Complaint under section 8(1)(a) of the Broadcasting Act 1989
Agenda – item dealt with interview of the Hon John Tamihere MP published in Investigate magazine – Mr Tamihere had later claimed that he did not know the interview was being recorded – item included extracts of interview with complainant, Ian Wishart, editor of Investigate, who spoke about recording process – item also discussed journalistic ethics as to when interviews are “on” or “off the record”, and the specific expectations of interviews with politicians – allegedly unbalanced and inaccurate
Standard 4 (balance) – credibility of serving Member of Parliament and former Cabinet Minister is controversial issue of public importance – credibility issues raised and viewers left to decide – competing accounts presented – not upheld
Standard 5 (accuracy) – no inaccuracies – not upheld
This headnote does not form part of the decision.
 Following the publication in the magazine Investigate of an interview with the Hon John Tamihere MP, a debate arose as to whether Mr Tamihere knew that the interview was being recorded. The issue was covered in an item screened on Agenda, broadcast on TV One at 8.30am on 9 April 2005. The item also addressed the issue of journalistic ethics as to when an interview was “on” or “off the record” and the expectations of politicians in interviews.
 The item included extracts from an interview with Ian Wishart, the editor of Investigate, who demonstrated the process that he said he had followed for recording the interview with Mr Tamihere.
 Ian Wishart complained to Television New Zealand Ltd, the broadcaster, that the item on Agenda breached both broadcasting standards and journalistic ethics.
 Mr Wishart recalled that before the interview for Agenda, he had been asked for – and had provided – an exclusive extract from the interview with Mr Tamihere which indicated that Mr Tamihere knew it was an interview. Neither the request nor the extract, however, had been referred to during the Agenda item.
 When the interview for Agenda was being set up at the same restaurant where the interview with Mr Tamihere took place, Mr Wishart had checked whether the reporter had asked the restaurant staff if they had seen a recorder on the day of the interview with Mr Tamihere. Mr Wishart continued:
[The reporter] told me that the staff had been told not to speak as the restaurant management saw it as a dispute between two customers and did not wish to become involved. He said management felt it would be unfair to drag staff into it, and he mentioned that he agreed with this line of reasoning.
 However, Mr Wishart complained, in the Agenda item the reporter said that a source close to Mr Tamihere had offered tape recordings of two restaurant staff. The source had told him that the staff had said that there was no recorder visible on the table. Moreover, the reporter had said during the Agenda item that he had taped his own interview with a restaurant staff member which had confirmed this point. Mr Wishart wrote:
The inference viewers were invited to draw from [the reporter’s] “revelations” was that I was a liar and that I was using a hidden tape recorder and that I was acting unethically. This is defamatory of myself.
 Mr Wishart also stated that the reporter had not advised him the staff were alleging that no recorder was present. Accordingly, he had not been given an opportunity to respond.
 After the Agenda item, Mr Wishart said, he had spoken to the waiter of the restaurant who had served Mr Tamihere and him. The waiter had told him that Mr Tamihere, not a “source”, had talked to him and had not revealed that the conversation was being taped.
 Mr Wishart listed five specific complaints:
 Agenda had failed to appreciate the newsworthiness of the use by an MP of a secret recording.
 Expressing the opinion that the Agenda item was the work of a junior reporter with a political bias against Investigate, Mr Wishart sought an on-air apology.
 TVNZ assessed the complaint against Standards 4 and 5 of the Free-to-Air Television Code of Broadcasting Practice. They read:
Standard 4 Balance
In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
Standard 5 Accuracy
News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
 TVNZ noted that the Agenda item involved a studio interview with a reporter who was a media critic, plus extracts from the reporter’s earlier interview with Mr Wishart.
 TVNZ observed that Mr Wishart’s complaint appeared to assume that the Agenda interview had been an opportunity for Mr Wishart to defend himself against Mr Tamihere’s argument that there was no recording device visible at the time of the interview. However, TVNZ pointed out that the item, as any journalist would expect, presented both sides. As the statements about the key issue could not be reconciled, TVNZ said, both views were presented without drawing any conclusion. It wrote to Mr Wishart:
In the item, viewers heard you explain and saw you demonstrate how the tape recorder was put in front of Mr Tamihere. Viewers also heard that the programme had checked with a restaurant waiter who insisted that no recording device was placed on the table. The viewer was implicitly invited to reach his or her own conclusion – or to recognise that “we simply do not know”.
 The item did not suggest that you were lying; nor did it suggest that the waiter was lying. It simply indicated that the two accounts could not be reconciled.
 TVNZ also said that the reporter had not intended to speak to the restaurant staff as he believed that the restaurant owners would not allow it. However, on the basis that he had a responsibility to check out the information supplied by Mr Tamihere’s “source”, the Agenda reporter had spoken to one of the waiters. His request for an on-camera interview was declined. TVNZ continued:
There seemed no reason to go back to you. You had already clearly explained and demonstrated how you placed the recording device in front of Mr Tamihere.
 As for the complaint that the item did not use the extract from the Tamihere interview which the complainant provided, TVNZ explained that it was an editorial decision not to do so. It had also declined to use the material from Mr Tamihere’s “source”. Instead, Agenda used the interview with the complainant and information it had itself obtained.
 TVNZ declined to uphold the complaint that the item was unbalanced. It pointed out that it contained the complainant’s version of the way the interview was set up, including the demonstration as to how the recorder was positioned, and had also presented the contrary view advanced by the waiter. TVNZ said:
It did not reach a conclusion and did not accuse you of lying – either directly or by implication. Viewers were left with the correct impression that two accounts existed which could not be reconciled. After the studio interview with [the reporter], the item went on to include a fair and balanced discussion on the relationship between journalists and parliamentary politicians.
 Noting again that the item did not reach a conclusion as to who was right and who was wrong in a situation in which two people presented contradictory views, TVNZ found that the item was not inaccurate.
 Dissatisfied with TVNZ’s decision, Mr Wishart referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989. He contended that his complaint raised “important issues of journalistic ethics and fairness, and the use of concealed tapes”.
 The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 In his complaint to TVNZ, Mr Wishart alleged breaches of “journalistic and broadcasting ethics”. TVNZ advised him that it intended to assess the complaint under Standard 4 (balance) and Standard 5 (accuracy) of the Television Code. Mr Wishart did not disagree with this proposal and TVNZ applied these standards to the complaint. Nevertheless, when he referred the complaint to the Authority, Mr Wishart referred to “important issues of journalistic ethics and fairness, as well as the use of concealed tapes”.
 The Authority notes Mr Wishart’s reference to fairness but confines its deliberations to the balance and accuracy standards. It observes that Mr Wishart did not raise his concerns about fairness with TVNZ when asked to comment specifically on the relevant standards to be applied to his complaint. In these circumstances, where the complainant did not request the broadcaster to consider his complaint under the fairness standard, the Authority has no jurisdiction to consider that standard upon review of the broadcaster’s decision.
 Mr Wishart complained that the item was unbalanced, and said that he was not given an opportunity to respond to the comment from a restaurant staff member about the presence of a recording device.
 Standard 4 requires balance in items which discuss controversial issues of public importance. The item in question raised issues about the credibility of a serving Member of Parliament and former Cabinet Minister. This, in the view of the Authority, is a controversial issue requiring balance.
 The Authority finds that the item was sufficiently balanced in its treatment of the controversial issue. The item outlined the separate and differing accounts of Mr Wishart, Mr Tamihere, and the restaurant waiter regarding the dispute about the presence of a recording device during the interview. The reporter clearly stated that the waiter’s evidence contradicted not only Mr Wishart’s account, but also Mr Tamihere’s. The item offered no conclusion as to which of the three accounts should be preferred.
 The Authority considers that the programme fairly outlined the competing views of the relevant parties and allowed viewers to draw their own conclusion. Significant perspectives were discussed, and thus the requirement for balance was met.
 Also as part of his complaint, Mr Wishart referred to an extract from his interview with Mr Tamihere that he had made available to Agenda. This extract allegedly supported Mr Wishart’s contention that Mr Tamihere knew that their meeting was intended to be an interview. However, Mr Wishart complained, that extract was not referred to during the item.
 The Authority considers that the decision whether or not to use the supplied extract was a matter of editorial judgment. The fact that TVNZ chose not to use the extract does not affect the question of balance, given that Mr Wishart’s version of events was clearly communicated in the item. In any event, the Authority observes that inclusion of the extract would not have affected the question of balance, as the discussion was primarily about whether Mr Tamihere knew he was being recorded, rather than just interviewed.
 Mr Wishart also complained that Agenda had failed to appreciate the newsworthiness of Mr Tamihere allegedly secretly taping conversations with the restaurant waiters. The Authority observes that this allegation raises no issue of broadcasting standards.
 For the above reasons, the Authority considers that the item was sufficiently balanced.
 The Authority was unable to identify any inaccuracies in the item and notes that Mr Wishart’s complaint did not itself specify any such matters. The Authority agrees with TVNZ’s decision that no issue of inaccuracy arises.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
18 August 2005
The following correspondence was received and considered by the Authority when it determined this complaint: