BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Kool FM – interview with Coromandel resident Bill Muir discussing local politics in Whitianga – Mr Muir made a number of critical statements alleging serious misconduct by members of the local district council – allegedly in breach of controversial issues, accuracy and fairness standards

Findings
Standard 4 (controversial issues – viewpoints) – controversial issue of public importance discussed – broadcaster did not make reasonable efforts to present significant viewpoints during the period of current interest – upheld

Standard 6 (fairness) – Mr Muir allowed to make serious, unchallenged and unsubstantiated allegations of impropriety and illegal behaviour about named individuals – Mr Sieling, Mr Catran and Mr Hewlett dealt with unfairly – comments about Mr Barclay and Mr Bartley were brief general criticisms and as such they were not treated unfairly – upheld

Standard 5 (accuracy) – subsumed into consideration of Standards 4 and 6

Orders
Section 13(1)(a) – broadcast of a statement

Section 16(1) – payment of costs to the complainants of $2,000

This headnote does not form part of the decision.

Broadcast

[1]   On 15 February 2009, Kool FM broadcast an interview featuring Coromandel resident Bill Muir. During the item, Mr Muir made a number of statements alleging that some named members of the Thames Coromandel District Council (TCDC) had acted inappropriately and dishonestly in relation to the lease of a piece of Council-owned property known locally as the “Sherriff Block”.¹

Complaint

[2]   Through their lawyer, Adrian Catran, Dirk Sieling, Noel Hewlett, Bill Barclay and Jan Bartley made a formal complaint to Kool FM, the broadcaster, alleging the item breached broadcasting standards relating to controversial issues, accuracy and fairness. The complainants were all elected officials of the TCDC.

[3]   With respect to Standard 4 (controversial issues – viewpoints), the complainants argued that the broadcast had discussed a controversial issue of public importance. They said that the station was therefore “obliged to broadcast, within the period of current interest, other significant views”. They noted that Kool FM had interviewed the TCDC’s Chief Executive, Steve Ruru, a week after Mr Muir’s interview and put some of the issues to him, but contended that not all the main issues were addressed in that subsequent interview. The complainants argued that the broadcaster had never sought the views of the councillors directly attacked in Mr Muir’s interview, in particular, those of Mr Sieling and Mr Catran. The complainants considered that the omission of their viewpoints created a lack of balance in the item breaching Standard 4.

[4]   Turning to Standard 5 (accuracy), the complainants outlined 19 specific statements made by Mr Muir which they alleged were factually inaccurate:

• that Mr Sieling had illegally disclosed, at a public meeting, confidential information received in his capacity as a councillor to advance his private business interests.

• that Mr Sieling “tabled” the confidential or publicly-excluded TCDC documents about his land at the meeting.

• that it is automatically an offence for a councillor to raise information provided for a publicly-excluded portion of a meeting in the non-publicly-excluded portion.

• that there were multiple competing tenders for the Sherriff land, and that the TCDC gave Mr Sieling information about them.

• that Mr Sieling owed the TCDC $120,000.

• that the TCDC forgave Mr Sieling some of this debt.

• that Mr Sieling owed the TCDC money for rates, including water rates.

• that Mr Sieling owed the TCDC about $40,000 received from the BluesFest.

• that the TCDC would have no legal recourse if Mr Sieling were to use the land as “a nuclear dumping ground”.

• that the manner in which the TCDC has dealt with Mr Sieling’s lease is the equivalent of allowing any person to appropriate for themselves and lease any piece of Council land, and claim the profits on it, and later receive approval from the TCDC.

• the lease that has now been negotiated between the TCDC and Mr Sieling may have “signed away the possibility” of its use as a sports ground.

• that Mr Sieling was “sitting on a committee” that was considering the lease issue that involved him.

• that Councillor Hewlett’s decision not to stand in the next TCDC election was because of his involvement in unspecified “corruption issues”.

• that Mr Sieling should have pressed the TCDC to formalise his lease after he was elected.

• that Mr Sieling was making $50,000 per year off the land as a dairy farmer.

• the value of the loss to the community of the TCDC’s agreement with Mr Sieling over the Sherriff land was “9-10 million dollars over three years” (which would have been brought in by the BluesFest) that the TCDC “have seen fly out the door because they are trying to do dealings with their insider trading councillors”.

• that Mr Echave said during negotiations that he wanted control of the land for grazing to recover some of his lease when he was not using it for the BluesFest.

• Mr Sieling stood for TCDC because he observed that he could exploit the TCDC from inside.

• that the Service Delivery Committee gave Councillor Catran authority to negotiate the terms of the agreement with Mr Sieling and that he “thrashed out” a “deal” with Mr Sieling.

Overall impression created by the broadcast

[5]   The complainants argued that, quite apart from the specific inaccuracies, the overall impression created by the interview was that the named councillors were corrupt, that the Sherriff land agreement was an example of their corruption, and that they, in particular Mr Sieling, had illegally used information to facilitate deals that jeopardised the public interest. They contended that the impression given by the broadcast was misleading and inaccurate because it failed to provide the proper contextual information, without which, listeners could not understand the true position.

Reasonable efforts

[6]   The complainants contended that the broadcaster had not made reasonable efforts to ensure the programme was accurate and not misleading. They contended that Mr Muir was a guest whose bias against the TCDC was well known and that Mr Muir had a track record of making unsubstantiated accusations of illegal activity. The complainants argued that the host “was well aware of the nature of the criticisms that Mr Muir was going to advance” and that “instead of interviewing Mr Muir’s views in a reasonable and neutral way, the host took sides with him”.

[7]   The complainants considered that, “far from emphasising that the criticisms advanced were comment and analysis, the host had repeatedly told listeners that the criticisms were factually accurate and based on documentation”. They contended that, “at no point before or after the broadcast, did the station contact any of the councillors named and attacked on the broadcast for information or comment”. The complainants argued that, while the TCDC’s Chief Executive Mr Ruru was interviewed the following week, “that did not address the unfairness and lack of impartiality of the initial broadcast”.

[8]   Turning to Standard 6 (fairness), the complainants considered that both the host and Mr Muir had made extremely serious personal accusations against Mr Sieling and other members of the TCDC. These included accusations that they had acted illegally, in situations of conflict of interest, were guilty of “insider trading”, unlawfully disclosed confidential information for personal gain, were guilty of “dirty dealing” and were “dishonest” and “crooked”. They argued that, even if some of the criticisms could be considered comment, they remained grossly unfair to Mr Sieling and the other councillors.

Standards

[9]   Kool FM assessed the complaint under Standards 4, 5 and 6 and guideline 5a of the Radio Code of Broadcasting Practice. These provide:

Standard 4 Controversial Issues - Viewpoints

When discussing controversial issues of public importance in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

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/or
• does not mislead.

Guideline 5a

The accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[10]   Dealing with accuracy first, Kool FM maintained that the 19 statements were accurate.

Overall impression created by the broadcast

[11]   Kool FM argued that “the overall impression of the Bill Muir broadcast was a point of view balanced by a later interview with the TCDC Chief Executive” and that this interview provided the wider contextual information allowing the public to make informed judgments about the issue. It contended that, “Any overall impression of corruption stems in the first instance from ‘the facts’ and not only from the impression created from the broadcast”.

Reasonable efforts

[12]   The broadcaster considered that it had made reasonable efforts to ensure the programme was accurate and not misleading. It contended that it had “systematically and thoroughly disproved” the complainants’ 19 alleged inaccuracies, and that, on this basis, there did not “appear to have been any misleading information provided at all”.

[13]   Kool FM argued that Mr Muir’s “track record”, as referred to by the complainants, was not relevant. It said that the interview subject to complaint was “only the second time” it had spoken with Mr Muir, the first being “a courtesy call to confirm he had the paperwork to back up any allegation he may make on air”. It considered the complainants’ assertion that it would have been well aware of the nature of Mr Muir’s criticisms prior to the interview to be inaccurate.

[14]   The broadcaster contended that, “As for encouraging Mr Muir, Kool FM’s interviewer was dumbfounded that such things could be going on with impunity, so what you may hear as encouragement was actually incredulity”. It noted that the Whitianga Residents and Ratepayers Association (WRRA) had referred the entire matter of the lease to the Office of the Auditor-General and was waiting for a ruling.

[15]   Kool FM argued that it had made inquiries about the issues raised by Mr Muir before the broadcast with East Coast Councillor Dal Minogue and that Mr Minogue’s opinions were not “coloured” because he was “a critic of those being attacked”. It stated that, on 20 February 2009, it had emailed Mr Sieling and invited him “to appear on radio for a right of reply”, but Mr Sieling had never responded to the email.

[16]   The broadcaster contended that the documentation it had, including Council minutes and order papers, showed that the criticisms contained in the interview were factually accurate. It declined to uphold the complaint that the item breached Standard 5.

[17]   Turning to Standard 6 (fairness), Kool FM argued that the complainants had chosen a selected series of words from the text of Mr Muir’s interview to “conjure up a scene of extreme unfairness”. “Looked at in the broad context, including the facts that Mr Sieling chose not to make himself available for an interview and that the TCDC Chief Executive was interviewed at a later date”, the interview with Bill Muir was fair, it said.

[18]   With respect to Standard 4 (controversial issues – viewpoints), the broadcaster reiterated its contention that it had made efforts to contact Mr Sieling so that he could reply to Mr Muir’s accusations and that its interview with Mr Ruru the following week had provided the necessary balance. It stated that its interview with Mr Ruru lasted for a longer period of time than Mr Muir’s interview and that Mr Ruru had been “given ample opportunity to address all matters relating to the issue”.

[19]   Kool FM declined to uphold the complaint that the item breached Standard 4. The broadcaster attached to its decision copies of the documentation it relied upon to support its findings.

Referral to the Authority

[20]   Dissatisfied with the broadcaster’s response, the complainants referred their complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Auditor-General’s report

[21]   The complainants noted that the Office of the Auditor-General was investigating the matter and suggested that the Authority postpone its consideration of the complaint until the Auditor-General’s findings were released. After discussion with the parties, the Authority agreed and the complaint was put on hold until the Auditor-General’s report on the lease was available.

[22]   The Auditor-General’s report, “How the Thames-Coromandel District Council Managed Leasing Arrangements for Council Land in Whitianga”, was released in November 2009.

Submissions on referral

[23]   Having received the Auditor-General’s report, the complainants made the following submissions as part of their referral to the Authority.

[24]   The complainants argued that “Kool FM broadcast a lengthy interview with Bill Muir who accused several named councillors of corruption and illegality” and that “the interviewer made no attempt to inject any balance, but instead joined in and made serious criticisms of his own against the same people”. They contended that both the host and Mr Muir had “based their accusations on inaccurate and selective portrayals of the facts”.

[25]   The complainants provided the Authority with a summary detailing the background to the lease, the issues surrounding the BluesFest, the formalisation of the lease and the final resolution of the lease between the Council and Mr Sieling.

Accuracy

[26]   The complainants maintained that the 19 specific statements made by Mr Muir outlined in the formal complaint were factually inaccurate and provided comment rebutting Kool FM’s findings in this respect. They also reiterated the argument that the broadcaster had not made reasonable efforts to ensure that the programme was accurate in relation to all material points of fact and did not mislead listeners.

Fairness

[27]   The complainants reiterated their contention that the item had treated them unfairly.

Controversial Issues – Viewpoints

[28]   The complainants said that the interview had involved a discussion of a controversial issue of public importance and that Kool FM failed in its obligation to broadcast other significant viewpoints on the issue within the period of current interest.

[29]   The complainants provided the Authority with a copy of a decision by the Press Council in relation to a complaint regarding an article in The Informer magazine which dealt with similar issues in relation to the lease. They said that the decision criticised the magazine’s coverage of the lease issue. They also supplied various other documents, including letters and emails from the Council to Mr Sieling and tax invoices for rates and water charges from TCDC to Mr Sieling for the Sherriff Block.

Broadcaster’s Response to the Authority

[30]   Kool FM stated that, over the past ten years, it had received numerous complaints about the TCDC and its councillors, staff and operations. It said that when Mr Muir contacted it to discuss the “Sieling issue” it had asked him if he could “back up anything he was discussing”, and Mr Muir provided it with a large folder of documents in support of what he was saying. It contended that, “Not being a lawyer... all [the host] could do was read the material and make a judgment call on whether there was a case to answer”.

[31]   The broadcaster said that it had recorded the interview with Mr Muir and emailed Mr Sieling offering the same 40- to 60-minute timeslot for his response, but he had never responded. It contended that, without Mr Sieling’s view, it asked the “next best involved party”, the CEO of the TCDC, who discussed the issue for an hour on air.

[32]   Kool FM alleged that the Auditor-General’s report found that there was no official lease for the Sherriff Block between Mr Sieling and the TCDC. It argued that the TCDC had “set the agenda” by asking the Auditor-General whether the Council was at fault in its procedures and that the Auditor-General’s office was never asked to “investigate Sieling’s possible fraudulent act of signing a sublease when not controlling the head lease”. It maintained that Mr Sieling had inherited a “grazing arrangement” and that the Auditor-General’s office made the “mistake” of calling the arrangement a lease while accepting that no formal lease existed.

[33]   The broadcaster argued that, while it may not have done “everything by the book”, Mr Sieling’s actions in relation to the lease were “illegal and therefore deserved to be brought to public attention”. It reiterated its belief that Mr Sieling “had no lease”, that the TCDC lease protocol and regulations stated that “the land should have gone to competitive tender” and that the proper Council procedure had not been followed.

[34]   Kool FM repeated its argument that the broadcast was accurate and had not misled listeners.

Complainants’ Final Comment

[35]   The complainants stated that Kool FM was still labouring “under the misapprehension that the only thing that can give rise to a legal interest connected with land is a formal contract”. They said that:

...the Council and Mr Sieling agreed to lease the property, that the specific terms were set out in a letter from the Council early on (including Mr Sieling’s obligation to farm the land in a husband-like manner), that the lease was important to Mr Sieling because he wanted some security of tenure to justify spending money improving the land – as he subsequently did, that Mr Sieling pressed for the agreement to be formalised and the Council led him to believe that this was happening, and that both parties regarded themselves as having a leasing arrangement.

[36]   The complainants contended that, in these circumstances, it was unsurprising that the Council’s legal advisors concluded that Mr Sieling had an enforceable interest in the land and that the Auditor-General’s report had also made that assumption. They argued that Kool FM was wrong when it stated that the Auditor-General found “there was no official lease” in its summary, as the Auditor-General “merely criticised the Council for ‘not formally documenting’ the lease agreement” and had referred throughout the report to Mr Sieling as the “lessee”.

[37]   The complainants argued that Mr Sieling had always maintained that he had a leasehold interest in the land. They stated that this justified Mr Sieling’s “sublease to the sharemilkers, and his receipt of the BluesFest sublease payment, which he subsequently applied to offset the market rent for the lease – rent he always accepted was owing”.

[38]   The complainants maintained that the 19 statements raised in their formal complaint were inaccurate and that the item was misleading and unfair to the complainants.

Broadcaster’s Additional Information

[39]   Kool FM informed the Authority that the Whitianga Residents and Ratepayers Association had taken the leasing matter to the police in an effort to have charges laid against Mr Sieling.

Complainants’ Response to the Authority

[40]   The complainants contended that the fact that the WRRA had asked the police to investigate the issue of the lease added nothing to the complaint.

[41]   On 22 April 2010, the complainants informed the Authority that the police had declined to investigate the issue. They provided an article from the Hauraki Herald dated 20 April 2010 that contained a quote from police saying there was “no police involvement required”.

Authority's Determination

[42]   The members of the Authority have listened to a recording of the broadcast complained about, Kool FM’s recorded submission, and Kool FM’s interview with Mr Ruru, and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 4 (controversial issues – viewpoints)

[43]   Standard 4 states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[44]   The Authority has previously defined a controversial issue of public importance as something that would have a “significant potential impact on, or be of concern to, members of the New Zealand public” (see Powell and CanWest TVWorks Ltd²).

[45]   In our view, the interview with Mr Muir discussed whether there had been any impropriety by council members and staff in relation to the lease of the “Sherriff Block”. We consider that, while confined to a local community in this case, the issue of whether public officials have acted dishonestly or illegally is a controversial issue of public importance as envisaged by the standard, and that the item discussed that controversial issue.

[46]   We now turn to consider whether the broadcaster made reasonable efforts to provide listeners with the required significant viewpoints during the period of current interest.

[47]   Having allowed Mr Muir nearly 45 minutes to air his views on a controversial issue – during an interview in which the host reinforced rather than challenged Mr Muir’s views – we consider that the broadcaster was required to make genuine efforts to seek other significant perspectives on the issues raised by Mr Muir.

[48]   Kool FM contended that it had made reasonable efforts to contact Mr Sieling so that he could reply to Mr Muir’s accusations, including emailing an offer to Mr Sieling to be interviewed in the same timeslot and calling Mr Sieling’s house and leaving a message with the person who answered. We note that Kool FM made no attempt to contact the other named councillors for comment. When taking the serious and damaging nature of Mr Muir’s allegations into account, we find that one email and a phone message for Mr Sieling did not amount to making “reasonable efforts” or giving “reasonable opportunities” for Mr Sieling and the other councillors to respond.

[49]   We consider that Mr Sieling’s perspective was central to the issues under discussion such that Kool FM was required to make genuine, direct efforts to obtain Mr Sieling’s comments and give him an opportunity to respond to Mr Muir’s allegations. The casual and vague approaches made by Kool FM in this instance were, in our view, neither reasonable nor sufficient.

[50]   Standard 4 allows balance to be provided during the period of current interest. With respect to Kool FM’s interview with TCDC’s Chief Executive Mr Ruru, we are of the view that Mr Ruru was not in a position to be able to adequately present Mr Sieling’s views, or those of the other councillors, on the specific allegations of impropriety. Rather, Mr Ruru focused on the actions of the deputy mayor and provided general comment about the leasing arrangement. Accordingly, we do not consider that the subsequent interview with Mr Ruru provided the necessary significant viewpoints to counter the accusations made by Mr Muir about Mr Sieling and the other named councillors.

[51]   We therefore find that the broadcaster failed to make reasonable efforts to present significant viewpoints on the controversial issue of public importance discussed during the period of current interest.

[52]   Having reached this conclusion, we must consider whether to uphold this complaint as a breach of Standard 4.

[53]   We acknowledge that upholding the Standard 4 complaint would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. In Commerce Commission and TVWorks Ltd³, the Authority determined that upholding a complaint under Standard 4 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 4 in the following terms:

... the balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion. 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.

[54]   With that in mind, we must consider whether it would be a reasonable and proportionate limit on Kool FM’s freedom of expression to uphold a breach of Standard 4 on this occasion. We find that upholding this complaint would reinforce the principle that, when an interviewee makes serious allegations about named individuals, broadcasters must make reasonable efforts to present other significant viewpoints in another programme within the period of current interest. In this respect, upholding this complaint clearly promotes the objective of Standard 4, and therefore places a justified and reasonable limit on Kool FM’s freedom of expression. We therefore uphold the complaint that the item breached Standard 4.

Standard 6 (fairness)

[55]   Standard 6 requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme. We note that each of the complainants was named by Mr Muir during the item.

[56]   As a general principle, we consider that any programme in which an accuser alleges that an identified person has committed serious improprieties, without that person being given an adequate right of reply, is likely to be inherently unfair to the accused.

[57]   During his interview, Mr Muir was allowed to make unchallenged allegations about Mr Sieling, which included accusations that he had acted illegally in situations of conflict of interest, unlawfully disclosed confidential information for personal gain, and was guilty of “insider trading”. Mr Muir also said that Mr Sieling and Mr Catran had acted in a corrupt and dishonest manner in relation to the lease and had “thrashed out” a deal in an inappropriate manner that favoured Mr Sieling.

[58]   We also note that Muir stated that Mr Hewlett was not going to stand for council again because of “corruption issues”.

[59]   We consider that the statements and allegations made by Mr Muir about Mr Sieling, Mr Catran and Mr Hewlett, including allegations of corruption and other illegal acts, went far beyond acceptable comment on political activity. In our view, the host gave Mr Muir a platform to launch a personal attack on the people he referred to, and made no attempt to challenge what he was saying.

[60]   Accordingly, we consider that by allowing Mr Muir to make serious allegations about Mr Sieling, Mr Catran and Mr Hewlett, and by not offering them a reasonable opportunity to comment, the broadcaster dealt with these people unfairly.

[61]   With respect to Mr Barclay and Mr Bartley, we find that Mr Muir’s comments were framed as general criticisms of their actions, which is legitimate in the context of political speech. We do not consider that either of these complainants was dealt with unfairly by the broadcaster.

[62]   Having reached the conclusion that Mr Sieling, Mr Catran and Mr Hewlett were dealt with unfairly by the broadcaster, we must consider whether to uphold this complaint as a breach of Standard 6.

[63]   In Commerce Commission and TVWorks Ltd⁴ the Authority determined that upholding a complaint under Standard 6 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 6 in the following terms:

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.

[64]   We must now consider whether it would be a reasonable and proportionate limit on Kool FM’s freedom of expression to uphold a breach of Standard 6 on this occasion. We have found above that Mr Sieling, Mr Catran and Mr Hewlett were treated unfairly because Mr Muir was given a platform to launch a personal attack on these individuals while the host made no attempt to challenge what he was saying.

[65]   Upholding a breach of the fairness standard on this occasion would remind broadcasters to ensure that they deal with people referred to in an item in a just and fair manner. In this respect, upholding this complaint clearly promotes the objective of Standard 6 (as outlined in paragraph [63] above).

[66]   In these circumstances, we find upholding the fairness complaint places a justified and reasonable limit on Kool FM’s freedom of expression. Accordingly, we uphold the complaint that the interview with Mr Muir breached Standard 6.

Standard 5 (accuracy)

[67]   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.

[68]   In our view, many of the statements made in the broadcast can be distinguished as Bill Muir’s genuine opinion, analysis and comment which were not subject to the requirement for accuracy (guideline 5a).

[69]   With respect to those statements made by Mr Muir which were statements of disputed fact, we consider that our decision in respect of balance and fairness above adequately and appropriately addresses those aspects of the complaint. While we are not in a position to determine, for example, whether Mr Sieling was earning $50,000 per year off the land as a dairy farmer, we have considered whether the programme should have presented alternative perspectives on that issue, and whether this was unfair to Mr Sieling.

[70]   In these circumstances, we subsume these aspects of the Standard 5 complaint into our consideration of balance and fairness.

For the above reasons the Authority upholds the complaint that the broadcast of an item on Kool FM on 15 February 2009 breached Standards 4 and 6 of the Radio Code of Broadcasting Practice.

[71]   Having upheld a complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on Orders

Complainants’ submissions on orders

[72]   The complainants submitted that an order to broadcast a statement summarising the decision would not, by itself, be sufficient to redress the harm caused by the broadcast. They stated that, “Given the seriousness of the allegations – particularly against Mr Sieling – they seek an order requiring an apology to be broadcast, as a measure that would go some way to restoring their reputation”.

[73]   The complainants sought full reimbursement of their legal costs, which they said totalled $5,343.75. They submitted that an order for Kool FM to pay the full amount was reasonable due to:

• the complexity of some of the issues and the range of allegations broadcast

• the fact that the issues were serious in nature

• Kool FM’s meritless submissions and large accumulations of irrelevant documentation drawing out the process

• the need for three sets of primary submissions: the original referral, the substantive submissions and supplementary submissions

• preliminary issues having to be addressed, such as deliberations about waiting for the outcome of the Auditor-General’s report before determining the complaint

• the fact that Kool FM had been given an opportunity to apologise after the release of the Auditor-General’s report, but it had refused

• the complaint ranging across three standards, and that upholds were entered or subsumed in relation to all three.

[74]   The complainants also submitted that, due to the seriousness of the breaches, an order of costs to the Crown was appropriate.

Broadcaster’s submissions on orders

[75]   Kool FM stated that the figures supplied to the Attorney-General’s office for its report by the TCDC were wrong, and that the TCDC had asked for the “Council’s permission to sue for the outstanding monies they insist are owed by Mr Sieling”, which it said amounted to $16,000.

[76]   The broadcaster submitted that, in light of this new information, the Authority should re-examine the complaint or, if it was going to continue, the Authority should separate Mr Sieling’s complaint from those of the other complainants.

[77]   Kool FM submitted that it was prepared to “broadcast a public apology for any slight Mr Catran may have felt”. Further, it submitted that the Authority should make its orders on the basis that the issues surrounding Mr Sieling were ongoing.

[78]   The broadcaster considered that neither an award of costs to the Crown nor payment of the complainants’ legal costs was warranted on this occasion.

[79]   Kool FM said that it was a community radio station and that ordering it to pay a “substantial fine” or “huge costs” could mean that it ceased to broadcast. It submitted that, if the Authority was considering an order of costs, it would like it to explore other avenues such as “restricting the station’s broadcasting for a period of time”.

Authority’s Decision on Orders

[80]   With respect to the broadcaster’s “new information”, we consider that it does not warrant the re-examination of our decision. We point out that our determination of the complaint relates to the actions of Kool FM in relation to the broadcast on 15 February 2009 and not what might be currently occurring between Mr Sieling and the TCDC.

[81]   We have considered the submissions on orders from the parties. We are of the view that it is appropriate to order Kool FM to broadcast a statement containing a comprehensive summary of this decision. The statement must be presented within one month of the date of this decision and be at a time and on a date to be approved by the Authority.

[82]   With respect to the complainants’ submissions that Kool FM should be ordered to make a public apology, we note that the Authority has ordered apologies only rarely and in exceptional circumstances (see, for example, Ellis and Radio New Zealand⁵). In these circumstances, we do not consider that an order requiring the broadcaster to apologise is appropriate on this occasion.

[83]   Turning to the complainants’ submission that Kool FM should be ordered to pay costs to the Crown, we note that, while the broadcaster did not go far enough, it did attempt to create balance and fairness by subsequently interviewing Mr Ruru. In our view, an order of costs to the Crown is not warranted on this occasion.

[84]   With respect to the issue of legal costs incurred by the complainants, the Authority’s policy is that costs awards for complainants whose complaints have been upheld will usually be in the range of one-third of costs reasonably incurred. We consider that $5,343.75 is a reasonable sum for total legal costs incurred by the complainants, and one third of that amount is $1,781.25.

[85]   This amount may be adjusted upwards or downwards depending on the circumstances. We note that the complaint concerned reputational interests and that it had a complex factual background. As a result, we have adjusted the award upwards to $2,000.

[86]   We have considered the New Zealand Bill of Rights Act 1990 and the principle of freedom of expression in ordering the broadcast of a statement under section 13(1)(a) and the payment of legal costs under section 16(1) of the Broadcasting Act 1989. On this occasion we are satisfied that the orders we have made are consistent with the New Zealand Bill of Rights Act’s requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society .

Orders

The Authority makes the following orders pursuant to sections 13 and 16 of the Broadcasting Act 1989:

1. Pursuant to section 13(1)(a) of the Act, the Authority orders Kool FM to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision

• be broadcast at a time and on a date to be approved by the Authority

• contain a comprehensive summary of the upheld aspects of the Authority’s decision.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2. Pursuant to section 16(1) of the Act, the Authority orders Kool FM to pay to the complainants costs in the amount of $2,000 within one month of the date of this decision.

The order for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich
Chair
14 September 2010

Appendix

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

1.          Adrian Catran, Dirk Sieling, Noel Hewlett, Bill Barclay and Jan Bartley’s formal complaint –
            13 March 2009

2.          Kool FM’s response to the formal complaint – 13 April 2009

3.          The complainants’ referral to the Authority – 13 May 2009

4.          The complainants’ referral submissions – 14 December 2009

5.          Kool FM’s response to the Authority – 31 January 2009

6.          The complainants’ further comment – 8 March 2010

7.          Kool FM’s further comment – 13 March 2010

8.          Kool FM’s further comment – 22 March 2010

9.          The complainants’ response – 23 March 2010

10.         Kool FM’s further information – 27 March 2010

11.         The complainants’ response – 27 March 2010

12.         The complainants’ further information – 22 April 2010

13.         Kool FM’s response – 27 April 2010

14.         Further information from Kool FM – 24 May 2010

15.         Response from the complainants – 24 May 2010

16.         The complainants’ submissions on orders – 19 July 2010

17.         Kool FM’s submissions on orders – 2 August 2010

¹Due to the length and complexity of the issues surrounding the lease, an outline of events is provided in the Auditor-General’s report on the lease which is available on its website at: www.oag.govt.nz.

²Decision No. 2005-125

³Decision No. 2008-014

⁴Decision No. 2008-014

⁵Decision No. 2004-115