Complaint under section 8(1)(a) of the Broadcasting Act 1989
Sunday – item examined crash of Silkair 737 in which all passengers and crew were killed – official investigation said cause unknown – decision widely criticised – view expressed by father of co-pilot that pilot deliberately crashed the plane – other comments in support – father’s theory examined fully – item advised that Indonesian Government reopened investigation and then decided not to proceed – allegedly unbalanced
Standard 4 (balance) – item omitted credible alternative theory – upheld
This headnote does not form part of the decision.
 The crash of a Silkair 737 in Indonesia in 1998 was reviewed from the perspective of the father (Derek Ward) of the New Zealand co-pilot, who died in the crash, in an item broadcast on Sunday on TV One at 7.30pm on 20 June 2004. Mr Ward contended that the crash was caused by the deliberate action of the pilot. The initial Indonesian investigation was unable to determine a cause. A number of experts were interviewed who agreed that the official investigation was unsatisfactory and supported Mr Ward’s conclusion. The item advised that the Indonesian Government intended to reopen the investigation. However, the item concluded by reporting that the investigation would not be reopened. Mr Ward expressed the view that Singapore Airlines, as the owners of Silkair, did not want the truth revealed.
 Ong Su-Wuen complained to Television New Zealand Limited, the broadcaster, that the item was unbalanced in that it did not accept that there was any other cause for the crash except that the pilot deliberately crashed the plane.
 Mr Ong raised the possibility of a mechanical cause, referring to some other aircraft crashes. He also noted that Boeing which was being sued by some families of people who had died in the Silkair crash, had initially alleged pilot error in its defence of the legal action. However, that defence now appeared to have been dropped by Boeing.
 In view of the matters raised, TVNZ assessed the complaint under Standard 4 of the Free-to-Air Television Code of Broadcasting Practice which reads:
Standard 4 BalanceIn 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.
 TVNZ contended that it was appropriate for Sunday to link the visit of Mr and Mrs Ward to Indonesia with “a careful examination” of Mr Ward’s strongly-held views. Mr Ward’s views, it added, were endorsed by “significant figures” in the aviation industry. Further, to respond to one of the main criticisms of Mr Ward’s theory which was to ask why had the aircraft not stabilised itself during the dive, the item used a flight simulator. The item had also revealed information about the pilot’s financial problems.
 Turning to Standard 4, TVNZ emphasised the requirement for significant points of view, to be presented “within the period of current interest”. That period, it maintained, had been running for six years and was on-going, and various aspects of the story had been broadcast over the years.
 TVNZ argued that the item, which unambiguously confined itself to examining one theory, was not in breach of standard 4. It had demonstrated that Mr Ward’s views were worthy of consideration. TVNZ also noted that shortly after the broadcast an American court had awarded damages to some families of passengers on the basis that the plane’s rudder control system caused the accident. It added:
And so the information in circulation accumulates in achieving over time the balance envisaged in the standard.
 As he was dissatisfied with TVNZs decision, Mr Ong referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989. He rejected TVNZ’s arguments that it was acceptable to ignore alternative crash theories, and that a subsequent news item assisted in achieving balance.
 Noting that TVNZ advised that it had reported Mr Ward’s view, Mr Ong contended that it was not possible to have an informed discussion about Mr Ward’s views without mentioning other possible causes of the crash. It was, he added, “irresponsible and negligent” not to mention other possible causes.
 As for the later news item, Mr Ong speculated that it would have been broadcast some 20 days after the Sunday item, and he wondered whether the viewers would have understood the connection.
 Questioning whether the period of current interest could last six years, Mr Ong wrote:
Intentionally or otherwise, the Sunday programme gave the impression that pilot suicide is the only explanation for the crash. This is grossly unfair to the family of the pilot and to Silkair as there is at least one other equally plausible explanation for the crash.
 TVNZ had little to add other than to emphasise again that the item was built around the first and only visit by Mr Ward to the memorial at the crash site. The item, it submitted, did not purport to be an examination of all the theories surrounding the Silkair crash.
 Mr Ong reiterated his principle contention:
That TVNZ’s failure to mention AT ALL credible alternative theories WITHIN the one programme constitutes a lack of balance.
 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.
 Standard 4 (balance) requires that when a programme deals with a controversial issue of public importance, broadcasters must present significant points of view either in the same programme or in other programmes within the period of current interest.
 In the Authority’s opinion, the programme complained about on this occasion dealt with such a controversial issue. It dealt with the crash of an aeroplane which killed all the passengers. Moreover, it is a crash for which an official cause has not been given.
 The item on Sunday examined a theory about an air crash in Indonesia, put forward by the father of the dead New Zealand co-pilot, that murder-suicide on the pilot’s part was the cause of the crash. Experts who shared Mr Ward’s view were interviewed, and a demonstration as to how it could have occurred took place in a flight simulator hired by Sunday for the occasion. Questions were raised about the pilot’s suitability as a pilot of a civilian aircraft, and his apparent financial difficulties shortly before the crash. The initial ruling from the air accident inspector in Indonesia was “cause – unable to determine”, which was questioned by Mr Ward and the experts (including people involved in the earlier investigation). It was reported that the investigation was about to be reopened but, at the programme’s end, viewers were advised that it would not now be reviewed.
 The item focused on the dead pilot’s apparent suicide. While there were questions raised, albeit fleetingly, about the suicide theory, the item did not acknowledge that there was any other theory.
 Mr Ong maintained that the item was unbalanced as TVNZ had not mentioned any credible alternative theory. There was such a theory, he advised, and he referred to a court action being taken in the United States against Boeing alleging a mechanical cause for the accident.
 TVNZ later acknowledged that, shortly after the broadcast, an American court had awarded substantial damages to the family of another New Zealander on the flight on the basis that failure of the plane’s rudder control system caused the accident. Nevertheless, TVNZ contended that an item which “deliberately and unambiguously” was confined to an examination of one specific crash theory was not in breach of the balance requirement in Standard 4.
 The Authority does not accept TVNZ’s argument. While the mechanical malfunction and the pilot suicide theories might have been incompatible, the malfunction theory was obviously of sufficient validity for a court to accept it. The Authority does not question the broadcaster’s right to examine thoroughly one theory. However, it considers that the alternative malfunction theory held a degree of credibility and significance such that it should have been mentioned in the item. Moreover, the Authority does not accept TVNZ’s other argument that the later publication of the American court’s decision (not apparently broadcast by TVNZ) was relevant to achieving balance “over time”. Accordingly, the Authority upholds the complaint that the item, through the omission of that matter, was unbalanced.
 For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and has taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.
For the above reasons the Authority upholds the complaint.
 Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. On this occasion, the Authority does not intend to impose an order as it considers that the breach was not of sufficient seriousness to justify such an action.
Signed for and on behalf of the Authority
4 November 2004
The following correspondence was received and considered by the Authority when it determined this complaint: