BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
3 News Special – interview with Prime Minister – canvassed allegations in "Seeds of Distrust" by Nicky Hager published that day – claimed that Government was aware of accidental distribution of GM contaminated seeds – unfair and unbalanced – ambush – disclosure applications from complainants and broadcaster.

Findings
Disclosure Application Order made pursuant to s.12 against broadcaster.

Orders
(i) Chronology
(ii) Field tapes
(iii) Affidavits relating to confidentiality agreement
(iv) number and confirmation of person to whom source material returned to

This headnote does not form part of the decision.

INTERLOCUTORY DECISION

The Background

[1] Detailed claims from the book "Seeds of Destruction", written by Nicky Hager and published that day, were put to the Prime Minister by interviewer John Campbell during a 3 News Special broadcast at 7.00pm on 10 July 2002. The interview had been recorded the previous day (9 July). The book, which was not mentioned during the interview, alleged that the Government was aware of the accidental distribution of GM contaminated seeds and had allowed the seeds to be grown, harvested and processed.

[2] In his own right and on behalf of the Prime Minister, Mike Munro, the Prime Minister’s Chief Press Secretary, complained to TV3 Network Services Ltd, the broadcaster. When TV3 declined to uphold the complaints, the complainants referred their complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989. They also sought disclosure of a range of documents.

[3] The Authority sought and obtained from the complainants comprehensive written submissions in which argument was advanced as to why the materials, for which disclosure was requested, were relevant to the referral of the complaints. The submissions included a schedule of the documents sought.

The Broadcaster’s Response

[4] The Authority then sought TV3’s submission on the complainants’ application. In its submission TV3 argued that the material had to be limited to the relevant issues. Much of the material sought was irrelevant, it continued, given the unjustified increase in the scope of the referral when compared to the limited nature of the original formal complaints.

The Authority’s Finding on Scope of Referral

[5] In an Interlocutory Decision (No: 2002-157/158, dated 7 October 2002) dealing with the scope of the referral, the Authority ruled that all the issues raised in the referral (subject to some restrictions) were appropriately referred to the Authority. Questions then arose as to the process to be followed.

The Authority’s Finding on Process

[6] In an Interlocutory Decision (No 2002-180/181, dated 7 November 2002) ruling on the processes to be followed at that time, the Authority accepted TV3’s undertaking to respond to the complainants on the Standard 5 (accuracy) aspects of the complaints within 20 working days. The decision also required to respond to the complainant’s disclosure application within the same time period.

Disclosure – Application by Complainants

[7] As part of their referral, the complainants wrote:

The complainants seek orders from the BSA for the delivery up and disclosure of all documentation relating to this alleged arrangement for "confidentiality" relied on by TV3. Such documents would include all written communications relating to the provision of the copy of the book, all supporting documentation or other written material received with it, all communications from TV3 accepting such alleged conditions, and all material, including the recorded video material, relating to the preparation for the interview. If (as appears from the content of transmitted programme to be the case) the transmitted material showing Mr Hager was recorded before the interview with the Prime Minister, orders are sought from the BSA for the delivery up and disclosure of the whole of that recorded material, as this information formed the undisclosed basis for the interview with the Prime Minister.

[8] The Authority sought and obtained from the complainants comprehensive written submissions in which argument was advanced as to why the materials, in respect of which disclosure was requested, were relevant to the referral of their complaints. The submissions included a segment of documents sought.

Response by Broadcaster

[9] TV3 divided numbered the material sought into 19 items and the items into categories "Irrelevant" and "Relevant".

[10] Twelve of the nineteen sections were listed as "Irrelevant" as TV3 argued, the material was not relevant to the complainants’ original formal complaint.

[11] Of the remaining seven, TV3 said two sought the full recording of the interview, a VHS tape of the full interview was available. One item was the book "Seeds of Distrust", which the broadcaster considered was unnecessary to supply.

[12] The final four sought items related to the confidentiality agreement under which TV3 was provided with a copy of the book before publication. The agreement had been referred to by TV3 in its response to the complainants as the reason why the Prime Minister was not informed of the book and its contents before the interview was recorded on 9 July.

[13] TV3 advised:

There is no written material either to or from the broadcaster recording the terms upon which the advance copy of the Hager book was made available to TV3.

[14] TV3 sought disclosure of all notes and other records relating to the following issues:

Arrangements for or discussion of the interview recorded on 9 July 2002;

Arrangements for or discussion of the proposed "second" interview on 10 July 2002;

All notes or other documents obtained by or on behalf of the Prime Minister as part of her preparation for the interview recorded on 9 July 2002;

All notes or other documents obtained by or on behalf of the Prime Minister after the recording of the interview on 9 July and before the press conference held at the Sheraton on 10 July 2002.

[15] Interlocutory Decision 2002-157/158 (7-10-2002), referred to above, dealt with TV3’s argument about irrelevancy and ruled that the material sought was relevant.

[16] In its detailed response to the complainants’ application disclosure dealing with the twelve matters earlier dismissed as irrelevant, TV3 stated that ten of the twelve matters sought disclosure of primary source material used by the interviewer (John Campbell) in his research. It wrote:

Prior to this application for disclosure orders by the complainant, Mr Campbell returned all primary material to its source.

[17] Disclosure of the material held by the interviewer during the interviews was sought, and TV3 reported that the interviewer was unable to recall exactly what documents he had been holding during the pre-recorded interview on the 9^th or during the live broadcast on the 10^th. Most of that material, it added, would have been destroyed.

[18] The final matters sought, the complainants wrote, were:

Documents sought are the records which identify the true date and context of each segment; together with the full interview tape in respect of Hager and the Prime Minister.

[19] In response, TV3 said that it had never claimed that the broadcast was "made from scratch" on 10 July 2002, and wrote:

The broadcaster submits that no order should be made in respect of these documents for the following reasons:

The broadcaster has already supplied to the Authority a "field" tape of the interview with the Prime Minister filmed on 9 July 2002;

The field footage of the interview with the Prime Minister is the only field footage which could conceivably be relevant to the Authority when it determines the issues raised by the complaint.

[20] TV3 also addressed aspects of its disclosure application for material held by the complainants. It denied that the application was a "fishing expedition", as the complainants argued, and contended that the documents would assist the Authority in determining the arrangements for the initial interview and the planned second interview, and into the briefings the Prime Minister had received.

The Complainants’ Response

[21] In response to TV3’s comments that details and the context of each segment and the field tape of the Hager interview were unnecessary, the complainants argued that the Authority needed to know "when each earlier segment was created" to assess whether the broadcast on 10 July was an accurate and true statement of the news story on the day.

[22] The complainants acknowledged that there was little likelihood of an affective order in regard to the material which had been returned to source.

[23] In regard to the material relating to the confidentiality agreement, the complainants agreed with the broadcaster that such an agreement need not be in writing. They maintained that the original correspondence suggested that there was in fact a written agreement. They now argued:

For the purposes of production of documents to the Authority, this can be dealt with by requiring TV3 to produce any documents it relies on. If there are none, then the existence of any agreement is a matter yet to be demonstrated. If it is ever shown to exist, and its alleged terms proven, then the issue as to whether that imposed on Mr Campbell the obligations which he claimed to exist can then be examined.

[24] As for the broadcaster’s disclosure application, the complainants pointed out that they, unlike TV3, had not sought the other party’s "internal working documents". They suggested that if the Authority sought such documents from the complainants, then it could well find similar documents from the broadcaster to be of equal value. The broadcaster’s application, the complainants said, was a "fishing expedition".

The Authority’s Determination

[25] Section 12 of the Broadcasting Act 1989 allows the Authority to use certain provisions in the Commissions of Inquiry Act 1908. Section 4C(1)(b) of the Commissions of Inquiry Act provides that a Commission may:

Require any person to produce for examination any papers, documents, records, or things in that person’s control, and to allow copies of or extracts from such papers, documents, or records to be made.

[26] Section 4C(3) of the Act states:

For the purposes of the inquiry the Commission may of its own motion, or on application, order that any information or particulars, or a copy of the whole or any part of any paper, document, or record, furnished or produced to it be supplied to any person appearing before the Commission, and in the order impose such terms and conditions as it thinks fit in respect of such supply and of the use that is to be made of the information, particulars, or copy.

[27] Both the complainants and the broadcaster have asked the Authority to obtain designated material which, it is argued, will assist the Authority in the determination of the complaint.

[28] The Authority has the power to require the production of that material, and, in its discretion, it may give directions as to whether it should be made available to other parties, and if so, on what terms. Given the submissions made by the parties, the Authority concludes that it is appropriate for these powers to be exercised in the present case to the following extend to assist in the determination of the complaints from the Prime Minister and Mr Munro.

[29] In making the following Orders the Authority points out that they are made without prejudice to any other Order the Authority may later made in looking at these or any of the other complaints referred to it arising out of the same programme.

Orders

Pursuant to s.12 of the Broadcasting Act 1989 and s.4c of the Commissions of Inquiry Act 1908, the Authority orders TV3 Network Services Ltd to make available:

A chronology of events of the filming of the segments which comprised the 3 News Special broadcast on TV3 on 10 July 2002 which records when each segment was created.

The full interview tape in respect of Nicky Hager.

The full interview tape in respect of the Prime Minister.

An affidavit from the parties to the confidentiality agreement in regard to the making available to TV3 an advance copy of the book by Nicky Hager which sets out the terms of that agreement.

The Authority also orders TV3 Network Services Ltd to confirm that the primary material which has been returned to its source (noted in paragraph 22 (I think Michael above) is one source, and that source is Nicky Hager.

The material is to be lodged with the Authority by 5.00pm Wednesday 15 January 2003.

[30] The Authority also seeks a submission by the same date as to whether the material should be released to the complainants and if so, on what terms.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
17 December 2002