BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

Campbell Live covered a story about an eader (a pit for raw milk waste) in the town of Eltham in Taranaki that was allegedly making local residents ill. The South Taranaki District Council complained that the item was inaccurate and unfair. The Authority found that this was an important story which carried high public interest and that much of it was accurate and well-reported. Nevertheless, a number of statements conveying the gravity of the problem with the eader did not have a sufficient basis and were overblown, which was misleading and unfair. Accordingly the Authority upheld some aspects of the complaint.

Upheld: Accuracy, Fairness

No Order

Introduction

[1] Campbell Live covered a story about an eader (a pit for raw milk waste) in the town of Eltham in Taranaki that was allegedly making local residents ill.

[2] The South Taranaki District Council, which is responsible for the eader, complained that the broadcast contained numerous inaccuracies and was unfair to both the Council and its Chief Executive.

[3] The issue is whether the broadcast breached the accuracy and fairness standards of the Free-to-Air Television Code of Broadcasting Practice.

[4] The item was broadcast on TV3 on 16 September 2014. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the programme and freedom of expression

[5] Campbell Live was described by MediaWorks as a 'leading current affairs programme' which frequently took a public advocacy perspective. We accept that this carried high value and that investigative advocacy journalism is a vital part of the media. By its nature, advocacy journalism is often sensationalist, which is sometimes necessary or even desirable in order to legitimately draw attention to important issues. This approach is acceptable so long as standards are maintained – and this epitomises the fundamental balance between the importance of the right to freedom of expression and to tell these stories, and the obligation to avoid causing undue harm.

[6] This particular item was introduced by the programme presenter John Campbell, as follows:

[This story is] important, but because it's in a small town it seems to be going unnoticed. We've been following it for nearly a year – the bad smell hanging around Eltham. It's serious. It came about after Fonterra, with the consent of the local council, dumped millions of litres of raw milk product at the local wastewater plant. And now the people of Eltham are seriously concerned that what's coming out of the rotten milk is making them sick.

[7] A graphic behind Mr Campbell displayed the word 'toxic'. The item then began with the reporter saying:

Welcome to Castle Street. It's probably much like the street you live in – each house a home to middle-class New Zealand. Castle Street might look deserted, but it's not. It's just that everyone who lives here stays firmly shut indoors. Nobody opens their doors or windows, nobody stands chatting over the back fence.

[8] The eader was shown and the reporter said, '...And that's because of this. It's called an eader, a covered pond of rotten buttermilk – once smelly and putrid, now emitting dangerous, toxic gases'. The reporter interviewed some residents about what they thought was potentially in the eader. One resident said, 'There's quite a good chance that there is no real understanding of what is in there now – it could be anything'.

[9] Footage from an earlier Campbell Live story on the issue was shown, with a caption reading 'December 2013'. The reporter said, 'We first visited Eltham last December, after residents rang to complain about the stench coming from the nearby waste lagoon'. The reporter discussed how the problem had arisen, and said 'the residents weren't consulted, and they were not happy'. Residents were shown describing the smell as 'putrid', 'horrid' and 'sickening'. The reporter then explained that 'The Council had made a mistake. The eader could not break down the dairy waste. ...At the time [of the December 2013 visit], the Council told us it was a short-term problem; a fix was on the way'. An individual who was presumably a Council employee was shown saying that the situation was likely to improve.

[10] Following the December 2013 footage and recap, the item showed footage from a later Campbell Live programme, marked 'March', which was introduced by the reporter saying, 'Four months later – March this year – the smell still hung in the air'. The reporter interviewed a resident about the health effects the odours had on people in the area, such as mood swings and insomnia. In a voice-over the reporter said, 'That was the first clue there was something seriously wrong on Castle Street'.

[11] The item then moved to September 2014. The reporter said, 'Eleven months later, the residents believe they are being slowly poisoned. And that's because it's no longer the rotten buttermilk in the eader that's causing a problem, it's the toxic gases coming from its breakdown – gases that are making the residents very, very ill'. The reporter interviewed various residents who described health effects such as migraines, nausea, mood swings, coughs, sore throats, poor sleep and dizziness.

[12] The reporter said:

What [the residents] have been breathing in is a combination of dangerous gases. Air testing commissioned by the Taranaki Regional Council at the edge of the eader picked up hydrogen sulphide, methyl mercaptan, ethyl mercaptan and dimethyl disulphide – gases that cause headaches, nausea, coughing, dizziness, vomiting, tremors and worse. Hydrogen sulphide, a potentially fatal poison, was reported downwind from the eader at more than 1,000 times the recommended safety limit.

[13] Residents were shown talking further about their health symptoms. The reporter stated, 'Three residents of the street have died since the saga started. There is no evidence to suggest they have died as a result of the fumes but locals are now demanding this problem be taken more seriously'.

[14] The reporter read out an email from a resident, who had 'complained the smell was getting worse, that the Council had told her to go to a motel. She couldn't afford it. At night she was sleeping in her car to escape the stench'.

[15] Another resident was shown saying, 'None of us ever have a hope of being well when we are having to constantly breathe in a noxious gas'. The reporter asserted that 'the Council has refused rates rebates or relocation allowances' and had promised that 'the eader is pumped out – it's empty'. Residents outlined their experiences of the effects of the eader and the smell on their animals and plants, such as chickens and fruit trees dying.

[16] The reporter then said:

Residents say the Council continue to deny them information about what's going on. The reports into the gases were only released to them under Official Information requests.
...Last week the District Council appeared in court on eight charges brought by the Regional Council. The residents were there to see it plead guilty to one: discharging odours. The others were dropped. No one from the Council would be interviewed for this story.

[17] More comments from residents followed, including one saying, 'I want people to stand up and say, "We did this. We are sorry". But no one will actually stand up'. The reporter ended the segment by saying, 'The residents can only wait for the winds to change'.

[18] Mr Campbell wrapped up the item, saying:

[The Council] gave us a statement from the CEO, Craig Stevenson, but it doesn't answer our questions, Craig. We wanted to know what sort of air testing was done, what medical testing was done, what compensation (if any) the residents will get, what happens if they try and sell their homes and so on. Frankly we think this is disgraceful, Craig. You are on the stonewall. It's simply not good enough. The South Taranaki District Council works for the residents but we think you have failed them spectacularly.

[19] This story carried very high public interest, as it involved a public body's actions and their potentially adverse effects on residents. The high public interest, the significance of the issues and the right to freedom of expression – both the broadcaster's right to impart information and the audience's right to receive it – must be weighed against the level of harm alleged to have been caused to the complainant by the broadcast. If we are to uphold the complaint we must impose only such limit on the right to freedom of expression as is reasonable and we must be able to demonstrate that our limitation is justified.

Overview of findings

[20] In our view there was an entirely legitimate and important story to tell here. These were some very serious concerns about the actions of the Council and about the situation of the residents in Eltham. Local authorities must expect to be subject to very strong criticism, especially in regard to these sorts of issues which have the potential to impact negatively on public health. They are accountable to their local community and the wider New Zealand public.

[21] Having said that, we also think that at a number of points in the item, Campbell Live went a step too far in the manner it portrayed the seriousness of the situation, particularly in relation to how dangerous or 'toxic' the eader emissions actually were, and the gravity of the health effects they had allegedly caused. The statements which have caused us some concern are:

•  'Hydrogen sulphide, a potentially fatal poison, was reported downwind from the eader at more than 1,000 times the recommended safety limit'. (Reporter)
•  'The eader is emitting dangerous, toxic gases.' (Reporter)
•  '...gases that are making the residents very, very ill'. (Reporter)
•  'Three residents of the street have died since the saga started. There is no evidence to suggest they have died as a result of the fumes but locals are now demanding this problem be taken more seriously'. (Reporter)

[22] We think these comments taken together created an impression which was not adequately supported by the information available, which was overblown, and which would have misled viewers in the sense that it gave them a 'wrong idea or impression of the facts'.¹ Unfortunately this took away somewhat from the important messages of the story and meant that the item did not serve viewers as well as it might have. We therefore uphold aspects of the complaint under accuracy and fairness. In our view the remainder of the points raised in the Council's complaint were secondary and did not breach standards. They were either clearly opinion, not material to the focus or matters of semantics. For completeness we have briefly addressed each of these points under the accuracy standard, from paragraph [38] below.

Was the broadcast inaccurate or misleading?

[23] The accuracy standard (Standard 5) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.²

Overall impression created by the item

[24] As we have said above (paragraphs [21] to [22]), a number of statements by the reporter in the item, when viewed cumulatively, overstated the level of danger and the exact nature of the health hazards caused by the eader, beyond what had been proven and beyond the information that was available to the broadcaster. We have briefly elaborated our views about each of the statements below, though we emphasise that we are more concerned with the overall picture created by these four statements taken together.

'Hydrogen sulphide, a potentially fatal poison, was reported downwind from the eader at more than 1,000 times the recommended safety limit'.

[25] The Council argued that the report on which this statement was based was later found in peer review to be inaccurate, and 'proper' testing showed no traces of hydrogen sulphide. It said the tests the reporter relied on were carried out using hypothetical modelling based on data from earlier tests of material inside the eader, and this could not amount to 'poison' being 'reported downwind'.

[26] MediaWorks conceded that on this point it had 'misinterpreted' the data and that this statement was inaccurate, but did not consider the accuracy standard had been breached.

[27] This was the statement which caused us the greatest concern. MediaWorks has accepted that the reporter made the statement based on testing that she did not realise was carried out using hypothetical modelling of a worst-case scenario. This meant that the 'potentially fatal poison' could not have been 'reported downwind' and could not have been present 'at more than 1,000 times the recommended safety limit'. This was a bold claim in a story about the injurious health effects of the eader on residents. Further, viewed in conjunction with references to 'toxic' and 'dangerous' chemicals it was alarmist in our view and suggested the chemical could cause death even some distance away from the eader. It was more than a technical inaccuracy and misled viewers.

'The eader is emitting dangerous, toxic gases'.

[28] The Council identified four different statements to this effect in the item, and provided a report which it maintained showed that 'there is no evidence of toxic gases being emitted'. It submitted that 'there is more than a technical difference between odours and toxic gases – the former is without doubt annoying while the latter in sufficient concentrations, can be very harmful'. It did not 'accept that it would have been difficult to explain the difference between odours and toxicity'.

[29] MediaWorks submitted evidence that emissions testing showed that chemicals had been recorded at significant levels. It conceded that there is a 'technical distinction of "toxicity" but that viewers would have understood the term "toxic gases" in the context in which it was intended – that is to say that odours caused by gases from the eader have produced negative health effects on the residents and that they, after 11 months, are still suffering those effects'. It did not consider that the use of the term 'toxic' would have misled viewers.

[30] In our view, the repeated use of the words 'dangerous' and 'toxic' suggested that the gases were at a level beyond some 'negative health effects' and were at the level of being poisonous and seriously harmful. While test results we were supplied with did show that there were potentially harmful gases detected at the edge of the eader, to extrapolate from this that the gases were 'dangerous' and 'toxic' and causing significant effects on residents' health strained the facts too far.

'Gases that are making the residents very, very ill'.

[31] The Council argued that there was no evidence that the gas emissions were causing illness. It distinguished between 'odours caus[ing] some adverse health effects' and 'toxic gases making people very ill'.

[32] MediaWorks maintained that the Taranaki District Health Board's Medical Officer had been notified by doctors that a number of people had 'suspected poisoning arising out of chemical contamination of the environment' and that an air quality specialist had found that the eader gases could cause adverse health effects to the residents.

[33] We have reviewed the information provided to us by MediaWorks and we are not persuaded that it supports the strong statement made in the programme. A report on eader source testing carried out by Emission: Impossible included the following:

It is important to understand that a key limitation of a screening assessment [of air quality] is that it cannot provide any indication of actual public exposure. This is because it focuses only on worst-case possible short-term... levels only.

Based on source testing... a conservative screening assessment indicates that downwind levels of [three chemicals] may have exceeded short-term... air quality criteria at downwind locations representative of residents' houses... Exceedance of these criteria does not necessarily mean that adverse effects will occur, rather it means that adverse health effects cannot be ruled out.

...Some of the health effects associated with the contaminants identified... are consistent with those reported by residents to medical practitioners in the Eltham area... However they are also consistent with adverse health effects associated with general exposure to odours (Ministry for the Environment, 2003):

...People can develop physiological effects from odour even when their exposure is much lower than that typically required to cause direct health effects. This effect is sometimes termed 'odour worry' and is due to the perception that if there is a smell it must be doing physical harm. [Our emphasis]

[34] In our view these findings were not as definitive as the item suggested. The report states that while the reported health effects could be caused by the contaminants or gases tested for, they equally could be caused by the odours or even by residents' perception that the odours were harmful. It was overstating the situation to unequivocally claim there was a causal link between the gases and the residents' symptoms.

'Three residents of the street have died since the saga started. There is no evidence to suggest they have died as a result of the fumes but locals are now demanding this problem be taken more seriously'.

[35] The Council argued that this statement was irresponsible and created a false and misleading inference. MediaWorks argued that the statement was not irresponsible because there was 'immediate qualification' about there not being proof that the fumes caused the deaths.

[36] While the reporter did acknowledge 'there is no evidence to suggest they have died as a result of the fumes', in our view there could have been no other purpose in referring to three 'unrelated' deaths besides inferring a link with the eader. The clarification was not enough to dispel this inference, particularly after the reporter had so boldly (and wrongly) suggested that a 'potentially fatal poison' was present in the area even some distance from the eader at '1,000 times the recommended safety limit'. Further, it was clearly suggested that the residents had used the three deaths in support of 'demanding this problem be taken more seriously'. This comment bolstered the misleading impression already created by the other three statements we have identified.

Conclusion

[37] As we have said, we recognise the value of advocacy journalism and we appreciate that this was a very important story which carried high public interest. Nevertheless, we think the misleading impression created about the situation outweighed the broadcaster's right to tell the story in the way it chose to. Viewers were not as well served as they would have been if the broadcaster had stuck to the facts and accurately conveyed the information it had uncovered. We are therefore satisfied that upholding these aspects of the accuracy complaint places a justifiable limit on the right to freedom of expression.

Other alleged inaccuracies

[38] The Council also identified numerous other statements which it argued were inaccurate or misleading. We are satisfied that these did not breach standards of accuracy and we have briefly outlined our reasons in relation to each statement.

'Air testing commissioned by the Taranaki Regional Council at the edge of the eader picked up hydrogen sulphide, methyl mercaptan, ethyl mercaptan and dimethyl disulfide'. (Reporter)

[39] The Council argued that this was inaccurate because:

•  It was the South Taranaki District Council which carried out the testing; and
•  None of these gases were found during the testing.

[40] MediaWorks submitted that different test results commissioned by the Regional Council showed that these chemicals were present at the site.

[41] Having regard to the material before us, it appears that the Taranaki District Health Board and the Ministry of Health commissioned an independent review by an emissions specialist of the Council's air quality testing. It was not the Regional Council carrying out testing; it was the District Council which had carried out the testing. Nevertheless, it appears that these gases were found to be present in the testing which the broadcaster had regard to.

[42] We do not think that the details of who carried out the testing were material to the item as a whole, and in any case, it was the independent review that brought the presence of the chemicals to light. What is material is whether the chemicals in question were detected at the eader, and from what we can see, MediaWorks had reasonable evidence on which to base this statement.

A resident 'complained the smell was getting worse, that the Council had told her to go to a motel. She couldn't afford it. At night she was sleeping in her car to escape the stench'. (Reporter)

[43] The Council conceded that it had been approached by the resident in question, but said it had offered to pay the motel bill, which the broadcast did not mention. MediaWorks provided correspondence from the resident saying that she had contacted the Council who told her to go to a motel, but she said she 'could not afford' it so she slept in her car.

[44] The correspondence was displayed on-screen in the broadcast and was read out by the reporter. It was reasonable for MediaWorks to rely on the resident's account of what happened.

'[T]he Council has refused rates rebates or relocation allowances'. (Reporter)

[45] The Council argued that it had in fact contributed to some relocation costs and had offered to pay for temporary relocations, as well as other compensation options. It asserted it was untrue that it had refused rates rebates as it had never had a 'formal request'.

[46] MediaWorks contended that it was true that the Council was not giving rates rebates, which had been requested in person or over the phone. The important thing, they said, was that the Council was not contributing to permanent relocation costs, only temporary ones, which residents were not interested in.

[47] It appears from correspondence that the Council did pay some relocation costs in one instance, but had not acted on other 'informal' requests for rates rebates. In other words, the Council had not considered or granted informal requests for rates rebates and had only contributed to a minor portion of one family's relocation (a trailer hire). We do not consider that the reporter's statement was materially different from this, or would have misled viewers.

'No one from the Council would be interviewed for this story' (Reporter) and 'The South Taranaki Council flatly refused to be interviewed'. (John Campbell)

[48] The Council asserted that Campbell Live gave them insufficient time and information to comment. The Council did give Campbell Live a statement that its representatives could not appear on television because the matter was 'sub judice' because of an Environment Court proceeding, but this statement was not mentioned in the broadcast.

[49] We have been pointed to correspondence which shows that the Council would not be interviewed for the story so it was not inaccurate to say it 'refused to be interviewed'. The reasonableness of the opportunity to comment and the reasons that the Council declined to be interviewed are more appropriately addressed as a matter of fairness (discussed from paragraph [70] below).

'The Council continue to deny [residents] information about what's going on'. (Reporter)

[50] The Council asserted that they held two public meetings, met with an Eltham community group nine times, issued 17 newsletters to 150 properties and answered 12 Official Information requests relating to the eader.

[51] MediaWorks disputed the level of information the Council supplied, and said that the number of Official Information requests showed that residents were 'forced' to request information in order to find out what was happening. It provided emails that in its view demonstrated there was 'collusion and secrecy' around the eader.

[52] The statement complained of was immediately followed by the statement: 'The reports into the gases were only released to them under Official Information requests' – so the programme acknowledged that the Council had answered requests for official information. In any case, we consider this statement would have been interpreted as the residents' perceptions of the quality and quantity of information provided by the Council, and was therefore exempt from standards of accuracy as analysis, comment or opinion (guideline 5a).

'Last week the District Council appeared in Court on eight charges brought by the Regional Council'. (Reporter)

[53] The Council argued that only one charge was brought in court, and that the other seven charges had been dropped. MediaWorks provided evidence that the other seven charges were only dropped the day the Council appeared in court, so it was accurate to say that the Council was facing eight charges.

[54] We note the full statement made by the reporter was as follows:

...Last week the District Council appeared in court on eight charges brought by the Regional Council. The residents were there to see it plead guilty to one: discharging odours. The others were dropped. [Our emphasis]

[55] This was an accurate summation of what happened and made it clear only one charge was heard in court.

'[E]veryone who lives here [Castle Street in Eltham, near the eader] stays firmly shut indoors. Nobody opens their doors or windows, nobody stands chatting over the back fence and that's because of this'. (Reporter)

[56] The Council argued that this was sensationalist and untrue, as 'residents interact in the same way as on any other street'. It said that in the five months preceding the broadcast there were only two complaints about the odour of the eader, neither of which was upheld by the Regional Council.

[57] MediaWorks contended that the reporter's statement was based on her observations of the times she visited the community for the story. It submitted that in any case the statement was not material to the story.

[58] This statement by the reporter was clearly her own observation and experience of the street. She was setting the scene at the beginning of the story, to pique viewers' interest. It was not a statement of fact to which the accuracy standard applied.

'There is quite a good chance that there is no real understanding of what is in there now – it could be anything'. (Resident)

[59] The Council argued that samples of the contents of the eader were taken in March 2014 and reported to the residents in mid-April 2014, so there was an understanding of what was in the eader.

[60] MediaWorks supplied evidence that in April 2014 residents were told that there were 500,000 litres of waste left in the eader, but in July 2014 were told that there were 2.4 million litres of waste left. It provided an email in which a Council employee said there had been a 'miscalculation' but did not clarify the amount of waste left. In any case, MediaWorks considered the statement was the resident's opinion so the accuracy statement did not apply.

[61] We agree. This was clearly the resident's opinion, and was not a statement of fact to which the accuracy standard applied (guideline 5a). It was in the nature of conjecture, and the phrase 'there is quite a good chance' indicated the resident was speaking from personal experience and speculating as to the Council's actual acknowledge of the contents, compared to what residents were told.

'I want people to stand up and say, "We did this. We are sorry". But no one will actually stand up'. (Resident)

[62] The Council argued that its Chief Executive took responsibility at a public meeting in 2013 and had publicly apologised many times since then, including via an earlier Campbell Live broadcast and a letter of apology to residents.

[63] Again, we agree with MediaWorks that this was clearly a statement of the resident's opinion to which the accuracy standard did not apply.

Historical footage

[64] Campbell Live had produced two previous items on the Eltham issue, at a time when the problems with the eader were much more severe. The Council argued that historical footage from these broadcasts was shown in the 16 September broadcast but not clearly identified as being historical, which was misleading because it suggested the problem was as bad as it always had been.

[65] As outlined at paragraphs [9] and [10] above, there were captions displayed onscreen showing the dates of the footage, as well as voiceovers from the reporter which made the timeline clear (for example, '[f]our months later...', '[e]leven months later...'). Reasonable viewers would have identified the footage as being historical and would not have been misled.

Were the South Taranaki District Council and its Chief Executive treated unfairly?

[66] The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.³

[67] The complainant argued that 'given the sheer number of inaccuracies' and that the item was 'highly unbalanced', the Council was treated unfairly. It considered MediaWorks had given the Council insufficient time and information to comment. Although the Campbell Live team had spent time in Eltham, the reporter did not contact the Council until she was back in Auckland at 4:45pm on a Friday, to request a live interview the following Tuesday. The Council asserted that all of this was 'designed to ensure [the Council] would have minimum time to respond appropriately and organise travel'. It also said that the questions the reporter said she wanted to discuss did not match the questions Mr Campbell asked at the end of item (see paragraph [18]).

[68] MediaWorks argued that the Campbell Live team had limited time in Eltham and that the questions the reporter asked the Council were more or less the same questions Mr Campbell posed at the end of the item; any that were not covered by the reporter would have been put to the Council if a live interview had taken place. MediaWorks maintained that the Council had 'plenty of scope and opportunity... to counter-offer with an on-tape interview, or a different day or time – it didn't offer any of these'. It also considered it was contradictory for the Council to complain about not being given the opportunity to comment, when it had already stated that it would not be commenting due to 'sub judice' rules – though it noted the Council had specifically been told by MediaWorks that it 'only wanted to discuss issues already in the public arena'.

Unfairness resulting from misleading impression

[69] We have found in relation to the accuracy standard that the item contained a number of statements which were overblown and therefore created a misleading impression of the gravity of the problem with the eader. This in turn suggested that the Council's actions: firstly, had created a much more serious and harmful situation than the evidence demonstrated; and secondly, were inadequate to sufficiently address the residents' concerns and remedy what was a very serious problem. We therefore find that the programme was unfair to the Council and we uphold this aspect of the Standard 6 complaint. For the reasons outlined in paragraph [37], we are satisfied that this places a reasonable and justifiable limit on the right to freedom of expression.

Opportunity to comment

[70] In our view, the period from Friday afternoon to Tuesday evening was ample time in which the Council and its Chief Executive could have prepared for an interview. The Council nevertheless elected not to do the interview, advising the producers that certain aspects of the matter were before the Environment Court and therefore 'sub judice'.

[71] Mr Campbell calling the Council's Chief Executive 'disgraceful' and putting him on the 'stonewall' without any reference to the Council's reasons for declining comment could be seen to be unfair. However, we are not persuaded that the Council was completely prevented from commenting solely by virtue of 'sub judice' rules, and therefore that presenting him as 'stonewalling' was unreasonable. As a local authority and a public body with experience in dealing with the media, the Council was well equipped and had the means to collate a meaningful response to at least some of the issues. There were aspects of the programme that the Council could have commented on which were not subject to proceedings, and as MediaWorks has pointed out, it was only interested in issues that were publicly known.

[72] Having declined comment on a serious issue, both the Council and the Chief Executive should have expected that it was likely their failure to front would be highlighted in the programme. We do not think that the programme was unfair in this respect, and we therefore decline to uphold the remainder of the fairness complaint.

[73] As an aside, we reject the broadcaster's argument that having declined the request for an interview, the Council should have 'counter-offered' alternative ways to give comment for the programme. The obligation to treat participants fairly and offer a reasonable opportunity for comment is the broadcaster's to satisfy, not the participant's.

For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks TV Ltd of Campbell Live on 16 September 2014 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[74] Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on the provisional decision and orders

[75] MediaWorks accepted the provisional decision and noted that the Authority found that the story carried high public interest and was 'well-intentioned'. It submitted that the breach in this instance was not serious and pointed out that 'a significant proportion of the items of complaint... were not upheld'. Accordingly it considered that neither a broadcast statement nor costs were warranted.

[76] The Council indicated that it was 'pleased' with the provisional decision, although it said it was 'surprised that the accuracy standard does not apply to many of the statements [in the item] merely because of who makes them or how they are made'. It considered a broadcast statement on 3 News summarising the decision would be appropriate because the breach was 'significant and goes to the heart of our community and the trust and faith that any community needs to have in institutions such as the Council'. It did not seek to recover costs.

Authority's response to submissions and decision on orders

[77] Regarding the Council's submissions on the provisional decision, we note it is well-established that the accuracy standard does not apply to analysis, comment or opinion. Who makes statements and how they are made is an important part of determining whether this exemption applies. We therefore stand by our findings under Standard 5.

[78] Having considered the parties' submissions on orders, we are of the view that in all the circumstances, publication of this decision is a sufficient remedy. The story carried a high level of public interest. Our findings relate to specific aspects of the story that were misleading, and our decision clarifies our expectations around accuracy and fairness in reporting legitimate issues.

Signed for and on behalf of the Authority

Peter Radich

Chair

14 August 2015

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1      South Taranaki District Council's formal complaint – 9 October 2014

2      MediaWorks' response to the complaint – 7 November 2014

3      STDC's referral to the Authority – 4 December 2014

4      STDC's comments on the referral – 12 December 2014

5      MediaWorks' response to the Authority – 2 March 2015

6      STDC's final comments – 23 March 2015

7      MediaWorks' final comments – 7 April 2015

8      MediaWorks' submissions on the provisional decision and orders – 24 July 2015

9      STDC's submissions on the provisional decision and orders – 24 July 2015

¹  Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110 at paragraph [98] per Williams J

² Bush and Television New Zealand Ltd, Decision No. 2010-036

³ Commerce Commission and TVWorks Ltd, Decision No. 2008-014