not a criticism of women, it’s just a fact”. However, this excerpt barely addresses the issue. Thereafter the broadcast did not show Mr Thompson discussing his views but rather the spat between Mr Thompson and Ms Forbes.

[120]  The majority state in paragraph [84], that Mr Thompson, in the course of the full interview, “continually attempted to move the discussion away from” his comments on Newstalk ZB “and back to the wider issue of pay equity”. In raising this, the majority appear to acknowledge the relevance of Mr Thompson’s comments in the interview on this issue. It is to be expected that in discussing his views on pay equity, of necessity, Mr Thompson will, and did, discuss the issue of pay equity. But in any event Mr Thompson had expounded on the comments he had made on Newstalk ZB in the full but not the broadcast interview. He had explained his views on why people’s productivity in the workplace differed and also his belief that woman were, in general, more productive than men. In reference to the particular issue of women having periods, he said:

In some cases it can affect their productivity. That was the point I was making. Now actually by and large most women don’t have a problem. Most women in this particular narrow thing that you guys are all interested in, most women look after it with some tablets and most women make up whatever time they have taken off and get on with the job so it’s no big issue, but it is an issue.

[121]  This comment was not broadcast nor any other of the explanatory comments made by Mr Thompson in the full interview.

Editing

[122]  It has been accepted by the Authority that deciding which parts of an interview will be included in a programme is a matter of editorial discretion.13 However, a broadcast will be unfair if the excerpts broadcast do not fairly represent the content of the interview,14 or if the interview is edited in such a way that it excludes necessary clarifications made, or distorts the interviewee’s views by excluding crucial elements of his or her argument.15

[123]  It was not necessary, in the interests of fairness, to broadcast the full 27.57 minute interview. Mr Thompson accepted that the interview would be heavily edited and that this was a matter of editorial discretion for the broadcaster. However, the standards constrain the broadcaster in that the end result, after editing, cannot be deceptive in the sense that it distorts the item or unfairly omits important material. I find that this is what has happened here.

[124]  Only the last 4.18 minutes of the 27.57 minute interview were broadcast. The broadcast focused on the spat between Mr Thompson and Ms Forbes. It clearly showed Mr Thompson in an unfavourable light, leaving viewers with an unfairly negative representation of his opinion, character and conduct. This raises a strong case for unfairness when key contextual balancing material from the earlier part of the interview was not shown. Mr Francis cited some 17 comments made in the full interview that were omitted and that were more favourable to Mr Thompson. It was not necessary in the interests of fairness to show all of these excerpts, but I consider that at least some of them should have been included to achieve sufficient balance.

[125]  TVWorks argued that it was unnecessary to broadcast the whole interview as Mr Thompson’s words and conduct spoke for themselves. However, it is not for the broadcaster to anticipate or pre-judge the response of viewers to the item, had a more representative excerpt been shown than the spat between Mr Thompson and Ms Forbes. It was the opportunity of fairness that was denied. The Campbell Live producer explained that “it was a busy news day and the producers did not have sufficient time to properly edit the full Ms Forbes interview with Mr Thompson. Accordingly we select the best bits”. Whilst this admits, and explains why, the item was not properly edited, it does not absolve the resulting unfairness.  

Mischaracterising Mr Thompson’s views

[126]  In the introduction to the programme, after screening one of the more unpleasant moments of the interview, Mr Campbell opens “yes an extraordinary interview with the head of the EMA Alasdair Thompson on the subject of why women are worth less in the workplace”. However, Mr Thompson did not say that women are “worth less” in the workplace. Mr Thompson was participating in a discussion as to the cause of the pay gender gap wherein women are paid less on average than men. In the Newstalk ZB discussion he suggested some explanations for the pay gender gap. At no time did he express a judgement that women were “worth less”. This is a mischaracterisation of Mr Thompson’s statements. As stated earlier, it is my view that “worth less” is a value judgement qualitatively different from “paid less”. Further, this unfairly implied that Mr Thompson made a global statement about “women”, when he had only been talking of “some” women. 

[127]  Mr Campbell did elaborate on this when he opened the main piece later on in the Campbell Live programme then referring to Mr Thompson’s views on why women “earn less”. But the scene had been set at the commencement of the programme when Mr Thompson was described as thinking that women are “worth less”, coupled with the unfavourable footage of Mr Thompson and the invitation to vote on his competency. The opener unfairly set the tone of the interview excerpts that followed later in the programme with balancing footage omitted.

[128]  When the interview was shown Ms Forbes’ first question was “So when someone is sick here you ask them why they are sick and they tell you because they got heavy periods?” This question was phrased as being a summary of Mr Thompson’s position but was not an accurate summary of what he had been saying.

[129]  Further, Ms Forbes was shown incorrectly summarising Mr Thompson’s position with her statement “You don’t really represent me very well as a female; you believe that I am less productive”. Again, this was not what Mr Thompson had been saying. Indeed he had asserted the contrary.

[130]  Given that the item did not include a fair portrayal of what Mr Thompson had been saying, the incorrect summaries of his views were clearly unbalanced and consequently unfair.

Mr Thompson’s media ability

[131]  TVWorks asserted that by the time the item was broadcast the issue had “moved on” from the pay equity issue to the question of Mr Thompson’s competency to fulfil his role as CE of the EMA and in particular his ability, or inability, to deal appropriately and effectively with the media. Certainly that was the focus of the text poll. I agree this was a valid story given Mr Thompson’s demeanour and conduct. But even this issue, accepted as it was as a controversial issue of public importance, required balance.

[132]  For viewers to make an informed opinion on Mr Thompson’s media ability, fairness requires a more balanced presentation of the whole interview to give context to the less pleasant aspects of the interview shown. The excerpt shown occurred when, after some 20 minutes of explanation of his views, Ms Forbes became confrontational and mischaracterised Mr Thompson’s views. In response, Mr Thompson expressed his frustration. The viewer had no context in which to judge Mr Thompson’s overall performance or even the reason for his frustration. Viewers were then asked to assess and vote on Mr Thompson’s competency.

[133]  In saying this, I do not assert that the part shown should not have been shown, nor that Ms Forbes’ interviewing style was inappropriate. Rather, it is my view that in this case, context was missing and showing only these parts was unbalanced and unfair.

Text poll

[134]  Mr Francis considered it disrespectful for TV3 to run a text poll asking viewers whether Mr Thompson had the “competence to remain in the job” as head of the EMA. Mrs Thompson argued that the poll result was heavily influenced by Campbell Live’s biased, inaccurate, unbalanced and hostile reporting. They contended that viewers were asked to vote on Mr Thompson’s competency based on a highly distorted editing of the full interview which did not properly present his viewpoint.

[135]  I agree with the general proposition that text polls are an acceptable editorial technique employed to engage the audience and obtain viewer feedback. However, here Mr Thompson’s views were misrepresented in the teaser and opening piece. Immediately thereafter it was put to viewers, “After the break we are going to have an extraordinary interview... on the subject of why women are worth less in the workplace. We are running a poll on this issue – should Alasdair Thompson resign as head of the [EMA]?”

[136]  In the interview then shown the broadcaster had edited out those parts of the interview that might have given a more balanced impression of Mr Thompson’s views and performance on which viewers could judge him.

[137]  At the end of the piece Mr Campbell asked, “So, what do you think of his comments and his performance in that interview? Is he fit to remain the leader of the [EMA] representing the country’s employers, who of course employ both men and women? We are running a poll on it, text ‘yes’ or ‘no’ to the question ‘Should he resign?’” The broadcaster argued that at this stage the poll was as much about Mr Thompson’s inability to handle the media.

[138]  However, whether the viewer was to vote on Mr Thompson’s performance or opinions, balanced excerpts from the whole interview should have been shown. It is in this context that the text poll was unfair. The broadcast item did not present a fair representation of Mr Thompson’s opinions and conduct from the full interview. Viewers were then asked to vote on him. I agree with Mrs Thompson that the poll result would have been influenced by Campbell Live’s unbalanced reporting. It is little surprise that the vast majority of respondents felt he should resign.

Reporter’s behaviour

[139]  The complainants allege that Ms Forbes was biased and sought to destabilise Mr Thompson. This was rejected by TVWorks who considered that Ms Forbes conducted herself in a professional manner and was not overtly provocative or offensive. I disagree. Ms Forbes was clearly both provocative and argumentative. However, as noted by the majority, an interviewer has the freedom to adopt his or her own style so long as broadcasting standards are maintained. I agree with TVWorks that although Mr Thompson may have been frustrated, his response was unpredictable given his position and experience as a senior executive who could be expected to be able to maintain an appropriate level of control.

[140]  The complainants also alleged that Ms Forbes failed to listen to Mr Thompson’s answers, and inaccurately paraphrased his replies. I agree that Ms Forbes did paraphrase Mr Thompson’s views incorrectly as detailed above. In the absence of a more representative selection of the full interview, this aspect of Ms Forbes’ style added to the unfairness.

Request to stop the interview

[141]  As an experienced public figure, Mr Thompson would know the care to be taken to go “off-the-record” and the need to obtain agreement with the journalist prior to stopping and starting an interview. I therefore agree with the majority that this was not unfair.

Relevance of other media

[142]  The broadcaster argued that the full Campbell Live interview was available on TV3’s website, and that balance was available from other material. The majority has agreed with this approach in their comments at paragraph [42]. However, whilst this is a defence to the Standard 4 complaint, under the fairness standard the programme itself is to be judged for fairness and balance, not other material broadcast on the topic.16 Standard 6 is clear. It is concerned with fairness in preparation and presentation of a programme. It is the programme itself which must be judged against the standard.

Summary

[143]  I find that the 23 June item as broadcast was unfair to Mr Thompson. Whilst any one of the alleged failings might on its own be insufficient to amount to unfairness, it was the cumulative effect that for me is decisive. The lack of any material from the full interview to balance the unduly negative excerpt shown resulted in an item that was clearly unfair. It is not for the broadcaster to judge whether or not viewers would have judged Mr Thompson differently. The item did not contain any real excerpt of Mr Thompson’s “explanation” given in the full interview, yet was introduced as if this was to occur. No context was given to the conduct shown in reference to the full 27.57 minute interview not shown.

[144]  In summary, the essential point for me is that whether the controversial issue was Mr Thompson’s comments and/or his competency, then accurate reporting of those views and his expression of them was required. The editing of the first item was such that a reasonable viewer did not hear or see a reasonable selection of the full interview to judge. Viewers’ judgement may have been the same even on a full viewing of the interview, but that is for the viewer to assess, not the broadcaster to predetermine.

24 June Item

[145]  Whilst the complainants argued that the 24 June item breached Standards 4, 5 and 6, I find the applicable standard to be Standard 6 for reasons similar to those I have expressed with regard to the 23 June item. Again, I find a breach of Standard 6, worse perhaps than the 23 June item, as it is hard to find any fairness at all in this item in the treatment of Mr Thompson. 

[146]  The complainants referred to Mr Campbell’s opening statements and the caricature of Mr Thompson singing what were described as his “favourite” songs. They argued that Mr Thompson was mocked and ridiculed by what, in their view, amounted to a personal attack against him, by both the host and the commentators in the panel discussion which followed.

[147]  The Authority has previously held that the lampooning of, and caricaturisation of public figures is usually acceptable. As noted by the majority, the genres of lampoon and caricature have long been an accepted part of commentary about political or public figures. The majority find no compelling reason here to fetter and control criticism in the form of lampoon and caricature. I disagree in this case. Whilst freedom of expression is important and public figures are to some extent fair game, what happened in this item in my view overstepped the mark.

[148]  Here Mr Thompson was ridiculed in this item both for his alleged opinions and for his poor performance in the part of the interview televised the night before. In the 24 June item only one part of the 23 June interview was shown. This was the only “involvement” of Mr Thompson in the item. The rest of the item was a critique of Mr Thompson for his opinions. Much of the 24 June item was opinion based and clearly so. The problem of the 24 June item was not so much the interview excerpt but the misleading reporting of Mr Thompson’s views followed by the criticism of him for views he had never expressed.

[149]  In the teaser Mr Campbell said “a big business leader says women are less productive because of their periods”. This was misleading as it implied that his comments related to all women, when he had only said “some women”. Mr Thompson was then shown saying “women are more frequently off work for more time than most men. That’s not a criticism of women, it’s just a fact”. If showing Mr Thompson saying this was an attempt at balance, it was immediately quashed by the following misleading statement “Alasdair Thompson’s criticisms of women’s so-called monthly sick problems”. Mr Thompson was then lampooned with his “favourite songs”. At no time was a fairer, more accurate summary of his views given. This introduction, with the misleading rendition of Mr Thompson’s views, set the tone for the item. 

[150]  The members of the panel were there to give their opinions on Mr Thompson. They are entitled to their own opinions and did add some significant viewpoints (on the pay equity issue). However, this did not make up for the misleading characterisation of the most significant viewpoint – that of the man himself.

[151]  The panel discussed the views incorrectly attributed to Mr Thompson. During panel time Mr Campbell noted his concern about girls being seen “by senior members of our society as less productive because they are female”. At no time had Mr Thompson made such a statement. One of the panellists also criticised Mr Thompson’s inability to say the word “period”. Another responded, “Yes exactly”. However, Mr Thompson had been able to say the word “period” and had even managed “menstruation” during the full interview.

[152]  The complainants contended that balance could have been achieved in the panel discussion by including the views of someone who represented employers. The broadcaster noted in the item itself, that Mr Thompson and other representatives from the EMA were invited to appear on the show to present their views, but had declined. This is to be expected. The EMA no doubt felt uncomfortable discussing their employment of the CE on national television. Given the unfair way he was treated the previous evening it is understandable that Mr Thompson did not return. However Campbell Live had the full 23 June interview and the ability therefore to deal with Mr Thompson fairly and at least summarise his stated opinions correctly.

[153]  As it was, no one represented Mr Thompson or correctly stated his views. The broadcaster continued to inaccurately summarise his viewpoint and lampooned him on that basis. This item was based on the misleading summary of Mr Thompson’s opinion (i.e. the man who thinks women are “worth less”). The cumulative effect of the mischaracterisation of Mr Thompson’s views and the lampooning of him in the absence of any balancing material leads me to uphold the fairness complaint in relation to the 24 June item as well as the 23 June item.

 

For the above reasons and having had regard to the minority view expressed above, a majority of the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

 

Peter Radich
Chair
3 April 2012

Appendix

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

23 June item

1                  Ross Francis’ formal complaint – 9 July 2011

2                 TVWorks’ response to the complaint – 5 August 2011

3                 Mr Francis’ referral to the Authority – 11 August 2011

4                 TVWorks’ response to the Authority – 21 September 2011

 

1                  Nick Gouge’s formal complaint – 25 June 2011

2                 TVWorks’ response to the complaint – 4 August 2011

3                 Mr Gouge’s referral to the Authority – 4 August 2011

4                 TVWorks’ response to the Authority – 2 September 2011

1                  Alasdair and Joan Thompson’s formal complaint – 20 July 2011

2                 Mr and Mrs Thompson’s referral to the Authority – 9 September 2011

3                 TVWorks’ response to the Authority (including decision dated 10 August) – 14 September 2011

4                 Mr and Mrs Thompson’s final comment (including attachments) – 12 December 2010

5                 TVWorks’ final comments – 17 January 2012

6                 Mr and Mrs Thompson’s additional submissions – 25 January 2012

24 June item

1                  Ross Francis’ formal complaint – 12 July 2011

2                 Mr Francis’ referral to the Authority – 22 August 2011

3                 TVWorks’ responses to the Authority – 31 August and 28 September 2011

 

1                  Alasdair and Joan Thompson’s formal complaint – 20 July 2011

2                 Mr and Mrs Thompson’s referral to the Authority – 9 September 2011

3                 TVWorks’ response to the Authority (including decision dated 10 August) – 14 September 2011

4                 Mr and Mrs Thompson’s final comment (including attachments) – 12 December 2010

5                 TVWorks’ final comments – 17 January 2012

6                 Mr and Mrs Thompson’s additional submissions – 25 January 2012


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

2Kiro and RadioWorks Ltd, Decision No. 2008-108

3Simmons et al and CanWest TVWorks Ltd, Decision No. 2006-022, and the decision of Wild J which affirmed the Authority’s reasoning in HC CIV-2006-485-1611

4E.g. Kiro and RadioWorks Ltd, Decision No. 2008-108

5See, for example, Tipping J in Hosking v Runting317.33 KB [2003] 3 NZLR 385 (CA)

6Bush and Television New Zealand Ltd, Decision No. 2010-036

7Commerce Commission and TVWorks Ltd, Decision No. 2008-014

8 Decision No. 2005-125

9Assessment of Broadcasting Standards Authority Decisions – A Legal Perspective, April 2006 at p14

10Bush and Television New Zealand Ltd, Decision No. 2010-036

11Commerce Commission and TVWorks Ltd, Decision No. 2008-014

12Kiro and RadioWorks Ltd, Decision No. 2008-108

13Road Transport Forum NZ and CanWest TVWorks Ltd, Decision No. 2005-100

14In Diocese of Dunedin and TV3, Decision No. 1999-125

15NZ Fire Service and TV3, Decision No. 1996-182; Attorney General of Samoa v TVWorks Ltd1.92 MB HC CIV-2011-485-1110 1.92 MBat paragraph [111]

16TV3 Network Services Ltd v The Prime Minister (Rt Hon Helen Clark) and Others HC CIV-2003-485-165518.64 MB