Give It a Whirl – documentary – stories from rock'n'roll era in New Zealand – included comments about a 1960s music show C'mon – ‘apple incident' recalled and comments said to be inaccurate and unfair
Standard 5 – majority – evidence sufficient to conclude that incident did not occur – uphold – minority – anecdote not expected to be entirely accurate – no uphold
Standard 6 – evidence sufficient to rule that complainant treated unfairly – uphold
This headnote does not form part of the decision
 Give It a Whirl was a documentary series about the rock'n'roll era in New Zealand. An episode broadcast on TV One at 8.40pm on 2 June 2003 referred to C'mon – a televised national music show in the 1960s. X, former entertainer, recalled an incident on a C'mon production which involved him being so upset with Sir Howard Morrison's appearance on the show that he threw an apple at Sir Howard. X said that the producer of C'mon expressed his fury by swearing, and that as a result of the incident X was fired.
 Kevan Moore, producer of C'mon, complained to Television New Zealand Ltd, the broadcaster, that the aspect relating to C'mon was inaccurate, because the “apple incident” never occurred. Mr Moore also argued that he had been dealt with unfairly because he had never used the alleged language during his broadcasting career.
 In response, TVNZ argued that the sequence was X' personal account. Whether or not it was an accurate recollection, it was an anecdote from over thirty years ago that had been accurately reported. In its view, Mr Moore had not been dealt with unfairly. Accordingly, TVNZ declined to uphold the complaint.
 Dissatisfied with TVNZ's decision, Mr Moore referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority upholds the complaint that the item was unfair and a majority upholds the complaint that the item was inaccurate..
 The members of the Authority have viewed a video of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Give It a Whirl was a documentary series which examined the rock'n'roll era in New Zealand. It looked at the evolution of New Zealand's music scene, presenting a mix of interviews, archival news and music clips. The episode broadcast on TV One on 2 June 2003 at 8.40pm included reference to the role of the series C'mon – a televised music show. X, former entertainer, recalled an incident on C'mon involving Sir Howard Morrison.
 X reported that so incensed was he with Sir Howard Morrison's appearance on C'mon that he threw an apple at him, which in turn caused the producer to swear in fury and resulted in X being fired and banned from television for five years.
 Mr Moore, the then producer of C'mon, complained about that part of the programme which included X' anecdote about Sir Howard Morrison on C'mon . Mr Moore stated that the “apple incident” did not happen as the two performers had never been “booked on the same show”.
 Mr Moore also took exception to the aspect of X' story that related his purported reaction to the “apple incident”. He said that he had never sworn “at that time or any other time” during his “working life on radio or television.” The complainant noted that X' absence from television was not as a result of the alleged incident, but related to other events.
 Mr Moore expressed his concern that as Give It a Whirl was a documentary series, “a future generation will believe whatever is said there to be the truth.” He wrote:
I require an apology to be made for this misinformation; such an apology to be delivered at the beginning of an episode of this programme, by X on camera. Further, that the offending material be deleted from the master and any archival tape.
 In view of the matters raised in the complaint, TVNZ assessed it under Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice. The Standards read:
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.
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.
 TVNZ apologised to the complainant for the offence that the broadcast had caused him. As to the concern expressed by the complainant regarding X' comments becoming “part of the historical record”, TVNZ contended that the “history” that featured in the programme was “delivered by way of visuals with a factual voice-over commentary.” TVNZ continued:
Interspersed with this material were interviews with a large number of former (and in some cases ageing) musicians, who recounted anecdotes and memories from a period more than thirty years ago.
It was the opinion of the [complaints] committee that these interview extracts were transparently expressions of personal recollection by performers who had lived through a particularly vibrant era in the development of New Zealand music. They were not presented on air as expressions of factual accuracy, but as a reflection of how these former “stars” now remember that period of their lives.
 TVNZ contended that X “genuinely believed that this incident took place”, and that he was “accurately stating his recollection of an incident he remembers.” TVNZ could not conclude whether X' comments were accurate, and it had been unable to independently verify the story because “only one of the episodes of C'mon remains in the television archive”, it said.
 In relation to Standard 5, TVNZ noted that while Give It a Whirl was a factual programme, its obligations in the context were to present accurately the historical facts and report the recollections of those involved. TVNZ maintained that it could not independently check the accuracy of those thirty year old experiences but that it was not precluded from using the participants' recollections, “provided they were presented transparently as personal reminiscences.” TVNZ argued that the programme had done that, and presented the musicians memories “as they described them and without distortion”. Accordingly, TVNZ declined to uphold this aspect.
 Turning to Standard 6, TVNZ noted that the “focus of the programme was on the musicians who played during the period and their recall of the era.” It said that X' comments were “useful”, as they reflected the “tension between rock'n'roll artists and broadcasters”, at a time when television was relatively new and when “anxiety about the music's influence, especially among older citizens was rife.” TVNZ continued:
The [complaints] committee did not believe that you were reflected in a poor light. Other musicians were complimentary about your work, the role of C'mon as a major influence in promoting New Zealand music was acknowledged, and the voice-over also indicated that you had successfully struck a balance between what the headstrong musicians craved, and the restraints imposed by current considerations of programme standards.
 TVNZ declined to uphold the complaint.
 The complainant disagreed with TVNZ's decision and referred his complaint to the Authority.
 Mr Moore argued that the aspect of the programme complained about had been “badly researched and supervised.” The complainant said it was apparent that TVNZ had not attempted to verify X' statement. In Mr Moore's view, if the “apple incident” had occurred it would have made “national headlines at the time”.
 Mr Moore maintained that “inadequate research and editorial responsibility” was reflected by TVNZ's failure to question X as to why he had been banned from television. He reiterated that X' departure from the broadcasting industry had nothing to do with the alleged “apple incident”. Mr Moore wrote:
TVNZ's Complaints Committee's conclusion illustrates the well-known saying, “tell a lie often enough and it will become the truth”. They [TVNZ] have allowed a person to tell lies and then they say it's acceptable because it's sandwiched in between objective narration.
 Mr Moore noted that TVNZ had failed to address his complaint about the inappropriate language he was alleged to have used by X. He argued that such language at the time was regarded as unacceptable and would have resulted in disciplinary action. Mr Moore denied ever using such language and contended that if the incident had occurred it would have been an incident recalled by others prior to being aired for the first time on Give It a Whirl .
 TVNZ made three points in response. First, it emphasised that the nature and style of the programme was relevant in the assessment of X' comments. In TVNZ's view the item clearly presented musicians recounting their memories about the New Zealand music scene and reminiscing about “their experiences and the times in which they performed.”
 Second, the broadcaster disputed that there had been no attempt to verify X' statements. TVNZ advised that the producer had “heard the same story from two other sources.” Whether X' account of the incident was or was not “strictly accurate”, TVNZ contended that the “story has, rightly or wrongly, entered the folklore of the New Zealand rock'n'roll.”
 The third point concerned the issue of “inappropriate language”, which Mr Moore argued, TVNZ had failed to address. The broadcaster submitted that there were a number of people at TVNZ who had worked with Mr Moore and, that while it had been unable to verify the specific incident, Mr Moore had a “formidable reputation for expressing himself when the occasion demanded it.”
 Mr Moore dealt with each point in his response:
(i) Whereas he acknowledged that nuances changed over time, Mr Moore did not accept that an “outrageous lie” could be shrugged off as the faulty memory of an “aging rocker”.
(ii) Maintaining that a competent producer would have sought confirmation, possibly from Sir Howard Morrison, Mr Moore named two floor managers from C'mon who would be suitable witnesses. The apple story, he contended, was the “stuff of cartoons” and, without correction, the “sham” would be considered correct.
(iii) Mr Moore maintained that he could express his views without the use of “foul language”.
 Mr Moore reiterated the point that X was never part of a C'mon programme in which Sir Howard Morrison appeared.
 The Authority asked TVNZ if it was possible to confirm the facts of the incident with the people nominated by Mr Moore. TVNZ said it would endeavour to do so, and in the interim enclosed two articles from the periodical “Reel Groove” from June and July 2001. The latter article, it pointed out, included references to the apple-throwing incident which indicated that the story was in the public domain some two years before it was recounted on television. TVNZ contended:
We are anxious to stress again that Give It a Whirl accurately reflected the recollections of X, who was remembering things that happened decades earlier. Whenever television, or any other medium, broadcasts an interview its obligation is to report accurately what is said by the interviewee. It cannot be held responsible for the accuracy of what interview subjects may say (how could we ever interview a discoverer of a scientific breakthrough, or a politician about the motives for a law change?). In this case X was expressing his genuinely held opinion of what happened a long time ago.
 Dealing first in his response with the article from “Reel Groove”, Mr Moore pointed out that it referred to the show Happen Inn , not C'mon , and his response, as recorded in the article, was to say to X, without swearing, “You're fired. Get out. Get out”. Adding that the story was as “nonsensical” as the one told on Give It a Whirl , Mr Moore advised that Sir Howard Morrison had never appeared on Happen Inn . He had performed in the pilot episode of C'mon but, Mr Moore added, X had not been in that programme. Moreover, he wrote, there had been no reason to preclude X from appearing on any television programme until, later when he had been convicted of drug offences.
 Mr Moore attached a number of appendices which showed, he said, the shows on which X appeared, and some different shows on which Sir Howard Morrison appeared. Also included was a statement from Patricia Popperwell (nee Hodgson), a dancer and choreographer from both C'mon and Happen Inn, who did not recall the incident.
 Mr Moore also remarked that TVNZ had not produced the evidence requested by the Authority, observing that TVNZ now appeared to realise that X had lied and were hoping “this problem will simply disappear”. TVNZ, he argued, should have checked the veracity of the story and because it had not done so, it was now trying to “evade editorial responsibility”.
 A majority of the Authority accepts that the apple throwing incident was presented as a point of fact in the documentary programme. It disagrees with the broadcaster that X' account was “presented transparently as personal experiences” which viewers would have known were not necessarily accurate. The Authority notes that nothing in the commentary would have led a viewer to dismiss it as simply gossip or anecdote. Furthermore, as the story named both Sir Howard Morrison and the complainant, the Authority would have expected the broadcaster to confirm the account before it was broadcast. However, apparently that did not occur. In the absence of any such confirmation, the Authority accepts it has a responsibility at least to try to ascertain whether one account is sufficiently more credible than the other to allow a factual conclusion to be reached. Its conclusion involves weighing the evidence which has been advanced.
 A majority of the Authority is convinced that the apple incident, as recounted by X on Give It a Whirl , did not occur. In so finding, the majority also acknowledges that X may believe that his recollection was correct.
 In reaching its decision that the item was inaccurate, the majority considers that some of the detailed evidence advanced in support of that view is substantial. It notes first that X has elsewhere told different versions of the story in relation to both C'mon and Happen Inn. S econdly, it notes the material advanced by Mr Moore that X and Sir Howard Morrison never appeared on either C'Mon or Happen Inn at the same time. The Authority also takes into account that the events occurred more than 30 years ago and the time lapse could well have had some impact on the memories of what TVNZ described as “these former stars”.
 The Authority also notes that in some situations when it is required to rule on an accuracy complaint, it may decline to determine the matter given the conflicting evidence advanced. However, in the current circumstances, a majority of the Authority is persuaded by the evidence advanced by Mr Moore that the event recounted on Give It a Whirl did not occur and its presentation as fact amounted to a breach of accuracy.
 A minority (Diane Musgrave) declines to uphold the accuracy complaint. The documentary attempted to report accurately the stories and anecdotes associated with the rock and roll era. The series was subtitled New Zealand Rock ‘n' Roll Stories. While on the evidence presented it appears that X' recollection was faulty, his reminiscences were presented not as fact, but as personal anecdotes. Those anecdotes, she believes, were clearly distinguishable as personal comment and recollection and separate from the factual editorial line as presented through the narration, and would have been regarded as such by viewers.
 Having found by a majority the item to be inaccurate, the Authority concludes unanimously that it was unfair to Mr Moore. The Authority notes that the story ascribed attitudes and behaviour to Mr Moore which reflected adversely upon him. In its view, the broadcaster has a duty to ascertain the veracity of the story and its failure to do so on this occasion amounts to a breach of the requirement in Standard 6 for fairness
For the reasons above, the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of comments on Give It a Whirl on 2 June 2003 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice. A majority upholds the complaint that the broadcast also breached Standard 5.
 Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. The complaint has involved assessing varying accounts of an event from the 1960s and there is a difference in opinion as to the extent that the complaint should be upheld. The Authority considers that none of the orders which it can impose are appropriate to the circumstances. It unanimously declines to impose an order.
Signed for and on behalf of the Authority
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Kevan Moore's Complaint to Television New Zealand Ltd – 5 June 2003
2. TVNZ's Response to the Formal Complaint – 18 July 2003
3. Mr Moore's Referral to the Broadcasting Standards Authority – 1 August 2003
4. TVNZ's Response to the Authority – 15 August 2003
5. Mr Moore's Final Comment – 31 August 2003
6. TVNZ's Response to the Final Comment – 5 September 2003
7. Mr Moore's Further Submission in Response to TVNZ's Letter – 17 September 2003.
8. TVNZ's Response to the Authority's Request for Further Information – 6 October 2003
9. Mr Moore's Further Response – 23 November 2003