BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

Two episodes of Story featured items about self-described ‘professional political campaigner’ Simon Lusk. In the first item, presenter Duncan Garner was shown hunting with Mr Lusk, and Mr Lusk apparently shot two deer. Excerpts of political figures being interviewed about their involvement with Mr Lusk, and of Mr Lusk discussing such involvement, were shown throughout the items. The Authority did not uphold a complaint alleging that the items were in breach of multiple broadcasting standards for the way Mr Lusk’s involvement in politics was reported and for featuring footage of deer hunting. The footage of the deer hunting was not so graphic or gratuitous that it would have offended a significant number of viewers, including child viewers. Additionally, nothing in the items was unfair to any individuals, encouraged criminal activity, discussed a controversial issue of public importance, was inaccurate or discriminated against or denigrated any section of the community.

Not Upheld: Good Taste and Decency, Children’s Interests, Fairness, Law and Order, Controversial Issues, Accuracy, Discrimination and Denigration

Introduction

[1]  Two episodes of Story featured items about self-described ‘professional political campaigner’ Simon Lusk. In the first item, broadcast on 16 November 2015, presenter Duncan Garner was shown hunting with Mr Lusk, and Mr Lusk apparently shot two deer. Excerpts of political figures being interviewed about their involvement with Mr Lusk were shown throughout the item. In a discussion between the presenters, Mr Garner mentioned that Mr Lusk had claimed to have paid people in Northland $150 to vote in the 2015 Northland by-election. Mr Lusk was shown talking about his strategy, which he said was to ‘dominate, intimidate, humiliate’. He also implied that some politicians had extra-marital affairs.

[2]  In the second item, broadcast on 17 November, some of the hunting footage was again shown, and Mr Lusk was interviewed about his predictions regarding prominent politicians as well as his alleged work for Labour MP Stuart Nash and alleged campaign against Labour MP Phil Twyford. Brief excerpts were shown of Mr Nash and Mr Twyford being questioned by TV3’s political editor.

[3]  Simon Boyce complained that the ‘gratuitous murder and butchering of deer’ was ‘inappropriate and abhorrent’ and unsuitable for children. He also complained that the items made a ‘number of serious and controversial claims, with legal implications’.

[4]  The issue is whether the broadcasts breached the good taste and decency, children’s interests, fairness, law and order, controversial issues, accuracy and discrimination and denigration standards of the Free-to-Air Television Code of Broadcasting Practice. We have considered the good taste and decency and children’s interests standards in relation to the deer hunting footage and the fairness, law and order, controversial issues, accuracy and discrimination and denigration standards in relation to the remaining aspects of Mr Boyce’s complaint.

[5]  The episodes were broadcast at 7pm on TV3. The members of the Authority have viewed recordings of the broadcasts complained about and have read the correspondence listed in the Appendix.

Did the broadcasts threaten current norms of good taste and decency?

[6]  The good taste and decency standard (Standard 1) often concerns broadcasts containing sexual material, nudity, coarse language or violence.¹ The Authority will also consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause offence or distress.²

[7]  Mr Boyce argued that the ‘gratuitous murder and butchering of deer’ was ‘cruel and violent’.

[8]  MediaWorks argued that ‘[t]he hunting footage was mild and edited to exclude graphic or unacceptably challenging footage’. Additionally, because of the context of the broadcast, including that Story is an unclassified current affairs programme targeted at an adult target audience, MediaWorks did not consider that the broadcasts would have ‘disturbed or alarmed a significant number of viewers’.

[9]  The Authority has previously said that, ‘In our society [hunting and fishing] programmes are acceptable where there is no undue depiction of cruelty’.³ While we acknowledge that Story is a current affairs programme and not a hunting programme, we think the same reasoning applies here. In this instance the deer hunting footage was not graphic or gory and formed only a relatively small part of the two items. The items briefly showed Mr Lusk with a gun taking aim at a deer. The deer appeared to be in a fenced paddock and was being shot through a fence. The dead body of the deer was shown but there was no depiction of any butchering of the deer or any graphic images. Some viewers may have found the footage challenging particularly if, as appears, the deer was in a paddock. However hunting is generally viewed as acceptable in New Zealand society and, as depicted, would not have been likely to offend a significant number of viewers in the context of an unclassified current affairs programme aimed at adults. Any concerns would likely have been moral concerns rather than concerns about depiction of cruelty. The killing of the deer which is seemingly in a paddock does not itself in our view amount to cruelty of a kind to which the standard is directed.

[10]  Accordingly we do not uphold the Standard 1 complaint.

Did the broadcaster adequately consider children’s interests?

[11]  The children’s interests standard (Standard 9) requires broadcasters to consider the interests of child viewers during their normally accepted viewing times – usually up to 8.30pm. The purpose of the standard is to protect children from broadcasts which might adversely affect them.⁴

[12]  Mr Boyce argued that the item aired ‘too early in the evening’ and that children could have been watching the ‘violent’ hunting footage.

[13]  MediaWorks argued that news and current affairs programmes such as Story ‘are unlikely to be watched by unsupervised young children’.

[14]  We agree with MediaWorks that children would be unlikely to be watching Story unsupervised, and that the hunting footage did not contain anything that would have been unduly challenging for child viewers, for the reasons we have outlined above at paragraph [9].

[15]  Therefore we do not uphold the Standard 9 complaint.

Was any individual or organisation taking part or referred to in the broadcast treated unfairly?

[16]  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.⁵

[17]  Mr Boyce made a complaint under the fairness standard in relation to the 17 November item only. He argued that ‘crucial details’ were not ‘put to Mr Lusk directly’ and that the politicians discussed were ‘broadsid[ed]’ with questions about Mr Lusk from TV3’s political editor.

[18]  MediaWorks argued that Mr Lusk, Mr Nash and Mr Twyford were all given ‘the opportunity to address claims made about them’.

[19]  We do not think the 17 November broadcast could be said to have caused undue harm to Mr Lusk’s reputation or dignity. While the presenters may have seemed sceptical that Mr Lusk should be ‘proud’ of his professional tactics, the focus of this item was his predictions for New Zealand politics, so it featured extensive comment from him and he was given ample opportunity to present his views and experiences in his own words. Viewers were able to form their own opinions of Mr Lusk and his political activities. Accordingly we are satisfied that Mr Lusk was not treated unfairly.

[20]  The broadcast also featured interviews with Labour MPs Stuart Nash and Phil Twyford, in which TV3’s political editor alleged that Mr Nash’s friends had paid Mr Lusk for his services, and that now Mr Lusk was ‘coming after’ Mr Twyford as a result of some of Mr Twyford’s recent political actions, which had ‘backfired spectacularly’. The presenters said that Mr Nash’s connections to Mr Lusk had ‘embarrassed’ Mr Nash and made his party ‘unhappy’, and said, ‘It’s all pretty untidy. In politics, the dirt sticks... Not a good look for Stuart Nash... I reckon he probably got a caning in caucus today’.

[21]  We acknowledge that this had the potential to reflect badly on both Mr Nash and Mr Twyford, but are satisfied that neither individual was treated unfairly. The Authority has previously recognised that the threshold for finding a breach of the fairness standard in relation to politicians or public figures is higher than for a lay person or someone unfamiliar with dealing with the media.⁶ The broadcast featured substantial dialogue between the political editor and Mr Nash in which Mr Nash clearly put his position forward, and comment from Mr Twyford was also included in which he said, ‘I’m not going to be silenced by this kind of intimidation. It’s my job to speak out on the things that matter and that’s what I’ll continue to do’.

[22]  For these reasons we do not uphold the complaint under Standard 6.

Did the broadcast encourage viewers to break the law, or otherwise promote, condone or glamorise criminal activity?

[23]  The intent behind the law and order standard (Standard 2) is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal or antisocial activity.⁷ The standard exists to ensure that broadcasters refrain from broadcasting material which does not respect the laws which sustain our society.⁸

[24]  Mr Boyce argued that the reference to Mr Lusk paying people $150 for votes was illegal and ‘should [have been] reported to legal authorities’. He also said that Mr Lusk’s receipt of money to ‘dominate, intimidate [and] humiliate’ politicians (including, he implied, by exposing extra-marital affairs, for example) suggested that Mr Lusk engaged in blackmail, which was also illegal.

[25]  MediaWorks argued that ‘while the programme may have hinted at some of [Mr] Lusk’s devious techniques it did not promote, glamorise or condone criminal activity’.

[26]  It has previously been stated that the Authority’s role is to assess whether broadcasting standards have been breached, not whether a crime has been committed. Therefore, it is not for us to decide whether Mr Lusk’s actions broke the law. Even if Mr Lusk’s actions been unlawful, simply discussing them in the broadcasts would not in itself breach the standard.⁹ The question for us is whether these broadcasts encouraged viewers to break the law or glamorised Mr Lusk’s behaviour in a manner that breached the standard.

[27]  We are satisfied that it did not. The items mentioned several times that Mr Lusk maintained that he never broke the law. While some viewers may have found Mr Lusk’s actions morally questionable, it does not follow that simply by interviewing him the programme condoned or glamorised criminal activity. The presenters did not support his views or behaviour and appeared sceptical, if anything.

[28]  Therefore we do not uphold the complaint under Standard 2.

Did the item discuss a controversial issue of public importance which required the presentation of alternative viewpoints?

[29]  The balance standard (Standard 4) states that when controversial issues of public importance are discussed in news, current affairs and 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. The standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.¹⁰

[30]  Mr Boyce argued that Mr Lusk’s ‘campaign against [Mr] Twyford is obviously something TV3 are backing’, especially given that a still shot used of Mr Twyford was ‘very unflattering’. Mr Boyce considered this to be an example of ‘bias and partisanship’ and said both Story presenters were ‘hopelessly biased’.

[31]  MediaWorks noted that the items ‘included the views of various politicians who have had dealings with [Mr] Lusk’ and thus ‘contained significant competing viewpoints’.

[32]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’ and it must be ‘discussed’.¹¹

[33]  The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.¹² A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.¹³

[34]  We do not consider that these items, which were in the nature of a profile piece about one individual and his professional tactics, amounted to a discussion of a controversial issue of public importance. The items clearly comprised mainly Mr Lusk’s own views and experiences and were framed as such from the outset, for example the presenters noted that Mr Lusk had not given any interviews before and asked ‘Who is Lusk?’ In any case, comments from both sides of the political spectrum were featured, mitigating any alleged bias.

[35]  We therefore do not uphold the Standard 4 complaint.

Was the broadcast inaccurate or misleading?

[36]  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.¹⁴

[37]  Mr Boyce did not make any arguments under the accuracy standard in his original complaint. In his referral, he argued that claims about ‘vote-buying’ were either ‘completely untrue’ or ‘must involve legal issues’.

[38]  MediaWorks pointed out that Mr Boyce did not identify any material in his original complaint that he considered to be inaccurate, but nonetheless argued that Mr Lusk’s ‘comments about his political campaign activities were clearly distinguishable as his opinions’.

[39]  In our view, most of the material (including the comments about ‘vote-buying’) was clearly presented as either Mr Lusk’s or the presenters’ opinions and analysis, which is not subject to the accuracy standard. Guideline 5a to the standard states that the standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

[40]  Accordingly we do not uphold the Standard 5 complaint.

Did the broadcast encourage the denigration of, or discrimination against, any section of the community?

[41]  The discrimination and denigration standard (Standard 7) protects against broadcasts which encourage the denigration of, or discrimination against, 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.

[42]  Mr Boyce nominated the discrimination and denigration standard in relation to the 16 November broadcast only, but did not make specific arguments under this standard. MediaWorks argued that there was no material in the broadcast that engaged the discrimination and denigration standard.

[43]  We agree with MediaWorks that nothing in the broadcast could be said to have encouraged the denigration of, or discrimination against, any section of the community as envisaged by the standard and we therefore do not uphold this part of the complaint.

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

Signed for and on behalf of the Authority

Peter Radich

Chair

14 April 2016

Appendix

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

1           Simon Boyce’s formal complaint about 16 November broadcast – 16 November 2015
2           Mr Boyce’s formal complaint about 17 November broadcast – 17 November 2015
3           MediaWorks’ response to the formal complaint about the 16 November broadcast – 15 December 2015
4           MediaWorks’ response to the formal complaint about the 17 November broadcast – 15 December 2015
5           Mr Boyce’s referral of both complaints to the Authority – 16 December 2015
6           MediaWorks’ response to the Authority – 15 February 2016

¹ Turner and Television New Zealand Ltd, Decision No. 2008-112

² Practice Note: Good Taste and Decency (Broadcasting Standards Authority, November 2006)

³Feral and MediaWorks TV Ltd and Television New Zealand Ltd, Decision No. 2014-143

⁴ E.g. Harrison and Television New Zealand Ltd, Decision No. 2008-066

⁵Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁶Kiro and RadioWorks Ltd, Decision No. 2008-108

⁷ See, for example, Keane and Television New Zealand Ltd, Decision No. 2010-082

⁸ Hunt and Māori Television, Decision No. 2009-010

⁹ See, for example, Preston and TVWorks Ltd, Decision No. 2008-016

¹⁰ Commerce Commission and TVWorks Ltd, Decision No. 2008-014

¹¹ For further discussion of these concepts see Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) and Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Radio (Broadcasting Standards Authority, June 2009)

¹² Powell and CanWest TVWorks Ltd, Decision No. 2005-125

¹³ See, for example, Dewe and TVWorks Ltd, Decision No. 2008-076

¹⁴ Bush and Television New Zealand Ltd, Decision No. 2010-036