Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
3 News – item broadcast secret recording of comments made by National Party deputy leader Bill English – allegedly unfair
Standard 6 (fairness) – broadcast of anonymously supplied tape inherently unfair – however, Mr English had opportunity to comment, John Key provided comment, and 3 News informed viewers of circumstances surrounding the tape – degree of public interest leading up to election – not upheld
This headnote does not form part of the decision.
 An item on 3 News, broadcast on TV3 at 6pm on 4 November 2008, reported that 3 News had been sent a secret recording of comments made by the deputy leader of the National Party, Bill English, at a cocktail party during National's August 2008 conference. The 3 News presenter said, The recording is clearly designed to derail John Key’s election campaign .
 The recording, played during the item, was of Mr English making the following comments:
I'm a bit worried about this whole Obama and Europe thing, just because there's a limited effectiveness in being moralistic about international relations and Europe has turned out to be particularly ineffective even in its own backyard... and the US you can argue overdo it, and Bush should have put a different window - window dressing - there still needs someone willing to pull the trigger.
 The 3 News political editor stated that:
This tape comes from the same source who has leaked us the previous tapes that we’ve run, but we don’t get a choice of material. It comes packaged up and what you see and hear at home is what we have actually been sent. Our source has already said he’s not a Labour Party member, though National believe that those around him are linked to the Labour Party - of course Helen Clark's denying that.
 Then the following exchange took place between the 3 News presenter and the political editor:
Presenter: ...the broadcasting of the tape could be seen as unfair to National in this last
week of the campaign.
Pol. Editor: Yes, that's right, 3 News acknowledges that it is to some extent they're being
used by someone who obviously has it in for the National Party – that the
closer the election gets, the more serious the impact could be. But at the
same time it is not our job to censor the news; if we didn't report it we’d be
failing in our duty. So really all 3 News can do in this is broadcast the
material and let the public make up their own minds.
 Robin Grieve made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the item breached the fairness standard, and particularly guideline 6a, because the recording played in the item did not include the question or comment that prompted Mr English's remarks. He said that, while TVWorks claimed they did not edit the tape, guideline 6a required that the extract used was a true reflection of the original event. By TVWorks' admission, Mr Grieve said, it did not know the context of the statement, and had the surrounding comments been included they may have significantly altered the meaning of Mr English's statement.
 The complainant argued that, instead of asking Mr English to provide the context of his own comments, which was not sufficient to satisfy the standard, TVWorks could have asked the person who provided the recording. He considered that, as that person had refused to provide any further details, the reasonable conclusion was that the context undermined their intent to damage the National Party.
 Mr Grieve maintained that if broadcasters did not adhere to guideline 6a, the use of secretly recorded tapes with vital words edited out could lead to someone having attributed to them a comment they did not make. TV3 did not ensure that this did not happen on this occasion, he said.
 Mr Grieve nominated Standard 6 and guideline 6a of the Free-to-Air Television Code of Broadcasting Practice in his complaint. These provide:
Standard 6 Fairness
In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.
Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.
 TVWorks maintained that the item did not treat either the National Party or Mr English unfairly. It was carefully explained in the item, it said, that the tape used was an extract and that the person who had created the tape had refused to provide any more of the recording or any explanation of the context. The only other person able to provide more information about the conversation was Mr English himself, TVWorks wrote, and, as the item explained, he declined to be interviewed.
 TVWorks concluded that the item was not unfair or edited in breach of guideline 6a, and declined to uphold the complaint.
 Dissatisfied with TVWorks' response, Mr Grieve referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. He accepted TVWorks' arguments, but considered they were not relevant to guideline 6a, which requires the broadcaster to "ensure" the extracts used are a true reflection of the original events or views expressed.
 The complainant argued that the guideline was "not nullified just because someone else edits it, nor is it nullified because Mr English did not want to be interviewed". The fact that Mr English chose not to provide the context of his comments did not excuse TVWorks from its responsibility under the guideline, he said.
 Mr Grieve maintained that the recording should not have been broadcast unless TVWorks had received further information from the person who provided the tape, or obtained additional verification some other way. He emphasised that, even though it did not know whether the tape had been edited, the responsibility to ensure the recording was a true reflection of events lay with TVWorks, not Mr English or the tape provider.
 Further, the complainant considered that offering Mr English an opportunity to comment did not satisfy TVWorks' obligations under the fairness standard. He requested that the Authority provide guidance for broadcasters presented with "secretly and dishonestly recorded tapes... that are pre-edited".
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Mr Grieve has asked the Authority to consider whether TVWorks was in breach of Standard 6 (fairness), and specifically guideline 6a, for broadcasting the recording of Mr English when it could not ensure that the extract was a true reflection of the views expressed by Mr English. The Authority notes that guideline 6a exists to safeguard against broadcasters editing raw programme material so as to distort the original event or the overall views expressed. In this case, the broadcast involved a recording that had been edited by a third party, not the broadcaster. Accordingly, the Authority considers that guideline 6a does not apply in this instance.
 However, broadcasters are still responsible for all material that is broadcast, even if it has been edited by third parties. The Authority now turns to consider Mr Grieve's complaint under the fairness standard as a whole.
 Standard 6 (fairness) requires broadcasters to deal justly and fairly with individuals who participate or are referred to in a programme. The Authority shares Mr Grieve’s concern at the use of recordings which have been obtained through covert means, particularly in circumstances in which the broadcaster is unable to vouch for their authenticity. The Authority has previously held that covert recordings are inherently unfair, and must be justified by the public interest (see, for example, Decision No. 2004-199).
 On this occasion, the Authority has no basis on which it could reasonably find that the recording broadcast on 3 News misrepresented Mr English, or that the broadcaster had treated Mr English unfairly. It notes that, once the tape was received, 3 News approached Mr English and offered him an opportunity to comment on the recording; he declined. However, 3 News then broadcast a response from his party leader, John Key, who pointed out that there was no context to the recording. The presenters emphasised for viewers that the tape had not been edited by 3 News and that they were unable to verify the context in which the recording was obtained, but felt obliged to broadcast the tape and let viewers interpret it for themselves. Further, as the broadcast occurred four days before the general election, the Authority considers there was a degree of public interest in the recording.
 In these circumstances, the Authority finds that TVWorks did not treat Mr English unfairly by playing the tape on 3 News. It declines to uphold the fairness complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
5 March 2009
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Robin Grieve's formal complaint – 5 November 2008
2. TVWorks' response to the complaint – 5 December 2008
3. Mr Grieve's referral to the Authority – 21 December 2008
4. TVWorks' response to the Authority – 14 January 2009