BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

Forgotten Silver was the title of the seventh in a series of seven New Zealand plays

broadcast on Montana Sunday Theatre. It was screened on TV One at 8.30pm on 29

October 1995.

Each of the complainants individually complained to Television New Zealand Ltd that

while the programme was promoted and presented as a factual documentary, the

producers knew it to be fictional. As they had been deliberately misled, each

maintained that the broadcast breached the broadcasting standards.

Maintaining that the programme was not promoted as a documentary and that there were

indicators that it was a hoax, a fact which was acknowledged promptly after the

broadcast, TVNZ declined to uphold the complaints. Dissatisfied with TVNZ's

decision, the complainants referred their complaints to the Broadcasting Standards

Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below the Authority declined to uphold the complaints.

Decision

The members of the Authority have viewed the item complained about and have read the

correspondence (summarised in the Appendices). As is its practice, the Authority has

determined the complaints without a formal hearing.

Forgotten Silver was the title of the programme broadcast in the Montana Sunday

Theatre slot on TV One at 8.30pm on 29 October 1995. TVNZ usually broadcasts

drama at that time and Forgotten Silver was the seventh and last in a series of New

Zealand plays.

Forgotten Silver had received a reasonable amount of publicity before it was broadcast.

It was understood that it would tell the story of Colin McKenzie, a pioneer New

Zealand film maker, as his long-forgotten work had recently come to the notice of Peter

Jackson, a successful international film director.

The programme began with Mr Jackson explaining how he came across Mr McKenzie's

work and then showed extracts from films apparently made before the first world war.

The extracts from that period included a shot of Richard Pearce flying an aeroplane in

March 1903, of an early film in colour and an early talkie (in Chinese). The programme

then explained Colin McKenzie's efforts in establishing a set on the West Coast during

the first world war and his trials while he filmed the biblical story of Salome during the

following years. It recorded that "Salome", although completed, had not been screened

until recently and that Colin McKenzie died as a news reel photographer during the

Spanish Civil War.

In Spain, it was reported, he married a young New Zealand nurse who, as an elderly

woman, was interviewed on several occasions and who had kept much of his work in a

large box in a garden shed.

Mr Jackson and his friends were seen not only examining the material held by his

widow but also locating and uncovering the set for Salome on the West Coast.

In a stone cabinet there, they found the film shot by Mr McKenzie which, it was said,

was screened at a gala premiere in Wellington in early September 1995. Actor Sam

Neill and film historian Leonard Maltin were among the people interviewed and both

spoke very highly of Colin McKenzie as a pioneer film-maker.

Forgotten Silver was presented as if it was a documentary recounting the film making

exploits of Colin McKenzie. Interspersed were comments about his personal life –

including the point that he had in fact filmed himself being shot and killed while trying

to help a person injured during the Spanish civil war. Indeed, that footage, purported to

be obtained recently from a Spanish film archive, was screened.

A news item carried in the press and on the radio on Monday morning 30 October 1995

– the day after Forgotten Silver was screened – reported that the "documentary" was in

fact "a drama" conceived, written and made by film director Peter Jackson and film

critic Costa Botes. It was also speculated that many viewers had been deceived by the

hoax.

The formal complaints to TVNZ from Messrs Cole, Fowlie[sic] and Proctor in essence

alleged that they had been misled. They considered that they had been misled and

deceived as TVNZ had broadcast a programme which had been promoted and presented

as a documentary. However, it was later acknowledged to be a fictional programme.

Moreover, Mr Proctor commented that the item raised questions as to TVNZ's

credibility.

TVNZ acknowledged that the programme appeared to be a documentary about the

discovery of some long-lost New Zealand film material whereas it was later revealed to

be an elaborate hoax. It assessed the complaints under the standards nominated by the

complainants. They require broadcasters:

G1  To be truthful and accurate on points of fact.

G6  To show balance, impartiality and fairness in dealing with political matters,

current affairs and all questions of a controversial nature.

G7  To avoid the use of any deceptive programme practice in the presentation of

programmes which takes advantage of the confidence viewers have in the

integrity of broadcasting.

G11 To refrain from broadcasting any programme which, when considered as a

whole:

(i) Simulates news or events in such a way as to mislead or alarm

viewers.

TVNZ explained that it was not responsible for the publicity about the programme

before the broadcast on the radio or published by the print media. In its publicity

material, it explained, it had avoided the word "documentary" and had used such

phrases as "divine discovery". It also pointed out that the item was described as a

New Zealand play and had been broadcast in an established drama spot rather than at a

time for documentaries. Thus, while not disputing that viewers could well be expecting

a documentary in view of the pre-publicity, TVNZ observed:

We also believe that a number of phrases and images in the programme itself

threw into doubt the programme's authenticity as a documentary – not the least the

opening sequence where the viewer was carefully led up the garden path.

Dealing with the specific standards, TVNZ argued that standards G1 and G6 were

irrelevant to a work of fiction. Standards G7 and G11(i), it maintained, were not

intended to stifle a creative work and, further, there was no evidence of malice which

the standards seemed to require. Overall, TVNZ concluded:

The intention was never to mislead viewers by drawing them in and convincing

them of the veracity of the "facts" presented. The intention was to develop a

carefully crafted hoax with sufficient clues to leave most viewers at least

questioning whether it was all real – and then to admit freely that one of New

Zealand's outstanding film-makers (Peter Jackson) had used his very considerable

cinematic skills to produce an elaborate hoax.

When he referred his complaint to the Authority, Mr Cole argued that the broadcast

breached the nominated standards as it involved the deliberate intention to mislead

viewers and took advantage of their confidence in the integrity of broadcasting. Mr

Smith focused on standard G11(i) and stated that Forgotten Silver violated the principle

that broadcasters were not to mislead viewers.

Mr Proctor disputed TVNZ's response in some detail and, in addition to describing

TVNZ's argument about the avoidance of the word "documentary" as sophistry,

insisted that standard G11(i) had been contravened. He considered that TVNZ's and

the programme makers' actions were reprehensible and that all who had been involved

in the "sorry saga, should be suitably chastised".

The Authority's task was to determine whether the broadcast of Forgotten Silver

breached any of the nominated standards. The standards listed are in the section of the

Television Code which applies to all programmes. Nevertheless, as the programme

was acknowledged (albeit after the broadcast) to be a play, the Authority agreed with

TVNZ that standards G1 and G6 were not applicable. It was a drama and thus neither

factual accuracy nor balance was relevant.

Standard G7 requires broadcasters to avoid the use of any deceptive programme

practice. As interpreted in earlier decisions, the Authority has confined the standard to

"technical" matters, for example such as labelling, incorrectly, some film of a news

event as an "amateur video". Forgotten Silver included some material purportedly made

by Colin McKenzie which was of the technical quality expected of old material.

Accordingly, the Authority was of the view that standard G7 was an appropriate

standard to cite.

However, as the "material" apparently filmed by Colin McKenzie was shown as part of

the hoax to mislead viewers, the Authority considered that it was appropriate with these

complaints to subsume the aspects which referred to standard G7 under standard

G11(i).

Standard G11(i) requires broadcasters to refrain from broadcasting programmes which,

first, simulate news or events, and secondly, do so "in such a way as to mislead or

alarm viewers". The complaints about Forgotten Silver are the first occasion on which

it has been necessary for the Authority to interpret the applicability of the standard

G11(i) to the broadcast of an item which later has been acknowledged to be a hoax.

In considering the first part of the standard – to simulate news or events – the Authority

decided that while the broadcast was not news, it had dealt with events as if they had

really occurred. Of the many examples which could be cited, the Authority noted the

apparent filming of a flight by Richard Pearce in March 1903, the pie in the Prime

Minister's face and the apparent filming of Colin McKenzie's death during the Spanish

Civil War. Thus, the broadcast complied with the requirements in the standard to

"simulate news or events".

The Authority then considered whether the events had been simulated in such a way "as

to mislead or alarm" the viewer. In deciding on the meaning of that phrase, the

Authority kept in mind the reference in standard G7 to the "confidence viewers have in

the integrity of broadcasting".

The correspondence between the parties referred to some other well-known hoax

broadcasts – the Country Calendar item on gumboot-wearing turkeys, the item by

Richard Dimbleby on spaghetti farming in Italy and, in TVNZ's words:

Most famous of all was the Orson Welles radio broadcast of "War of the Worlds"

where a work of fiction was presented as though a live description of aliens

landing from another planet.

That "most famous" of the hoaxes was the one with which the Authority believed

standard G11(i) was designed to deal. Not only did that hoax mislead listeners, it was

also a cause of some degree of alarm throughout the United States. By comparison,

spaghetti farming and gumboot wearing turkeys (or Country Calendar's item on the

music created by plucking fence wires) involved the potential to mislead. However,

they did not have the potential to cause an even mild panic.

Following its examination of Forgotten Silver, the Authority was of the opinion that it

equated with these relatively harmless spoofs rather than the unexpected – and fear

provoking, eg the arrival of aliens.

The Authority concluded that standard G11(i) applied to those spoofs which, in addition

to possibly misleading, also contained the potential to cause alarm to viewers

because of the credibility granted by viewers to the major broadcasters. Because the

broadcast in question did not include the potential to alarm, and because it contained a

number of indications which disclosed its true nature, the Authority concluded that

standards G11(i) had not been contravened.

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

Signed for and on behalf of the Authority

Judith Potter
Chairperson
8 February 1996

Appendix I

Mr Cole's Complaint to Television New Zealand Ltd - 4 November 1995

Pita Cole of Wellington complained to Television New Zealand Ltd about the

programme Forgotten Silver broadcast at 8.30pm on Sunday 29 October 1995.

Pointing out that the programme was promoted and presented as a factual documentary,

while the producers knew the story to be fictional, Mr Cole said that he felt misled,

deceived and betrayed. He alleged that the broadcast breached standards G1, G7 and

G11(i) of the Television Code of broadcasting Practice.

TVNZ's Response to the Formal Complaint - 15 November 1995

Assessing the complaint under the nominated standards, TVNZ began:

You will recall that the programme appeared to be a documentary about the

discovery of some long-lost New Zealand film material, only to have it revealed

later as an elaborate spoof or hoax.

TVNZ also expressed regret that Mr Cole had been annoyed to the extent that he was

although, it added, it was understandable if viewers were a little miffed. Nevertheless,

it had been hoped that they would take the hoax in good humour. TVNZ also referred

to some other noteworthy broadcasting examples - such as the gumboot wearing

turkeys - where fiction had been presented as fact.

Contrary to the assertions in the complaint, TVNZ said the publicity before the

broadcast had avoided the word "documentary" - using instead such phrases as "divine

discovery" - and it was listed as a New Zealand made play. It continued:

We also believe that a number of phrases and images in the programme itself

threw into doubt the programme's authenticity as a documentary - not the least the

opening sequence where the viewer was carefully led up the garden path.

Pointing out that the item was not broadcast in an established documentary slot, but in a

"theatre" one, TVNZ said that to label it in advance as a spoof would have destroyed the

purpose of the broadcast. It observed:

This is not something that happens every night on television, nor every week,

month or year. It is an extremely rare event but we believe it has its place and on

this occasion was particularly noteworthy because of the extremely creative

manner in which the spoof was constructed and developed.

Turning to the standards allegedly breached. TVNZ argued that G1 was irrelevant to a

work of fiction. Standard G7, it added, was not applicable as it had not intended to

stifle a creative work. Further, there was no malice which G7 seemed to require and, it

maintained, as the hoax was freely acknowledged, the integrity of broadcasting had not

been threatened.

Standard G11(i), it said, fell into a similar category and, declining to uphold the

complaint, TVNZ wrote:

The intention was never to mislead viewers by drawing them in and convincing

them of the veracity of the "facts" presented. The intention was to develop a

carefully crafted hoax with sufficient clues to leave most viewers at least

questioning whether it was all real - and then to admit freely that one of New

Zealand's outstanding film-makers (Peter Jackson) had used his very considerable

cinematic skills to produce an elaborate hoax.

Mr Cole's Complaint to the Broadcasting Standards Authority - 20

November 1995

Dissatisfied with TVNZ's decision, Mr Cole referred the complaint to the Broadcasting

Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

Mr Cole argued that as the broadcast involved the deliberate intention to mislead viewers

and took advantage of their confidence in the integrity of broadcasting, the complaint

should be upheld under the nominated standards.

TVNZ's Response to the Authority - 30 November 1995

In its report to the Authority, TVNZ noted that Mr Cole did not accept its interpretation

of the standards. In reply to that point, TVNZ referred back to its letter of 15

November to Mr Cole and repeated that Forgotten Silver was listed as one of a number

of New Zealand plays.

Mr Cole's Final Comment - 6 December 1995

In response to TVNZ's comment, Mr Cole asked where was it listed that Montana

Sunday Theatre would screen "a number of New Zealand plays". As for TVNZ's

observation that drama was based on fact, Mr Cole replied that such material was

promoted as drama whereas Forgotten Silver was promoted as a factual programme.

Arguing that television had enormous power, Mr Cole wrote:

I feel TVNZ has betrayed the trust people have in television and the fact of

TVNZ's unrepentant attitude demonstrates they would have little compunction in

deceiving television audiences again.

Appendix II

Mr Smith's Complaint to Television New Zealand Ltd - 3 November

1995

Anthony Smith of Palmerston North complained to Television New Zealand Ltd about

the programme Forgotten Silver broadcast on TV One at 8.30pm on Sunday 29 October

1995. The programme, he believed, breached the standards requiring fairness and

accuracy.

Pointing out that the programme was later acknowledged to be a hoax, which TVNZ

and the programme maker might think was a "bit of a laugh", Mr Smith said that there

was no indication before, during or immediately after the broadcast that the

"documentary" was fictitious. Not only were viewers misled by the advertisements that

claimed that New Zealand was about to learn of a new hero, the fabrication was a black

mark on TVNZ's record.

Mr Smith did not accept that the placement in the Montana Sunday Theatre slot was

sufficient as true stories had been featured at that time before. He concluded:

I hope that you will consider this complaint seriously for the benefit of all those

who watched the programme that promised to rewrite the New Zealand history

books and were bitterly disappointed to find out it was a lie. More importantly I

hope that TVNZ never engages in this type of programming again, as I view

watching "Forgotten Silver" an absolute waste of time.

TVNZ's Response to the Formal Complaint - 15 November 1995

TVNZ's response was very similar to its reply to Mr Cole and it has been summarised

in Appendix I.

Mr Smith's Complaint to the Broadcasting Standards Authority - 27

November 1995

Dissatisfied with TVNZ's response, Mr Smith referred his complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

Explaining that he was not satisfied with TVNZ's reply and standing by his original

complaint, Mr Smith considered that TVNZ had seriously breached the requirement in

standard G11(i) pursuant to which broadcasters were required not to mislead viewers.

"Clearly" he wrote, "Forgotten Silver violates that principle".

Specifically in response to TVNZ's letter, Mr Smith said just because a past broadcast

had been shown to be a hoax, eg Orson Welles War of the Worlds radio broadcast, that

did not make the current broadcast acceptable: "each case should be examined on its

own merits".

TVNZ's Response to the Authority - 6 December 1995

In its report to the Authority, TVNZ advised that it had considered the complaint under

the standard - G11(i) - stressed by Mr Smith in his complaint to the Authority. It wrote:

When considered as a whole, the programme clearly did not simulate news or

events in such a way as to mislead or alarm viewers. It was not a news

programme with events set up to mislead. In fact, there were many clues

throughout the programme to establish its fictitious nature.

As one of its main objectives was to entertain viewers, and as Forgotten Silver had done

that, TVNZ did not accept that the broadcast was a breach of faith with its viewers.

Further, many viewers had applauded the quality of the programme.

Mr Smith's Final Comment - 15 January 1995

In his final comment, Mr Smith disputed TVNZ's claim that the programme was not

designed to mislead "as the clear intention of the documentary was to mislead". He

added:

I am of the firm belief that it is the broadcasters' responsibility to do their utmost

to ensure that such misleading information and visual representations are blocked

from being shown to the public.

He concluded:

I still maintain that this represents a breach of faith with the New Zealand public.

It may be so that some people enjoyed this programme, but I for one, and I know

many others who share my feelings, found the whole incident a regrettable

precedent.

Appendix III

Mr Proctor's Complaint to Television New Zealand Ltd - 9 November

1995

Brent Proctor of Bluff complained through the Broadcasting Standards Authority to

Television New Zealand Ltd about Forgotten Silver broadcast as the Montana Sunday

Theatre item on TV One at 8.30pm on Sunday 29 October 1995. TVNZ had claimed,

he wrote, that the programme would be a documentary about the life and work of

pioneer film-maker Colin McKenzie. However, next morning TVNZ had "lamely

admitted it was a fake".

The pre-broadcast publicity had included an item in the "Listener" and an interview on

National Radio in which the "perpetrators" of the hoax had spoken of an important

documentary and, Mr Proctor stated:

"Forgotten Silver" surely raises the most towering single credibility issue the New

Zealand broadcast media has ever faced; namely, that TVNZ, Jackson, Botes et al

conspired in a cruel hoax. There was no disclaimer before, during or after the

programme.

Arguing that the "miscreants" could not claim to be original, Mr Proctor criticised

TVNZ when he referred to:

... its willingness to lend succour to such an infantile and nefarious enterprise and

to actively participate in the deception of its viewers. At the end of the day we

remain none the wiser: was Colin McKenzie created out of thin air or did he really

exist?

Mr Proctor said that the item had denigrated some gifted people - Richard Pearce and

John Britten - by encouraging disbelief and cynicism. He considered that TVNZ and

the programme makers should be required to apologise fully. He concluded:

For the 1995 outrage of "Forgotten Silver" heads must roll. They could be

delivered - a la "Salome" - on a silver platter. Your teeth meantime, to borrow

from Germaine Greer, should be in their arses.

Mr Proctor also complained to the Minister of Broadcasting and the Commerce

Commission's Fair Trade Division.

In a later letter to TVNZ (23 November 1995), Mr Proctor referred to standards G1,

G7, G11(i) and wrote:

To succinctly reiterate, it is my contention that "Forgotten Silver" was a work of

fiction presented as fact; by acting as they did, the film-makers and TVNZ abused

statutory guidelines for documentary material; that the perpetrators were

fraudulent and deceitful.

TVNZ's Response to the Formal Complaint - 6 December 1995

TVNZ's response was very similar to its reply to Mr Cole and it has been summarised

in Appendix I.

Responding to the criticism about the publicity in the "Listener" and on National Radio,

it pointed out that it was not responsible for what was included in other media.

Mr Proctor's Complaint to the Broadcasting Standards Authority - 15

December 1995

Dissatisfied with TVNZ's response, Mr Proctor referred his complaint to the

Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989. He

analysed TVNZ's reply in detail and listed 12 matters on which he considered the

broadcaster was incorrect.

1) Agreeing "sadly" with TVNZ that it was not the first occasion that such a

programme had been broadcast, Mr Proctor explained that he had referred to

"similar wrecks" perpetrated by the international media and noted that TVNZ had

not disputed his argument that Forgotten Silver deserved the same title.

2) TVNZ had not attempted to rebut his argument that Forgotten Silver had crossed

"the clearly etched line" and thus it had acknowledged the breach of broadcasting

standards.

3) Mr Proctor considered TVNZ's avoidance of the word "documentary" as

sophistry. It had conceded awareness of the hoax which was an admission of

complicity in the wilful misleading of viewers.

4) The absence of an explanation as to why TVNZ lent succour to the enterprise (for

example, by not listing cast credits), he argued, was a clear contravention of

standards G1 and G7.

5) TVNZ's point that the item was broadcast in a theatre spot for New Zealand plays

was answered by the interview with the programme maker who, in the "Listener"

article, had said McKenzie's life was so dramatic that a drama spot was not

inappropriate.

6) As for TVNZ's declining to accept responsibility for other media, Mr Proctor

responded that it amounted to an abandonment of integrity on TVNZ's part. The

attitude displayed, he wrote:

...- means TVNZ threw responsibility to the wind and, simultaneously,

compromised that which is at the nucleus of mass communication:

believability.

7) Mr Proctor advanced two examples which countered TVNZ's case that standard

G1 did not apply to works of fiction. First, the broadcast contained apparent

proof that Richard Pearce flew in March 1903 and scenes were shown from the

gala premiere of the film "Salome" at a Wellington theatre on 3 September 1995.

He considered the publication of that information to be a breach of the standards

cited.

8) TVNZ's argument that dramas were based on facts which were not facts was a

euphemism for mendacity. He considered that it was a breach of standard G1.

9) In response to TVNZ's case that standard G7 was not intended to stifle creative

work, Mr Proctor maintained that it was intended to thwart the hijacking of the

airwaves by such programmes as Forgotten Silver.

10) Mr Proctor did not accept TVNZ's case that the programme had not threatened the

integrity of broadcasting or damaged viewer confidence. He referred to some

comments from viewers published elsewhere who supported his stance.

11) TVNZ did not supply figures to support its contention that it had received more

support than criticism for the broadcast. The Listener had noted:

"Of the writers of the 24 letters received on ÔForgotten Silver', 16 express

disapproval, five approve and three still believe - Editor"

12) The last points focused on standard G11(i) and, in reply to TVNZ, Mr Proctor

wrote:

News is news, fact is fact, fiction is fiction. Where the twain meet, overlap

or could cause confusion, identify and acknowledge. Period. End of

story. Forge, fake, misrepresent, propagandise or plagiarise at your

considerable peril.

He referred to programmes which clearly were fictional and those based on a fact. In

the latter case, eg "Heavenly Creatures", the programme was known to be cinematic

fiction based on fact. He continued:

All the events in "Forgotten Silver" were news-accented. The pea-brained twerps

relied on the tried and true documentary format of narrative with cameo

interviews, including several with stoic widow Hannah McKenzie and

movieworld luminaries Neill and Maltin. The real-life Hannah was not identified.

Despite TVNZ's protestations, Forgotten Silver's storyline had been designed to

mislead and the requirements in standard G11(i) had been treated "with utter contempt".

By way of summary, Mr Proctor described TVNZ's actions as shameful and, he

concluded:

The bottom line must be that TVNZ, Jackson, Botes et al were reprehensible at

the outset, they were reprehensible during and, if [TVNZ's] Mr Vautier is to be

taken at his not-upheld word, they are reprehensible in the aftermath. TVNZ not

only trampled upon every section of the Codes of Broadcasting Practice I have

cited it nuked them. ...

TVNZ, as the getaway driver in this stickup of the collective conscience, is as

culpable as gunman Jackson and cohort Botes. They are now, certainly in my

books, certified members of the Hitler Diaries Club. An unrepentant TVNZ, for

its part in this sorry saga, should be suitably chastised.

Further Correspondence

When Mr Proctor referred his complaint to the Authority, he enclosed a copy of the

letter received from the Commerce Commission explaining why it did not intend to take

action of his complaint. Mr Proctor later forwarded the Authority a copy of the reply he

received from the Minister which referred to the statutory complaints process.

TVNZ's Response to the Authority - 16 January 1996

As Mr Proctor appeared to argue that it was essential for the broadcaster to signal a hoax

in advance of the broadcast, in its report to the Authority TVNZ argued that such notice

would destroy the very idea of a hoax.

TVNZ maintained that it was legitimate for writers and film makers to use a hoax. It

reminded the Authority that the British "documentary" on spaghetti farming was widely

recognised as a classic in the field. TVNZ concluded:

We repeat that we are sorry that "Forgotten Silver" has caused so much distress.

We understand that he did not enjoy being taken in by the programme - but

recognise on the other hand that many viewers took pleasure from the programme

and expressed admiration for the clever way in which the hoax was developed and

executed. In this, as in other programmes, television cannot please all the viewers

all of the time.

Mr Proctor's Final Comment - 24 January 1996

Maintaining that TVNZ's response amounted to rearranging the Titanic's deck chairs,

Mr Proctor wrote:

No responsible broadcaster can knowingly air a hoax masquerading as a

documentary and, when called to account willy-nilly declare the programme art.

In TVNZ's entire stance, the late Justice Mahon's immortal phrase - "an

orchestrated litany of lies" - assume a chilling echo.

He argued that TVNZ had ignored his arguments about viewer reaction other than to

maintain that many were "rapturous". He described the broadcast as TVNZ's iceberg.