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Prime Minister (Rt Hon Helen Clark) and 4 Others and TV3 Network Services Ltd - 2003-077–081

Members

  • P Cartwright (Chair)
  • R Bryant
  • J H McGregor
  • Tapu Misa

Complainants

  • Prime Minister (Rt Hon Helen Clark)
  • Chief Press Secretary (Mike Munro) in the Office of the Prime Minister, Wellington
  • Life Sciences Network Inc
  • David Coy of Hamilton
  • I B Owen of Wellington

Dated

7th August 2003

Number

2003-077–081

Programme

3 News Special

Channel/Station

TV3

Broadcaster

TV3 Network Services Ltd


Complaint
3 News Special interviews with Nicky Hager and Prime Minister about issues raised in Hager’s book "Seeds of Distrust" – complaints that implication in interview that the book was factually correct was unbalanced and partial – some facts inaccurate – different interview styles unfair – Authority made the following findings:

Standard 4 – issues were scientific and government accountability – science aspect – balanced – no uphold; government accountability – not balanced – uphold

Standard 5 – scientific facts in dispute – unable to determine; approach to interview with Prime Minister in comparison with the interview with Mr Hager neither impartial nor objective – uphold; statement that Prime Minister declined her earlier offer to do another interview not inaccurate – no uphold

Standard 6 – preparation of programme fair – no uphold; presentation of programme – unfair as Prime Minister not advised of source of allegations and the accuser was interviewed in an earlier section of the programme – uphold; conduct and style of interview not unfair – no uphold – submissions on orders (if any) sought

Orders
Broadcast of statement; contribution of $11,000 towards legal costs; payment of costs to the Crown of $14,000 as explained in para [58]

This headnote does not form part of the decision.


Introduction

[1] In Decision numbers 2003-055/061, the Authority determined a number of complaints in regard to a 3 News Special broadcast on TV3 between 7.00–7.30pm on 10 July 2002. The broadcast dealt with allegations, made in a book published on 10 July 2002, that the Government had been aware, in December 2000, of the distribution of genetically modified (GM) corn. Interviews with the book’s author and the Prime Minister were broadcast during the programme. The interview of the Prime Minister was recorded the day before the book was published and no mention of the book was made during the interview.

[2] Mr Mike Munro, the Chief Press Secretary in the Office of the Prime Minister, the Rt Hon Helen Clark, the Prime Minister, the Life Sciences Network Inc (LSN), Mr Yuri Wierda, Mr David Coy, Mr I B Owen and Ms Janet Rutherford each complained to TV3 about aspects of the broadcast. The complainants alleged, in particular, that the programme contained inaccuracies, was unbalanced and was unfair to the Prime Minister.

[3] TV3 declined to uphold any aspect of the complaints.

[4] Dissatisfied with TV3’s decisions, each of the complainants referred their complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

[5] In Decision Nos: 2003-055/061, the Authority gave the following summaries in relation to Standards 4, 5,and 6 of the Free-to-Air Television Code of Broadcasting Practice, under which the complaints had been assessed.

Decision

[6] Standard 6 provides:

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.

[7] In regard to Standard 6, the Authority considered separately the processes during the "preparation" and "presentation" of the broadcast, and declined to uphold the aspects of the complaints which alleged that the Prime Minister was dealt with unfairly during the preparation apropos the adequacy of TV3’s briefing of the Prime Minister before the interview. The Decision continued:

The Authority upholds the complaint that the fairness requirement in Standard 6 was breached on the grounds that the presentation of the interview was unfair because the Prime Minister was not advised of the source of the specific allegations. It was also unfair that the Prime Minister was not told that the person who advanced the allegations had presented his conclusions in the same programme as the interview with the Prime Minister, but before her. Accordingly, the Authority upholds aspects of the complaints which alleged a breach of Standard 6 from the Prime Minister and the Chief Press Secretary, the LSN, Mr Coy and Mr Owen.

In summary, in respect to other matters determined as issues of fairness, the Authority declines to uphold or declines to determine the aspects of the complaints which related to:

The alleged inadequacy of TV3’s briefing of the Prime Minister before the interview which included the omission by TV3 of any reference to Mr Hager’s forthcoming book "Seeds of Distrust" or to allegations in the book.

The interviewer’s challenge to the Prime Minister’s recollection of the events detailed in "Seeds of Distrust".

The conduct of the interview.

The time taken by TV3 to respond to the complaints from the Prime Minister and the Chief Press Secretary.

[8] Standard 4 reads:

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.

[9] In summarising its findings under Standard 4, the Authority recorded:

When determining issues of balance, the Authority notes that it is not necessary to decide the factual issues which are being debated. Rather, the balance requirement means that competing arguments must be advanced with sufficient purpose to enable a viewer to arrive at an informed and reasoned opinion.

In weighing the competing arguments as to whether balance was achieved during the period of current interest on this occasion, the Authority concludes that there were two elements in the programme complained about. The Authority also took into account the high impact of the presentation. The first element was scientific concerns about the possibility of contaminated seed, and the second focused on Government accountability and trustworthiness. As the Authority considers that viewers were left to reach their own conclusion in regard to scientific issues, the first element is not upheld. However, as the Authority is of the view that reasonable efforts were not made to present significant points of view on the issue of Government accountability and trustworthiness, it finds that the second element is upheld. Accordingly, the Authority concludes, Standard 4 was breached by the broadcast as significant viewpoints were not advanced during the period of current interest to the extent necessary to counter the high impact of the strong allegations which called into question the accountability and trustworthiness of the Labour Government raised by the publication of "Seeds of Distrust". This aspect of the complaint from Mr Owen which referred to Standard 4 is upheld.

[10] The Decision recorded that the contention that the 3 News Special breached Standard 5 of the Code was made by the Prime Minister and the Chief Press Secretary, the LSN, Mr Owen and Ms Rutherford. Standard 5 provides:

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.

[11] The Decision provided the following summary:

Putting "allegations as facts" to the Prime Minister during the interview was a principal focus of the complaints which alleged that the broadcast breached Standard 5. In response, TV3 contended, first, that the allegations were "opinion, analysis and comment" to which Standard 5 did not apply. Second, it acknowledged that the interviewer accepted the contents of "Seeds of Distrust" were factual as he had examined all the source material available to Mr Hager, the book’s author.

The Authority does not consider that it has the skills to determine the accuracy of the scientific issues raised in the book and discussed in the programme. It notes that these questions still remain in debate. As there is no readily available source to establish without question the accuracy of the allegations, the Authority declines to determine those aspects of the complaints.

While the requirement for "accuracy" might be a summary of the requirement of Standard 5, it also requires that news, current affairs, and other factual programmes "be impartial and objective at all times". The Authority concludes that the broadcast was not impartial and objective, and upholds that aspect of the LSN complaint, given the differential treatment apparent in the interviewer’s approach to Mr Hager and to the Prime Minister.

It also upholds the Prime Minister’s and the Chief Press Secretary’s complaints that the omission of any reference to the press conference given at 4.30pm on 10 July in the 3 News Special broadcast at 7.00pm that day breached the requirement in Standard 5 for impartiality and objectivity.

[12] Summarising its findings at the conclusion of the decision, the Authority determined:

For the reasons given the Authority upholds the complaints from the Prime Minister and the Chief Press Secretary, the Life Sciences Network Inc, Mr Coy and Mr Owen that the broadcast by TV3 Network Services Ltd of a 3 News Special at 7.00pm on 10 July 2002 breached Standard 6 of the Television Code of Broadcasting Practice.

It also upholds the complaint from Mr Owen that the same broadcast breached Standard 4.

It also upholds the complaints from the Prime Minister and the Chief Press Secretary, and the Life Sciences Network Inc. that the same broadcast breached Standard 5.

The Authority declines to determine or declines to uphold all the other aspects of the complaints made by the Prime Minister and the Chief Press Secretary, the Life Sciences Network Inc, Mr Wierda, Mr Coy, Mr Owen and Ms Rutherford.

[13] The Authority noted that having upheld a number of aspects of the complaints, it could make orders under sections 13 and 16 of the Broadcasting Act. It invited submissions from the parties.

Submissions

[14] In his submission, Mr Coy expressed the opinion that TV3 had made an "error of judgement, a mistake we are all prone to make from time to time", and that a penalty "at the lower end" would be appropriate. He suggested the broadcast of a public apology. He did not consider a financial penalty to be necessary.

[15] Mr Owen considered that the penalty should recognise that some of the complaints were not "politically motivated", and suggested payment of costs to a charity of his choice.

[16] The LSN argued for the broadcast of a statement by TV3 during 3 News which would be read by the presenter of the 3 News Special (John Campbell) at the completion of the first news segment of 3 News broadcast at 6.00pm. It suggested the wording of the proposed statement, which included an apology to all the complainants, and submitted that the broadcast of the apology should be promoted by TV3 with the same frequency as the programme complained about. Pointing to the impact of the broadcast on the general election campaign then underway, it wrote:

The LSN is concerned that the remedy should be of sufficient weight to make it very clear to the broadcaster, the journalist concerned and the public that the original programme was seriously in breach of the standards of ethical journalism which New Zealanders are entitled to expect.

[17] The Prime Minister and the Chief Press Secretary noted that the Authority had upheld their complaints that the broadcast breached Standards 5 and 6 of the Television Code. Moreover, breaches of those standards and Standard 4 had been upheld in response to the complaints from other complainants.

[18] The Prime Minister and the Chief Press Secretary (the complainants) referred to their earlier submission – when they had referred their complaints to the Authority – which had signalled the orders sought should the complaints be upheld. They reviewed the earlier submission in light of the Authority’s findings.

[19] The earlier submission sought the broadcast of an approved statement noting the errors and deficiencies in the programme complained about, and the complainants reiterated the submission that such a statement should be ordered. The statement, they wrote, should be drafted by the Authority and each complainant and TV3 should have the opportunity to comment. The statement, they added, should be read on-air either before or after the 6.00pm news and should be accompanied by the text on-screen.

[20] In regard to the earlier request for an apology, the complainants asserted, in view of TV3’s "complete unwillingness to recognise its breaches", that there was no prospect of TV3 presenting a genuine apology. They wrote:

It is a matter for the Authority to consider whether recommendation of an apology still has merit, or would be futile.

[21] There were a number of matters for consideration, the complainants wrote, in deciding whether to continue to seek an order refraining TV3 from broadcasting advertising material for a number of hours. On the one hand, they noted that while the Authority upheld the complaints that the broadcast breached Standards 4, 5 and 6, it could be argued that not all aspects were upheld and TV3 could contend that it was "partially successful" in its opposition to the referrals. On the other hand, the complainants made the following points:

a.  The breaches found were substantial, and if not strictly intentional arose from an
     intentional policy, which was found by the Authority to have occurred within
     upper-level editorial supervision within TV3;

b. Some actions of TV3 in the production of the broadcast lacked credibility. This
    included the failure to include matters from the 10 July news conference in either
    the prior news or the broadcast; the failure to disclose the source of the allegations
    (presented uncritically as facts) and the "astounding" failure to retain the field tapes
    of the Hager interview material;

c. The breaches occurred during an election period when there was (as the Authority has
    found) a higher obligation on the broadcaster;

d. TV3 did not operate an independent complaint process and treated its response to the
    initial complaint as a matter for advocacy of its position;

e. TV3 throughout delayed the referral process on many occasions, and obstructed the
    timely and effective operation of the process (in breach of the Act’s stated purpose
    and objectives of the process);

f.  TV3 has defiantly rejected the main findings of the Authority.

[22] Although conceding that the evaluation of the matter was of some complexity, the complainants submitted that the application for an order refraining the broadcaster from broadcasting advertising programmes for a number of hours was "not now pursued".

[23] Turning to the application for costs made originally, the complainants submitted that it was plain that costs should be awarded to them. Moreover, they argued that the actual costs which they had incurred in making the referral, should be ordered. TV3’s response to the complainant, it was submitted, had been "technical, legalistic, at times evasive, and confrontational" and, accordingly, it had been essential for the complainants to be legally represented. Although they had the support of the Labour Party, they said that the complaints were a personal and political matter. The actual costs incurred to the date of making submissions on orders were $16,250. The complainants submitted that costs in favour of the Crown should also be imposed, and concluded with regard to their costs:

… these costs are reasonable, and should be awarded in full against TV3. There are no disbursements.

[24] In its submission, TV3 summarised the remedies sought by each of the complainants at the time the complaints were made, and the aspects of each of the complaints upheld. Under the heading Principles it argued that the remedies set out in the Broadcasting Act focused on the principles of "Correction", "Information" and "Punishment". "Punishment", it added, had to be matched to the seriousness of the breach which had occurred.

[25] TV3 then dealt in detail with the aspects of the complaints under the headings fairness, balance and accuracy, analysing in each instance those aspects which had been upheld or not upheld.

[26] TV3 described as "novel" the findings that the broadcast breached the fairness standard as the Prime Minister was not told during the interview that her "accuser" was Mr Hager. Moreover, TV3 contended, it was not a serious breach in the circumstances, adding that the source was not concealed capriciously but because of an agreement with Mr Hager not to divulge his identity of the fact or the existence of his book. It submitted:

TV3 is not aware of any case in which the BSA has required a journalist to disclose its source to a party during the course of an interview. Protection of source is an important and jealously guarded tenet of journalist practice. It is true that shortly after the interview the source became very public but that does not change the basic concept of protection of source.

[27] TV3 concluded on fairness:

The broadcaster submits that a breach of this nature is:

Unique;

Technical – in that it had no adverse effect on the rights of the person being interviewed; and

Is therefore at the lower end of the scale of possible breaches of fairness for which no penalty should be imposed.

[28] In regard to balance, TV3 maintained that it had not had an opportunity to address the issue of government accountability and, accordingly, no penalty should be imposed for the breach of the balance requirement.

[29] Turning to accuracy, TV3 noted that the Authority, while ruling that the scientific issues had been canvassed in a balanced manner, had not been able to determine the accuracy of the facts presented in the programme. Nevertheless, TV3 added, despite this finding on accuracy, the Authority had found the programmed lacked impartiality and objectivity. It concluded:

Rather than looking at the totality of the material presented to the viewers on the issue as a whole the Authority has isolated two issues, which it says, demonstrates partiality of lack of objectivity but not apparently lack of balance

[30] TV3 maintained that the differential treatment of the Prime Minister and Mr Hager was one of "journalistic style" rather than substance. Mr Hager’s material, it said, had been thoroughly investigated. As for the absence of material from the Press Conference given by the Prime Minister and the Hon Pete Hodgson on the afternoon of 10 July, TV3 pointed out that it had been expecting, until 5.45pm, a second interview. It wrote:

TV3 submits that this is an editorial matter, the footage from the conference was included in the News bulletin not the Special because time was being kept for the second interview which did not take place.

[31] TV3 explained that after the advice at 5.45pm that the Prime Minister would not participate in a second interview, an editorial decision was made "in the heat of the moment" to fill the time held over in the Special with material from the pre-recorded interview. In these circumstances, TV3 maintained that no penalty should be imposed.

[32] TV3 stated:

TV3 took the view that Code compliance should be achieved over all relevant material screened – before and during the Special and in the period of current interest. Sincere efforts were made to ensure the viewer was provided with information about all aspects of the issue. A failure to include material from the press conference in the Special was, it is submitted, not material and did not result in a lack of impartiality or objectivity overall. When assessing penalty TV3 submits that the Authority should take account of the overall position rather than focus on one or two elements or the coverage which it has found did not meet the Code requirements.

[33] Applying the principles referred to in para [24], TV3 contended that no corrections were required as there were no errors of fact. In addressing the information principle, TV3 submitted:

The viewing public has been fully informed by the Authority and by media commentators of the decision made. No further statement should be required. When the Authority released its decision it issued its own press statement; news of the Decision was carried on both television networks. Since the decision was released there has been extensive print media commentary – by our count no less than 29 articles of mentions in the major centre daily newspapers and in many of the provincial papers.

[34] As for the punishment principle, TV3 submitted that the breaches were either unique or technical and did not warrant any "punitive element". Referring to the two occasions when the Authority had ordered a broadcaster to refrain from broadcasting advertising material for a set period, TV3 said that serious breaches had been found in those cases. That, it added, was not the case with these findings, and an order imposing punishment "would be out of all proportion".

[35] With regard to costs, TV3 contended that as the main thrust of the complaints from the Prime Minister and the Chief Press Secretary were not upheld, it would be inappropriate to award costs. It added:

These complaints – by a number of complainants – have involved a huge input of time and effort for TV3 personnel. TV3 has endeavoured to deal promptly and fairly with all of the complainants and their complaints. Give that Authority’s decision endorsed the main elements of the way in which the broadcast was prepared and presented costs should lie where they fall.

Submissions in Response

[36] The Prime Minister and the Chief Press Secretary responded to TV3’s submission by pointing out that the Authority had considered that the broadcast breached the standards relating to fairness, balance and accuracy, and TV3’s efforts to isolate the issues and assign levels of importance were speculative.

[37] On the issue of fairness, the complainants noted that TV3 was found to have breached the standard by not naming the "accuser". It was nonsense, they added, for TV3 to argue that it would be required to reveal its source if he had been named, adding that Mr Hager’s identity and actions were public knowledge by the time of the interview was broadcast. They stated:

Indeed, it must have been known (having filmed the books being printed) that it had enlisted in a political statement to promote Mr Hager’s book. TV3’s submission is untenable.

[38] In response to TV3’s contentions that the breaches were minor, they noted that they were "breaches in the heat of an election campaign". They disagreed with TV3’s claim that the information presented in the item was correct as "no such finding has been made by the Authority". That matter, they said, had not been correctly presented by TV3 or Mr Hager. The complainants stated that there was a need for a "clear, full, accurate and fair" statement of the Authority’s decision.

[39] Pointing out that they were not now seeking an advertising restriction, the complainants noted that costs were not a punishment, but were ordered to reflect the costs incurred by a complainant where it was necessary to obtain legal assistance to pursue a complaint. They advised that it had been necessary to engage legal counsel when they referred their complaints to the Authority, observing that TV3 had used experienced counsel at all times.

[40] The complainants questioned TV3’s understanding that the Labour Party had met the costs involved. They acknowledged the Party’s support, but pointed out that costs were their personal responsibility, citing a legal authority for this proposition.

[41] Finally, the complainants said that they had invited an apology, but were "not seeking an order for an apology in the event that TV3 refuses to provide one".

[42] In its submission in reply, TV3 referred to the complainants’ suggestion that the Authority prepare the statement for broadcast. Pointing out that it was normal practice for the broadcaster and the Authority to settle on the statement and its time of broadcast, TV3 argued that there was no reason for a departure from that practice. It added that this was not an instance where an apology was warranted given that some aspects of the complaint were upheld, and some were not upheld.

[43] While noting that a restraint on advertising was not now being pursued, TV3 disagreed with the complainants’ claims that it had been contemptuous of the Authority’s decision and obstructive about the process. It argued that it had dealt with the complaints "diligently", and had complied with all the required time periods. TV3 alleged that any particular cause for delay lay "squarely" with the complainants.

[44] In support of that comment, TV3 referred to the inadequacies of the original complaint which had led to the procedural steps, noting:

Had these complainants properly particularised their complaint in the first instance all of this would have been avoided. Further, it was these complainants who made the application for disclosure – leading to the process required to deal with their application.

[45] TV3 said that the submission from the Prime Minister and the Chief Press Secretary was wrong, first, when it was stated that the 3 News which preceded the 3 News Special did not include material from the press conference, and secondly, to describe its response to the Authority’s decision as "defiant". It added:

TV3 has taken considerable care to be accurate and measured in its coverage and comment on the Decision.

[46] TV3 rejected the complainants’ application for costs which was based on the contention that it had been "technical, legalistic, at times evasive and confrontational". The broadcaster reiterated that it had followed its usual processes which were designed to meet the requirements in the Broadcasting Act.

[47] TV3 also submitted that the complainants were wrong to describe the Authority’s findings as a "success". It did not measure decisions as success or failure, it said. Rather, the Authority had found some standards were adhered to, and some were not and, in that situation, TV3 contended, "costs should lie where they fall".

[48] TV3 stated that the above comments also applied to the LSN’s submission, and pointed out that the Authority did not have the power to award costs to a charity as Mr Owen sought.

Orders

[49] First it is necessary for the Authority to formalise a correction to paragraph [95] of Decision Nos: 2003-055/061. Under the third bullet point in that paragraph, the Authority noted that one of the remedies sought by the Prime Minister and the Chief Press Secretary when they referred their complaints to the Authority, was:

An order directing TV3 to refrain from broadcasting for a period of 12 hours.

[50] The complainants in fact sought:

An order directing TV3 to refrain from broadcasting advertising programmes for a period of 12 hours.

[51] The Authority regrets the error which was highlighted in some of the media coverage the Decision received when it was released.

[52] In light of its findings in Decision Nos: 2003-055/061, and taking into account the submissions made by all the parties, the Authority considers that the appropriate orders in this instance are the broadcast of a statement, payment of costs to the Crown, and a contribution towards the costs incurred by the Prime Minister and the Chief Press Secretary, both of whom were legally represented. It so orders.

[53] The Authority notes that a restriction on advertising is not now sought. It agrees with the parties that the imposition of such an order is not justified. As none of the parties, other than the LSN and Mr Coy, seek an apology, the Authority will not require that the broadcast statement include an apology.

[54] The Authority upheld aspects of the complaints under Standard 4, balance, Standard 5, accuracy, and Standard 6, fairness. It considers that the broadcast of a comprehensive statement which explains the aspects of the complaints upheld is appropriate. To adopt TV3’s wording, the Authority considers that the statement "should fairly reflect the findings made by the Authority and the fact that only aspects of the complainants’ complaints were upheld".

[55] The Authority notes that some of the media coverage of the substantive decision, quoting TV3 and Mr Hager, has not dealt adequately with aspects of the accuracy complaint which the Authority was unable to determine. Accordingly, the Authority will require the statement to include reference to the findings in paragraphs [377] and [378] of Decision No: 2003-055/061 that neither TV3’s Standards Committee, nor the Authority, were able to determine whether the seed was or was not contaminated, because of the lack of scientific expertise.

[56] The Authority agrees with TV3 that the process for the preparation and approval of the broadcast statement should follow the Authority’s standard procedure. Pursuant to that process, the broadcaster is required to prepare a draft statement which it submits to the Authority for approval. When the statement has been approved, it shall be broadcast on a day and at a time agreed to by the broadcaster and the Authority. It is also the Authority’s practice to advise complainants of the day and time of the broadcast.

[57] Under s.16 of the Broadcasting Act, the Authority may award costs to the Crown, and/or costs to a complainant when a complaint is upheld. Having regard to the submissions made on behalf of the Prime Minister and the Chief Press Secretary, the Authority considers that an order requiring costs to be paid to the Crown is justified and appropriate. The programme complained about, broadcast during a general election campaign, dealt with a highly controversial issue. That issue was dealt with, in part, in a way which contravened the standards relating to balance, fairness and accuracy.

[58] In assessing the level of costs to be paid to the Crown, the Authority has considered the complaints from the Prime Minister and the Chief Press Secretary as one. In these circumstances, it considers that four complaints have been upheld. The maximum sum which the Authority could impose for each complaint is $5,000. The Authority finds that the sum of $3,500 is the appropriate level of costs for each complaint. Accordingly, it orders payment of total costs to the Crown in the sum of $14,000.

[59] The Prime Minister and the Chief Press Secretary sought costs incurred for legal expenses amounting to $16,250. Taking into account that representation by counsel was not unreasonable given the nature of the complaints and, although some aspects of the complaints were not upheld, the Authority considers an order to pay the complainants costs in the sum of $11,000 is appropriate.

Bill of Rights

[60] The broadcaster and a number of the complainants noted that the broadcast took place during an election campaign where genetic modification was a major issue. The Authority accepts that one of the roles of a broadcaster, as part of the fourth estate, is to encourage democracy and that this is heightened during an election campaign. It accepts that "freedom of expression" is necessary to assist in the development of an informed community. The Authority also considers that the increased importance of the broadcaster’s role at that time is accompanied by increased responsibility and that the imposition of these orders is reasonable and demonstrably justified and gives effect to the intention of the Broadcasting Act, interpreted together with the Bill of Rights Act, for the reasons given in this determination.

[61] In reaching its decision the Authority records that it has considered whether the limits it has placed upon the broadcaster’s right to freedom of expression, as contained in s.14 of the New Zealand Bill of Rights Act 1990, are demonstrably justified as required by s.5 of the Bill of Rights. The Authority is satisfied that the imposition of these orders is reasonable and demonstrably justified and gives effect to the intention of the Broadcasting Act, interpreted together with the Bill of Rights Act, for the reasons given in this determination. In reaching this conclusion, the Authority has taken into account all the circumstances of its determination, including the nature of the complaints, and the manner in which the material was broadcast.

Orders

The Authority makes the following orders under s.13 and s.16 of the Broadcasting Act 1989:

1.  Pursuant to s.13(1)(a) of the Act, the Authority orders TV3 Network Services Ltd to publish a statement approved by the Authority. That statement shall:

be broadcast on TV3 on Wednesday 3 September 2003 (or such other date approved by the Authority) within the first segment of the 6.00pm edition of 3 News and before the link to the first commercial break;

be read by a presenter and appear in writing on the screen;

explain that TV3 has been ordered to make the statement as a result of the Broadcasting Standards Authority’s decision to uphold complaints about the 3 News Special broadcast on 10 July 2002;

clarify that the Authority, along with TV3’s Standards Committee, declined to determine the accuracy of the factual statements in "Seeds of Distrust"; and

summarise comprehensively the Authority’s Decision on the complaints.

2.  Pursuant to s.16(1) of the Act, the Authority orders TV3 Network Services Ltd to make a contribution in the sum of $11,000 towards the legal costs incurred by the Prime Minister and the Chief Press Secretary. The payment shall be made within one month of the date of this Decision.

3.  Pursuant to s.16(4) of the Act, the Authority orders TV3 Network Services Ltd to pay costs to the Crown in the amount of $3500 in relation to the complaints made by the Prime Minister and the Chief Press Secretary, the Life Sciences Network Inc, David Coy, and Ivan Owen, a total sum of $14,000, within one month of the date of this Decision.

These orders shall be enforceable by the Wellington District Court.

Signed for and on behalf of the Authority

 

Peter Cartwright
Chair
7 August 2003

Appendix

  1. The following correspondence was received and considered by the Authority in determining these orders:
  2. Prime Minister’s and Chief Press Secretary’s letter to the Authority in regard to paragraph [95] of Decision Nos 2003-055/061 – 4 July 2003
  3. Authority’s Letter of Correction of paragraph [95] to "The Dominion-Post" and "The Press" – 7 July 2003
  4. Authority’s advice of Letter of Correction to TV3 Network Service Ltd and the Prime Minister and the Chief Press Secretary – 7 July 2003
  5. David Coy’s Submission regarding Orders – 9 July 2003
  6. Association of New Zealand Advertisers Inc’s Submission – 11 July 2003
  7. I B Owen’s Submission regarding Orders – 12 July 2003
  8. TV3’s Letter regarding Process – 15 July 2003
  9. The Authority’s response to TV3 – 16 July 2003
  10. Prime Minister’s and Chief Press Secretary’s Submission regarding Orders – 22 July 2003
  11. TV3’s Submission regarding Orders – 22 July 2003
  12. Life Science’s Network Inc’s Submission regarding Orders – 22 July 2003
  13. Prime Minister’s and Chief Press Secretary’s Submission in response to TV3’s Submission – 23 July 2003
  14. TV3’s Submission in reply – 28 July 2003