Complaints under section 8(1)(a) of the Broadcasting Act 1989
Holmes – item on art piece commissioned for Venice Biennale at cost of $500,000 in public money – interview with Peter Biggs of Creative New Zealand – allegedly unfair to Mr Biggs and misleading/inaccurate
Standard 4 – not unbalanced – Mr Biggs was able to present his view – not upheld
Standard 5 – item did not suggest that braying toilet was the work to be exhibited – not misleading or inaccurate – not upheld
Standard 6 – Mr Biggs not treated unfairly – as a seasoned media commentator he was able to get his point across – not upheld
Standard 8 – not relevant – declined to determine
This headnote does not form part of the decision.
 An art piece commissioned for the Venice Biennale was the subject of an item and studio discussion on Holmes broadcast on TV One at 7.00pm on 14 July 2004. The item explained that $500,000 in public money had been allocated to fund the creation of a piece by an artist known as “et al”, whose most recent work was a toilet which brayed like a donkey. A live studio debate between the presenter (Paul Holmes), Peter Biggs of Creative New Zealand and John Gow, an Auckland art dealer, followed the item.
 Three complaints about the broadcast were referred to the Broadcasting Standards Authority.
Mr Page’s Complaint
 Mr Page complained that the broadcast led him to believe that the work which would be shown in Venice was the braying toilet. He also considered that the presenter was “rude and seemed to badger” Mr Biggs and did not allow him to answer the questions put to him.
Mrs Norris’s Complaint
 Mrs Norris complained that:
The interviewee, Mr Peter Biggs was repeatedly talked over, interrupted and verbally abused. At no point was he allowed the opportunity to explain the judges’ decision [about the selection of “et al” to represent New Zealand] nor give the public any reasons why this artist’s work is innovatory. An ideal opportunity to debate the matter was irretrievably lost.
 She considered that the presenter was “appallingly rude”, exposing his intolerance and prejudice, “total ignorance about the current art scene” and unwillingness to listen to a point of view other than his own. Mrs Norris contrasted his “angry approach” to Mr Biggs with what she called his “obsequious” discussion with Mr Gow.
 She concluded:
Mr Holmes drove the interview in such a fashion that he elicited equally bigoted responses from the still uninformed public, responses which he then gloatingly read out to support his one-sided stance.
Mr Lee’s Complaint
 Mr Lee complained that the presenter advanced the position that the expenditure on the art piece was “gross” with no understanding of:
 Mr Lee maintained that the presenter “regularly, rudely and aggressively interrupted” Mr Biggs and prevented him from explaining why the decision had been made. He also considered that the presenter had made “snide remarks about people unwilling or unable to appear before him”.
 TVNZ assessed each of the complaints against Standard 6 (fairness) and, in addition, considered the complaints of Mr Page and Mr Lee against Standard 5 (accuracy). Those standards, as set out in the Free-to-Air Television Code of Broadcasting Practice, read:
Standard 5News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
Standard 6In 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 did not uphold any of the complaints.
 In response to each of the complainants, it noted:
…the news media does have an important “watchdog” role, in challenging and questioning subjects of all kinds – but especially those involving the spending of public money. The devil’s advocacy approach, as it is called, tests (in the public interest) the arguments of those who are defending matters which have become issues of controversy…
In this case, the item probed the issue of whether the decision to spend half a million dollars of taxpayers’ money on sending an artist, identified only as et al, to represent New Zealand at a world famous exhibition, was a sound one. Not only was the money at issue, but the type of work et al produces as well, and viewers were able to see the “outhouse” she had constructed for a recent New Zealand exhibition.
 As to the fairness complaints, it said that the presenter’s comments were “vigorously countered by Peter Biggs, who defended the grant. It did not consider that Mr Biggs was treated unfairly, saying:
Although there were times when Paul Holmes interrupted him, those interruptions did not hinder Mr Biggs, an experienced television performer, in getting his message across.
 In the context of Standard 5, TVNZ responded to Mr Page and Mr Lee that there was nothing in the broadcast that was inaccurate:
The item made it clear that the toilet with the braying donkey was not the art piece which was to go to Venice. It was equally made clear that the nature of the art piece had not yet been decided, and would depend on what sort of premises or space the artist would be able to work in once she reached Venice.
 Dissatisfied with TVNZ’s responses, Mr Page, Mrs Norris and Mr Lee each referred their complaints to the Authority for investigation and review.
 In Mrs Norris’s referral, she said she had asked TVNZ (by email) to consider her complaint under Standard 4 (which requires that programmes are balanced in their treatment of controversial issues of public importance) and Standard 8, guideline 8(b) (which provides that broadcasters should not use any “subliminal perception” techniques), as well as Standard 6.
 Mrs Norris also reiterated her complaint that Mr Biggs was not treated fairly. She maintained that he had been prevented from finishing his explanation in defence of Creative New Zealand’s choice, and that as a result, viewers were left thinking that the item going to Venice would be “another toilet and donkey braying piece”. Mrs Norris also repeated her view that the presenter had been involved in:
a shout-down, a bigoted harangue and an appallingly rude display of the worst form of advocacy.
 In his referral to the Authority, Mr Lee did not accept that TVNZ could justify the presenter’s rudeness and aggressive style by describing him as taking a devil’s advocate position or as engaging in “vigorous debate”. He did not refer the accuracy part of his complaint. He also said that TVNZ had not responded to his complaint that the presenter had made “snide remarks” about people unwilling or unable to appear before him”.
 The broadcaster did not comment further on the complaints made by Mr Page.
 In response to Mrs Norris’s referral, TVNZ noted that it had not received the email which asked TVNZ to consider the complaint under Standards 4 and 8. However, it considered that Standard 4 was not breached as:
Paul Holmes (acting in the legitimate role as devil’s advocate”) put questions to Mr Biggs which were balanced by his answers. Contributing further to the balance was the more detached view offered by Mr Gow.
 In relation to Standard 8, TVNZ advised that it could not respond as it did not know “what Mrs Norris had in mind in citing [that standard]”.
 In response to Mr Lee, TVNZ said that the presenter’s comments about those who it had asked to appear was used to inform the public that efforts had been made to present balance in the item.
 Mrs Norris and Mr Lee provided final comments to the Authority.
 Mrs Norris reiterated her original complaint that the broadcast was unfair to Mr Biggs. She also expanded on her complaints relating to Standard 4 (balance) and Standard 8 (programme information).
 As to balance, she said that the interview was one-sided and left viewers with the impression that a work like the braying toilet would be representing New Zealand at the Venice Biennale. She also maintained that Mr Gow’s contribution did not provide balance, as it was “extracted in such a way as to appear to support the presenter’s views”.
 As to Standard 8 Mrs Norris maintained that its application was not inappropriate in the context of this interview.
 Mr Lee reiterated his concerns, which he considered had not been properly addressed by TVNZ.
 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 these complaints without a formal hearing.
 One of the complainants (Mrs Norris) considered that the broadcast breached Standard 4 (balance). The Authority does not agree. While it accepts that the issue under discussion was a controversial issue of public importance, in that it queried the allocation of half a million dollars of taxpayer money, it does not consider that the treatment of the issue was unbalanced. The presenter raised his concerns in a manner described by the broadcaster as a “devil’s advocate” approach, and which the Authority characterises as an approach that was challenging and aggressive. Despite this, Mr Biggs, who defended the decision, was able to articulate his position clearly and told viewers that:
 As Mr Biggs was able to counter the view advanced by the presenter, the Authority considers that the programme was sufficiently balanced. The Authority finds that Standard 4 was not breached.
 Mr Page complained that the programme was inaccurate, as the broadcast led viewers to believe that the work being sent to the Venice Biennale was a braying toilet. The Authority does not accept this was the case. In its view the item made it very clear on at least five separate occasions that the toilet was not the work to be exhibited. It was also made clear in the item that the work to be shown had not yet been created as it would be specially designed for the yet-to-be-allocated space for New Zealand’s exhibit at the Venice Biennale. The Authority does not consider that the item was inaccurate or misleading and it finds that Standard 5 was not breached.
 All three of the complainants considered that the item was unfair to Mr Biggs. The Authority notes that Mr Biggs is a seasoned media personality. As noted above in paragraph , Mr Biggs was able to present his view in a composed and informative fashion, despite aggressive questioning by the presenter. In these circumstances, the Authority finds that Standard 6 was not breached.
 Mrs Norris considered that the broadcast breached Standard 8, which requires broadcasters to ensure that programmes do not deceive or disadvantage viewers. Specifically, she referred to guideline 8(b) which relates to the use of “subliminal perception”. Standard 8 and guideline 8b are directed toward the use of technical trickery in broadcasts and they are not apposite to the broadcast complained about. Accordingly, the Authority declines to determine this aspect of the complaints.
For the above reasons the Authority does not uphold the complaints.
Signed for and on behalf of the Authority
4 November 2004
The following correspondence was received and considered by the Authority when it determined these complaints:
Paul Page's Complaint
Nan Norris’s Complaint
John Lee’s Complaint