BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1B)(b)(i) of the Broadcasting Act 1989
Q + A – host interviewed Helen Kelly from the Council of Trade Unions and John Barnett from South Pacific Pictures about controversy surrounding production of the film The Hobbit in New Zealand – host’s approach towards Ms Kelly allegedly in breach of standards relating to good taste and decency, controversial issues, accuracy, fairness and discrimination and denigration

Findings
Standard 6 (fairness) – host’s approach aggressive but did not extend to personal attack against Ms Kelly – Ms Kelly should have expected to be interviewed robustly about The Hobbit dispute – not treated unfairly – not upheld

Standard 4 (controversial issues – viewpoints) – item discussed a controversial issue of public importance – Ms Kelly given adequate opportunity to present the union’s viewpoint – significant perspectives on the topic presented within the period of current interest – not upheld  

Standard 1 (good taste and decency) – standard not relevant to complaint – not upheld

Standard 7 (discrimination and denigration) – Ms Kelly not a section of the community to which the standard applies – not upheld

This headnote does not form part of the decision. 

Broadcast

[1]   An episode of Q + A, broadcast on TV One at 9am on Sunday 24 October 2010, featured an interview with Helen Kelly, President of the Council of Trade Unions (CTU), and John Barnett, the managing director of South Pacific Pictures. The interview focused on controversy surrounding production of the film The Hobbit in New Zealand. The host, Paul Holmes, questioned the interviewees about a dispute between actors’ unions and film producers with regard to standardising performers’ employment contracts and the potential this had to move film production offshore. At the start of the programme, the host reported that New Zealand Actors’ Equity had lifted a boycott on actors working on the movie.

[2]   The host introduced the interview as follows:

What on earth is going on with The Hobbit? Warner Bros. representatives arrive this week at the Prime Minister’s offer to meet with them in the hope of keeping the films [in New Zealand] ... Sir Peter Jackson [the producer] is blaming the unions, he says the international ban put on the movie forced Warners to have a look off-shore. The unions say [this would not have happened] if Sir Peter had sat down with them [and negotiated actors’ contractual terms and conditions] in the first place.  

[3]   During the interview, Ms Kelly asserted that the dispute had now been settled, while Mr Barnett disputed this. The host interrupted Ms Kelly on a number of occasions, and made the following statements:

• What we’ve seen after last week with your handling of things is a complete failure for the union movement. That’s so, isn’t it?
• With the greatest respect Ms Kelly, I think you might be fantasising. The general public impression is that the union is in full retreat.
• Why don’t you tell me what the agreement is, instead of preaching?
• Excuse me, Helen, the impression I’ve got is that Peter Jackson actually called you clueless and told you to go home. This doesn’t sound to me like you’ve got any great breakthrough in agreeing.
• I think the impression people have, Helen, is that you’re well out of your depth. When Jackson calls you clueless and tells you to go home – this is a New Zealand-produced genius, the like of which we’ll never see again.
• What do you know about show business? What do you know about the film industry? What do you know about international studios? What do you know about international actors’ unions?
• Can I suggest to you Helen that most New Zealanders this week are disgusted by Actors’ Equity this week and by the union movement this week, and they feel that the actors have damaged the country.

Complaints

[4]   Pat Bolster and Ann Latimer made formal complaints to Television New Zealand Ltd, the broadcaster, alleging that the item breached broadcasting standards.

[5]   Pat Bolster complained that the broadcast breached standards relating to good taste and decency, controversial issues, fairness and discrimination and denigration. In the complainant’s view, the host’s approach during both the introduction and discussion was “patently unreasonable” and “gratuitously insulting”. Mr Holmes “was so biased ... that the opportunity for a presentation of the union viewpoint was excessively constrained”, they argued. In addition, they considered that Ms Kelly was treated unfairly, and was denigrated “in the extreme”. In contrast, Mr Barnett was “given such a free-ride, that the programme came across as two against one, with a pit-bull ‘interviewer’ in the lead”, they said. The complainant argued that the host’s repeated questioning of Ms Kelly, “What do you know about...?”, followed by his statement, “You’re clueless”, did not respect Ms Kelly’s right  to express her opinion. Further, they said, it was unfair to tell Ms Kelly that she was “fantasising” and to interrupt her before she had a chance to respond. 

[6]   Ms Latimer argued that the broadcast breached standards relating to controversial issues, accuracy, fairness and discrimination and denigration. She said that the host “effectively accused Helen Kelly of being to blame for The Hobbit saga”, was “rude”, “bullied” her, and accused her of lying. Ms Latimer concluded by stating that the host’s “lack of respect, and his refusal to give certain interviewees a fair go” was unacceptable.

Standards

[7]   Standards 1, 4, 6 and 7 of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Standard 7 Discrimination and Denigration

Broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

Broadcaster’s Response to the Complainants

[8]   TVNZ said that Q +A was an opinion-based programme which dealt with political issues that frequently sparked strong debate among participants on the show. The broadcaster considered that the controversy surrounding production of The Hobbit in New Zealand was a “significant issue” that not had been “formally or publicly resolved”, and was therefore a valid topic for debate. The participants on the show were given a sufficient opportunity to express their views and perspectives on the controversy, it argued, and Ms Kelly stated her main points throughout the item. The broadcaster said that while Mr Holmes was “passionate about the issue” and was “forceful in his questioning”, it did not consider that his “occasional intensity” breached broadcasting standards. It said that the content of the interview was focused on “opinions and commentary already widely reported elsewhere, and in the context of a political interview with an experienced union representative”. It noted that Peter Jackson’s comment that Ms Kelly was “clueless” had been widely reported in other media, and argued that the host was simply providing Ms Kelly with an opportunity to address it in a public forum.

[9]   The broadcaster stated that to constitute a breach of Standard 1, the broadcast material must be unacceptable in the context in which it was shown, including the time of broadcast, the programme’s classification, the target audience, and the use of warnings. TVNZ said that Ms Kelly was “confident and familiar” with the media and had been informed of the likely areas of discussion before the interview. The broadcaster did not consider that the interview would have offended or distressed a significant number of viewers and it declined to uphold the complaints under Standard 1.

[10]   With regard to Standard 4, the broadcaster said that the Authority had previously defined a controversial issue as one which had “topical currency and excited conflicting opinion, or about which there has been ongoing public debate.¹ It said that an issue of public importance had been defined as something that would have a “significant potential impact on, or be of concern to, members of the New Zealand public”.² TVNZ agreed that industrial action surrounding The Hobbit film was such an issue, but argued that the interview provided “ample opportunity” for Ms Kelly and Mr Barnett to present their perspectives. It noted that a “stopwatch approach” could not be applied to achieve balance, and considered that items previously broadcast on Close Up and One News had contributed significant viewpoints on the issue, as had other media within the period of current interest. For these reasons, TVNZ found that appropriate viewpoints had been sought and presented, and it therefore declined to uphold the Standard 4 complaints.

[11]   TVNZ reiterated that Q + A was an opinion-based programme, and not “news” to which the accuracy standard applied. In any event, it said that Mr Holmes did not blame Ms Kelly for The Hobbit “saga”, as alleged by the complainant. Rather, it said, the host simply questioned Ms Kelly and gave her a sufficient opportunity to respond. The broadcaster said that, while at times Mr Holmes’ questioning was robust, the media had a duty to ask challenging questions on issues of public importance. It considered the host was well-researched on the topic, and said that it could not identify any material error of fact. Accordingly, TVNZ declined to uphold Ms Latimer’s accuracy complaint.

[12]   urning to Standard 6, the broadcaster reiterated that Ms Kelly was “confident and familiar” with the media. TVNZ considered that Ms Kelly handled the interview “adeptly” and responded to each of the points raised. The broadcaster stated:

In her position as spokesperson of the Council of Trade Unions, Ms Kelly would be well versed in being the subject of robust media interviews. The very nature of her role means she would be routinely faced with people who disagree with her, and is practised in dealing with heated debate. Throughout the interview, Ms Kelly came across as principled and composed and succinctly communicated the points she wished to make.

[13]   In the broadcaster’s view, Ms Kelly was treated fairly on the programme and it declined to uphold the Standard 6 complaints.

[14]   TVNZ noted that the Authority had consistently defined denigration as “blackening the reputation of a class of people”. It also stated that, in light of the right to freedom of expression contained in section 14 of the New Zealand Bill of Rights Act 1990, a high threshold had to be crossed before a breach of Standard 7 could be found. The broadcaster argued that Ms Kelly was not a “group” to whom the standard applied. In any event, it did not consider that the content of the interview reached the necessary level of invective to be considered denigrating of Ms Kelly. It reiterated its view that that she was well versed in dealing with the media, and said that on such a contentious issue she would expect to be questioned robustly. Accordingly, the broadcaster declined to uphold the Standard 7 complaints.

Referrals to the Authority

[15]   Dissatisfied with the broadcaster’s response, the complainants referred their complaints to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[16]   Pat Bolster argued that a significant number of people would have been offended by the host’s approach on the programme, which they maintained was unreasonable and provided insufficient opportunity for Ms Kelly to present the union viewpoint. In the complainant’s view,  the host’s “sustained language” and tone went well beyond the level of necessary invective to amount to denigration.

[17]   Ms Latimer maintained that Standards 6 (fairness) and 7 (discrimination and denigration) had been breached. She argued that the item lacked a sufficient explanation of the complex issues raised, and considered that a “carefully prepared background item ahead of the discussion should have been given”. In the complainant’s view, Mr Holmes, was the “dominant” person in the discussion and was “denigrating and hostile” toward Ms Kelly and her actions.

[18]   With regard to the broadcaster’s contention that the interview was robust, Ms Latimer argued that there was still an expectation of balance and objectivity, given the item was broadcast on a current affairs programme paid for by public funds. The complainant said that on this occasion, balance required information to be presented on the substantial tax concessions provided to the film company and Warner Bros., as well as the fact that negotiating pay rates with the assistance of union representatives was a basic workers’ right in other industries.

[19]   In further submissions, Ms Latimer provided the Authority with a New Zealand Herald article and a transcript of the Q + A interview, which she said indicated The Hobbit dispute had been resolved prior to the broadcast. The complainant argued that Ms Kelly’s attempts to explain this were “either ignored or refuted” by both the host and Mr Barnett.

Broadcaster’s Response to the Authority

[20]   With regard to Ms Latimer’s further submissions, TVNZ considered that it was unreasonable to presume that Q + A and Mr Barnett were aware of information that the dispute had been settled. It said that it reported Sir Peter Jackson’s perceptions of the dispute as they stood at the time of the broadcast, and argued that it could not be found to be at fault if one of the main protagonists in the controversy was unsure of the facts. Further, the broadcaster maintained that it was reasonable for Mr Holmes to discuss his opinion on the facts as he understood them at that time of the broadcast, which it said constituted freedom of expression and was permitted under broadcasting standards. The broadcaster reiterated that the dispute was an ongoing issue and argued that subsequent media reports clarified the facts for the public as they became better known.

Complainant’s Final Comment

[21]   Ms Latimer said that the information contained in the New Zealand Herald article “contrasted starkly with the hostile and disbelieving manner afforded to Ms Kelly when she attempted to explain the sequence of events as she had experienced them”.

[22]   The complainant did not dispute the host’s right to express his views and perceptions. However, she argued, the host also had a duty to the viewing public to maintain an “acceptable level” of fairness and balance, which, she said, he failed to do on this occasion.

Authority’s Determination

[23]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 6 (fairness)

[24]   Standard 6 requires broadcasters to deal fairly with any person or organisation taking part or referred to in programmes. The complainants argued that Ms Kelly was treated unfairly during the interview.  

[25]   In our view, there was a clear difference in the host’s treatment of Ms Kelly and Mr Barnett. During the first part of the interview the host interrupted Ms Kelly on a number of occasions and was openly biased. As the interview progressed, the host became unnecessarily aggressive and displayed active contempt towards Ms Kelly’s position. This was in stark contrast to the non-confrontational and respectful manner with which he interviewed Mr Barnett.

[26]   Despite the host’s aggressive interviewing style and his apparent lack of impartiality, we note that Ms Kelly remained calm and composed throughout the interview and responded to all of his questions effectively. We consider that, in her position as President of the CTU, Ms Kelly would have expected to be interviewed robustly on a topic that had generated much public controversy. In Kiro and Radioworks Ltd,³ the Authority stated that the fairness standard:

... does not prevent criticism of public figures. Indeed, it is an essential element of free speech that even the most trenchant criticism of public figures be allowed. ...The question for the Authority is whether that criticism overstepped the boundaries of fairness, that is, whether it strayed into abusively personal territory.

[27]   As noted above, we accept that the host was aggressive and confrontational towards Ms Kelly, particularly in the second half of the interview. However, it is our view that the criticism was aimed at Ms Kelly in her professional capacity, and was not an attack against her personally. With regard to comments that Ms Kelly’s handling of things was “a complete failure”, that she “might be fantasising”, was “preaching”, and was “clueless”, we consider that the host was expressing his personal opinion, and repeating others’ opinions, of Ms Kelly in her professional capacity, and that freedom of expression protects his right to do so.

[28]   For these reasons, we do not consider that Ms Kelly was treated unfairly on the programme and we therefore decline to uphold the Standard 6 complaints.

Standard 4 (controversial issues – viewpoints)

[29]   Standard 4 requires broadcasters to make reasonable efforts, or give reasonable opportunities, to present significant points of view when controversial issues of public importance are discussed, either in the same programme or in other programmes within the period of current interest.

[30]   In our view, Q + A was clearly a current affairs programme, dealing with political news and commentary, so that Standard 4 applies on this occasion.

[31]   We consider that the item focused on industrial action surrounding The Hobbit movie and the potential this had to move film production off-shore. We agree with TVNZ that this was a controversial issue of public importance, which has typically been defined by the Authority as something that would have a significant potential impact on, or be of concern to, members of the New Zealand public (e.g. Powell and CanWest TVWorks Ltd⁴).

[32]   The complainants argued that the host repeatedly interrupted Ms Kelly and that she was not given a sufficient opportunity to present the union viewpoint. As noted above in our consideration of fairness, we accept that the host took an aggressive stance when interviewing Ms Kelly, and we acknowledge that she was interrupted on a number of occasions. However, it is our view that Ms Kelly was still able to express her perspective on the topic when considering the interview in its entirety. In addition, we note that Standard 4 allows for significant viewpoints to be presented across programmes “within the period of current interest”. In this respect, we agree with TVNZ that other programmes, including Close Up and One News, contributed significant perspectives on the issue. We also note that the dispute attracted widespread public interest and extensive coverage in other news media.

[33]   Accordingly, we find that significant viewpoints on the controversial issue were provided in Q + A and in other programmes within the period of current interest, and we therefore decline to uphold the Standard 4 complaints.

Standard 7 (discrimination and denigration)

[34]   The complainants argued that the host’s approach on the programme encouraged the personal denigration of Ms Kelly. Standard 7 applies only to sections of the community, and not to individuals. Accordingly, we find that the standard does not apply in the circumstances and we decline to uphold this part of the complaints.

Standard 1 (good taste and decency)

[35]   Pat Bolster’s primary concern related to the manner in which the host dealt with Ms Kelly on the programme.

[36]   We note that the Authority has previously stated that standards relating to good taste and decency are primarily aimed at broadcasts that contain sexual material, nudity, violence or coarse language.⁵ However, the Authority has also said that it will consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress.⁶

[37]   In our view, the good taste and decency standard is not relevant to this complaint. However, we consider that the complainant’s concerns in this respect have been adequately addressed in our consideration of Standard 6 (fairness).

[38]   Accordingly, we decline to uphold the Standard 1 complaint.

For the above reasons the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

Peter Radich
Chair
29 March 2011

Appendix

The following correspondence was received and considered by the Authority when it determined these complaints:

1                  Pat Bolster’s formal complaint – 27 October 2010

2                 TVNZ’s response to the complaint – 3 December 2010

3                 Pat Bolster’s referral to the Authority – 21 December 2010

4                 TVNZ’s response to the Authority – 10 February 2011

1                  Anne Latimer’s formal complaint – 25 October 2010

2                 TVNZ’s response to the complaint – 23 November 2010

3                 Ms Latimer’s referral to the Authority – 16 December 2010

4                 Ms Latimer’s further submissions (including NZ Herald article and interview transcript) –
                  11 January 2011

5                 TVNZ’s response to the Authority – 11 February 2011

6                 Ms Latimer’s final comment – 18 February 2011

¹Ministry for Social Development and TVNZ, Decision No. 2006-076

²Powell and CanWest TVWorks Ltd, Decision No. 2005-125

³Decision No. 2008-108

⁴Decision No. 2005-125

⁵For example, Yeoman and TVNZ, Decision No. 2008-087

⁶For example, Bush and TRN, Decision No. 2010-114