BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An item on Sunday exposed the alleged mistreatment of bobby calves by some members of the dairy industry in the Waikato region. The Authority did not uphold a complaint that the item was an unbalanced and inaccurate depiction of dairy farming, and breached a number of other broadcasting standards. The Authority found the item was sufficiently balanced, as the perspective of the dairy industry was given both within the item and within the period of current interest. The item was not inaccurate or misleading in the ways alleged by the complainant; rather, it focused on instances of bad practice within the dairy industry and did not suggest these were commonplace. Furthermore, the item did not breach the privacy of a local farming family, as they were not identifiable or otherwise referred to in the footage. The broadcaster exercised adequate care and discretion when showing footage of cruelty against bobby calves.

Not Upheld: Controversial Issues, Accuracy, Privacy, Violence, Discrimination and Denigration, Fairness

Introduction

[1]  An item on Sunday exposed the alleged mistreatment of bobby calves by some members of the dairy industry in the Waikato region. 

[2]  In essence, Richard Knight complained that the programme was an unbalanced and inaccurate depiction of dairy farming, and that the industry was attacked on the basis of a very small number of animal abuse incidents which did not represent the industry as a whole. He also complained that the broadcast breached the privacy of a local farming family, whose farm was featured in the programme.

[3]  The issue is whether the broadcast breached the controversial issues, accuracy, privacy, violence, discrimination and denigration and fairness standards as set out in the Free-to-Air Television Code of Broadcasting Practice.¹ In our view the primary issues relate to standards regarding controversial issues, accuracy, privacy and violence. Our determination therefore focuses on those standards. We briefly address the remaining two standards at paragraph [81] below.

[4]  The item was broadcast on TV ONE on 29 November 2015. 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

[5]  Sunday is a well-known New Zealand current affairs programme which reports on local and international issues. The item subject to complaint was introduced by the presenter as follows:

When we sit down to dinner or drink a glass of milk, we probably don’t think too much about where it came from. But animal rights campaigners have declared war on our dairy industry, alleging cruelty. The evidence they say is in hundreds of hours of covert filming, and they want to attack the industry where it’ll hurt most – on international markets. Tonight we reveal the footage which activist group Farm Watch claims shows deliberate cruelty against animals.

[6]  A written warning was then shown onscreen: ‘Warning: some content may disturb’. Footage was shown of the Waikato countryside from the perspective of someone driving through the region, with the accompanying voiceover from the Farm Watch representative:

When you’re driving through the countryside, it all looks idyllic and peaceful, but it is only when you look closer that you see that what we think is normal farming is absolute cruelty.

[7]  The reporter was then shown drinking coffee in an inner-city café, and asked:

In order to make the milk for your latte or cup of tea, a cow has to get pregnant each season. But that raises the question, what happened to the calf who this milk was made for?

[8]  Footage was shown of animal rights campaigners setting up hidden cameras at various different farms, as the reporter explained, ‘To find out, the animal rights group Farm Watch set up hidden cameras to film numerous ordinary dairy farms across the Waikato’.

[9]  While footage of calves placed in crates on the side of the road was shown, the voiceover stated:

Farm Watch representative: For years we’ve been hearing stories from people in farming communities about calves in trucks, calves being left on the side of the road...
Reporter: Farm Watch wanted to track the fate of those animals known as bobby calves.
Farm Watch representative: We needed to start using hidden cameras in order to find out how they were treating these animals when they thought no-one was watching.

[10]  The following exchange between the reporter and the Farm Watch representative then took place:

Reporter: Have you got a thing about farmers, then? Dairy farmers?

Farm Watch representative: I’ve got absolutely nothing against dairy farmers personally. I know they work incredibly long hours in very difficult conditions, and that many of them end up earning less than the minimum wage. So this exposé isn’t vindictive, it isn’t aimed at hurting dairy farmers, I don’t want to hurt farmers, but I do want to expose what goes on in these farms.

[11]  The reporter explained that ‘over months, [Farm Watch] filmed the calves from birth’. The Farm Watch representative then described what was happening in some of the footage obtained, while the footage was shown on-screen:

So we’ve got footage of the cow being born in a muddy field, then we’ve got the footage of the farmers coming and separating the calf from the mother. You see a farmer interacting with his stock and you think nothing more of it, but when you look closely you see that it’s a farmer taking a baby away from its mother on the day it’s been born. All dairy farms separate calves from their mothers, and that is inherent cruelty on every single dairy farm in the country.

[12]  A six-second shot was then shown of a farm worker allegedly separating calves from their mothers, which the complainant identified as his employee and his farm. The farm worker was depicted with his face pixelated in a farm paddock some distance from the camera. He was shown riding a motorbike with a trailer attached, containing several calves standing up, around a herd of cows.

[13]  The reporter then showed to a cow behaviour expert additional footage of calf separation allegedly occurring on a different farm, who gave his opinion that the cow appeared ‘clearly distressed by the removal of her calf. The calf is being physically man-handled in a way which is, I think, quite unacceptable on a farm – being kicked and pushed and the cow is responding to that’.

[14]  Footage was shown of numerous bobby calves standing up while packed into a small crate on the side of the road, while the reporter commented:

While the milk meant for them is destined for the market, these calves have become a by-product of the dairy industry. Each season, two million calves like these will head for slaughter.

[15]  The Farm Watch representative stated:

We came back later in the afternoon expecting to see that these calves had gone, and what we found was that these calves were still there. And it was a very hot day, and these calves had gone from being bright and interacting with us to lying on the bottom of the crate almost dead. These calves had been left on the side of the road, in the hot sun, all day without food or water or shelter of any kind.

[16]  The calves were shown lying on the bottom of the pen, barely moving. While watching this footage, the cow behaviour expert stated ‘They’re showing clear evidence of distress... that’s a condition we call ‘learned helplessness’.

[17]  The reporter then questioned the Farm Watch representative:

Reporter: Farmers would say that footage was selective, that many farmers are good to their animals.

Farm Watch representative: Well I can tell you we filmed every single calf in a crate that we saw, and we’ve given to you many... hours of footage and we haven’t edited that.

[18]  Additional footage of calves lying prone at the bottom of crates, outside different farms, was shown. The reporter explained ‘the video features the dead, as well as the dying’. The Farm Watch representative said that ‘we haven’t gone through and selected the worst bits. I believe that the way all these calves are being treated is bad enough that the New Zealand public would be shocked’.

[19]  Various footage of calves being moved from crates into trucks, at times very roughly, was then shown. The reporter noted ‘The Farm Watch footage has numerous shots of live calves being thrown in different locations around the Waikato’. The cow behaviour expert also noted the overcrowding on the trucks and the long transport times gave a picture of ‘really quite severe stress to the calf at a very early age’.

[20]  The reporter then visited a Waikato woman who rescues bobby calves and has created a small ‘bobby calf sanctuary’. She stated ‘I was aware that calves get slaughtered between four to seven days of age, and I knew that it would be a highly unpleasant process but I didn’t realise that they were being abused to quite that extent’. She, with support from the cow behaviour expert, described cows as highly complex and intelligent creatures and stated ‘Just no level of care shown to the animal, it’s just treated as an object, that’s how I’ve seen farmers treat their cows’. The reporter then said ‘Of course the farmers will say well that’s because we’re in the food business, we have hundreds of stock and we can’t... cuddle everyone’. She replied ‘That’s entirely true, which is probably a point that needs to be raised – why are we abusing animals to this extent in such large numbers?’

[21]  Footage was then shown of a truck transporting calves to a slaughter-house, as well as hidden camera footage of calves inside the slaughter-house. The reporter explained:

In order to record the short life cycle of these calves, Farm Watch tracked some of the trucks to a slaughter-house [name]. These calves are bound for pet food.

[22]  The footage showed calves being thrown into a pen, sometimes on top of one another, and calves struggling to stand. At times slaughter-house workers with their faces pixelated are shown kicking calves, throwing calves and hitting calves on the head with what appears to be a hammer. At times some of these acts were pixelated as well. The reporter advised ‘We can’t show you the worst of it, but amidst the kicking, the throwing of live animals and even bashing on the head, there comes one extraordinary act of compassion – not from a worker, but a calf. A new-born calf stops to lick another injured animal until it gets up’. Footage of the two calves apparently helping one another was shown.

[23]  The Executive Director of SAFE was then interviewed, who described the slaughter-house footage as:

Beyond anything I’ve actually ever seen... it clearly shows these animals being abused. You see kicking young cows in the face, you see them shoving them around, these animals are thrown from quite a height smack-bang onto that concrete. That’s just not acceptable. The moment we saw that footage we realised there was a serious problem happening, especially at the slaughter-house, so a complaint was made to [Ministry for Primary Industries]. To date, we haven’t heard back from them.

[24]  The reporter approached the owner of the slaughter-house for comment, who stated he was surprised by the footage and allegations and had not been contacted by the Ministry for Primary Industries (MPI). The reporter also interviewed a representative from MPI and introduced him by saying ‘it is [MPI’S] job to enforce animal welfare laws industry wide’. The MPI representative described the footage as ‘disappointing’ and stated ‘we have initiated an investigation and I’m not going to comment further on our processes around that investigation’.

[25]  The reporter then interviewed the Group Director (Co-operative Affairs) of Fonterra, introducing him by stating ‘when it comes to New Zealand dairy, there is nothing bigger than Fonterra’. The interview began as follows:

Group Director: As an industry we need to get together fast to sort this out, because if things have been raised to MPI, they have an obligation to do something about it... In the examples that I’ve worked with MPI in the past, they’ve been very proactive, so in this case we need to work with them to resolve it because the footage I’ve seen is disgusting in that regard. 

[26]  The item then cut to a statement from the SAFE Executive Director:

Given the fact that 95% of dairy is exported overseas, we will be talking to international consumers and show them how their dairy is produced. We want to see how consumers are going to react when they find out the cruelty behind New Zealand’s dairy industry. 

[27]  The item returned to the interview between the reporter and Fonterra Group Director:

Group Director: Yeah pretty disappointed, if that is how the dairy industry is going to be portrayed.

Reporter: You say portrayed – but do you accept that that’s how it is?

Group Director: No I don’t... I think it’s a very small minority of how the dairy industry in New Zealand operates... the vast majority of our farmers operate responsibly and this is really sad to see this footage come to light.

Reporter: You say a small minority, but [Farm Watch] did film right across the Waikato and they said everywhere they went, they saw cruelty. It doesn’t sound small.

Group Director: No, it doesn’t sound small the way you outline it like that, but let’s talk to SAFE, let’s understand what they have got, let’s understand the farmers they went to and we’ll come down on them, because that’s not great. MPI have a responsibility to step up and do something about this, and we’ll work very closely with MPI to ensure they do.

Reporter: If a bunch of enthusiasts with a camera managed to pick all that up, whereas a main player in a 15 billion dollar industry didn’t, what went wrong for Fonterra?

Group Director: Well I don’t think its Fonterra, I think the whole industry needs to take a look at itself in this case. We have MPI as the regulator... we have the meat industry, the transport operators, the dairy companies association of New Zealand, and of course DairyNZ... You can’t hide behind the fact of what we’ve seen... it is very disappointing the footage we’ve picked up on and we need to fix it. The industry needs to take some responsibility to resolve this at the highest level.

Reporter: ...Do you accept that calf separation is cruel to the mother?

Group Director: There are ways to do that. There are guidelines in place that are the most humane way to do that...

[28]  The item concluded with a statement from the SAFE Executive Director, accompanied by further footage of bobby calves in crates on the roadside. The reporter put to the SAFE Executive Director, ‘New Zealanders could answer you’re being unpatriotic, because what you’re going to do potentially is undermine our economy’, to which he replied:

New Zealand claims that we have the highest animal welfare in the world, so if this is our highest animal welfare, then let’s show the rest of the world and be proud of it. And if it’s not, if we’re not that proud of it, then maybe we need to do something about it.

Freedom of expression and the public interest

[29]  Freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive information, is the starting point in our consideration of complaints. We may only interfere and uphold complaints where the limitation on the right would be reasonable and justified in a democratic society.² The first step is to consider the nature of the programme and the value that it carried in terms of both the level of public interest, and the exercise of freedom of expression.

[30]  The exposure in the Sunday broadcast of the alleged mistreatment of bobby calves by some members of New Zealand’s dairy industry carried a high level of public interest. This was an important current affairs piece that used the medium of free-to-air television to draw attention to, and inform the wider community about, a legitimate issue.

[31]  We also note that subsequent to the broadcasts, several prosecutions against companies and individuals have arisen due (at least in part) to what was revealed in footage included in the programme.³ The dairy industry has also recently initiated more stringent rules around the treatment of bobby calves.⁴ This supports the validity of what was revealed in the programme, and the impact of the broadcast in forcing positive change within the dairy industry.

[32]  This value in the programme must be weighed against the level of harm alleged to have been caused by the broadcast, in terms of the underlying objectives of the relevant broadcasting standards. The harm alleged in this case resulted from what the complainant considered to be unbalanced and inaccurate coverage of the issue. He also alleged harm was caused to the farming family’s privacy interests and to the reputation of dairy farmers in general.

Was the item sufficiently balanced?

[33]  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.⁵

[34]  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’.⁶

[35]  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’.⁷ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁸

The parties’ submissions

[36]  Mr Knight argued the programme failed to present significant points of view from representatives of the farming community, and this resulted in an ‘unbalanced look’ at dairy farming. He considered that the reporter fully supported the views put forward by Farm Watch and the cow behaviour expert (who he alleged was not an independent expert). Mr Knight argued that individual farmers, Federated Farmers, Dairy NZ, NZ Vets Association and the SPCA should have been allowed to participate in the programme to ensure the views of the animal rights activists were challenged, and to have the opportunity to defend themselves against the accusation of ‘systemic cruelty’ within the dairy industry.

[37]  Mr Knight also considered that the subsequent broadcasts pointed to by TVNZ as providing balance were of little relevance to the Sunday programme, and he felt it was unlikely many viewers of the original broadcast would have seen the later items.

[38]  TVNZ accepted that the alleged mistreatment of bobby calves by several Waikato district farms, transport operators and a slaughter-house was a controversial issue of public importance. It stated the programme was not about ‘standard practice’ on dairy farms, but was very clearly focused on the issues raised by the covert footage – that of bad practice in some parts of the dairy industry. TVNZ did not consider that the programme makers were under an obligation to ‘match’ the footage of bad practice with coverage of good or standard practice, in order to achieve balance. It maintained the bad practice was placed in context by the Fonterra representative, who very clearly stated that he thought the footage was disgusting and that it represented a ‘very small minority of how the dairy industry in New Zealand operates’. TVNZ argued that as a result of seeking views across the spectrum of the dairy industry, the requirements of the standard were met.

[39]  Regarding the cow behaviour expert, TVNZ maintained that he was independent as he was not aligned with the dairy industry or SAFE. It argued he had suitable professional qualifications and scientific expertise, and noted that in any event, the expert’s comments about calf separation were balanced by the comments from the Fonterra representative.

[40]  TVNZ also noted that a wide range of viewpoints was presented in a variety of its news and current affairs programmes over the period of current interest. For example, it pointed to an interview with the Chief Executive of Dairy New Zealand broadcast on Breakfast the morning following the Sunday item, and an interview with a Waikato farmer broadcast on Seven Sharp several days later.

Our analysis

[41]  This aspect of the complaint raises similar issues to those addressed in the Authority’s decision RZ and Television New Zealand Ltd,⁹ which also considered the Sunday programme of 29 November 2015. In that case we found that the alleged mistreatment of bobby calves by some members of New Zealand’s dairy industry was a controversial issue of public importance, and that balance was achieved in the following ways:¹⁰

• the inclusion in the story of extensive comment from a representative of Fonterra on behalf of the dairy industry
• the use of ‘devil’s advocate’ questioning, and challenging of the Farm Watch representative, by the reporter
• the inclusion in the item of comment from the owner of the slaughter-house where the cruel treatment of bobby calves was allegedly taking place
• numerous follow-up items on the issue broadcast on TV ONE which presented the position of the dairy industry.

[42]  We consider our reasoning in the RZ decision is also applicable in this case. In our view, the Fonterra representative was a strong advocate for many in the dairy industry, including farmers. For example, when asked by the reporter, ‘Do you accept that’s how it [New Zealand’s dairy industry] is?’ (in response to the SAFE Executive Director’s reference to the ‘cruelty behind New Zealand’s dairy industry’), the Fonterra representative stated:

No, I don’t... I think it is a very small minority of how the dairy industry in New Zealand operates... the vast majority of our farmers operate responsibly and this is really sad to see this footage come to light.

[43]  Regarding Mr Knight’s concerns about the choice to feature the Fonterra representative, and the particular cow behaviour expert, we note that Standard 4 does not prescribe how balance is to be achieved or who should give comment on any given issue – that is an editorial decision for the broadcaster. We are satisfied the Fonterra representative was able to articulate the industry’s point of view, as well as provide balancing comment to that of the cow behaviour expert regarding the practice of calf separation. For example, in response to the reporter’s question, ‘Do you accept that calf separation is cruel to the mother?’ the Fonterra representative stated, ‘There are ways to do that. There are guidelines in place that are the most humane way to do that’.

[44]  We do not think the reporter ‘fully supported’ the views of the animal rights activists, as alleged by the complainant. To the contrary, the Farm Watch representative was subjected to rigorous ‘devil’s advocate’ questioning by the reporter. For example, the reporter asked the representative, ‘Have you got a thing about... dairy farmers then?’ and also challenged his position, saying, ‘Farmers would say that footage was selective; that many farmers are good to their animals’. This line of questioning not only scrutinised the Farm Watch investigation, but also alerted viewers to the perspective of those in the dairy industry.

[45]  Regarding subsequent broadcasts on the topic, we again consider it appropriate to follow our findings in RZ:¹¹

The position of the dairy industry was presented in various broadcasts within the period of current interest. For example, the Chief Executive of DairyNZ was interviewed on Breakfast the following morning. Among other things, he discussed feedback from farmers that they were appalled at the conduct depicted in the video footage but believed the item did not provide enough balance. He also asserted that most farmers care about their animals and that work needs to be done in the industry to deal with irresponsible farmers.

While we acknowledge that Breakfast may attract a different viewing audience to Sunday, Standard 4 allows broadcasters to achieve balance outside of the original broadcast, within the period of current interest. This interview, along with the other items referred to by TVNZ... helped to remedy any perceived lack of balance in the original item by further elaborating on the dairy industry’s perspective, and in our view TVNZ has demonstrated that it satisfied its obligations under Standard 4.

[46]  In response to the complainant’s concerns about the lack of relevance of subsequent broadcasts, we consider they had direct relevance to the item in question. The interview with the DairyNZ Chief Executive included his response, on behalf of farmers and the dairy industry, to the allegations contained in the broadcast. He stated that the footage of mistreatment of bobby calves represented ‘0.001’ per cent of farmers and that 95 per cent of farmers comply with regulations. A Seven Sharp item broadcast several days later also featured an interview with a Waikato farmer, who discussed his (viral) video made in response to the item, which attacked those individuals shown in the footage and also emphasised that they did not represent most farmers.

[47]  For these reasons, we do not uphold the complaint under Standard 4.

Was the broadcast inaccurate or misleading?

[48]  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.¹²

[49]  Mr Knight argued the programme was inaccurate and misleading in a number of respects. His arguments, the broadcaster’s response and our analysis are dealt with in turn below.

The extent of the mistreatment of bobby calves

[50]  Mr Knight argued that the item was misleading in presenting the abuse as widespread, as it did not disclose how many farms were actually subject to surveillance by the animal activists and showed abuse by transport operators, which was outside farmers’ control.

[51]  TVNZ argued that the programme followed the life cycle of bobby calves in two parts – the standard practice of calf separation and the cases of animal abuse. It considered these two themes were clearly separated in the programme and there was no implication that all dairy farmers abused their animals.

[52]  We do not consider that the programme exaggerated the extent of the alleged abuse within the dairy industry, such that it could be said to have misled viewers. From the outset of the programme, the allegations of cruelty within the dairy industry were framed as the animal activists’ perspective and as relying on the evidence these groups had gathered. It was made clear that only some farms and transport operators, and one slaughter-house, and only within the Waikato region, were subject to surveillance. The focus of the item was not necessarily on farmers, but on the wider dairy industry, and featured other industry workers such as slaughter-house employees and transport operators. There was evidently some merit in accusations of mistreatment of bobby calves by some participants in the dairy industry, as demonstrated by the MPI investigation and resulting prosecutions.

[53]  The purpose of the item was to highlight and attempt to expose instances of bad practice within the wider dairy industry, rather than to present a comprehensive look at everyday operations across the industry. As addressed above in our discussion of the balance standard at paragraph [42], the programme included comment from individuals such as the Fonterra representative who disputed that there was a widespread problem within the dairy industry, so viewers were not left with a misleading impression of the extent of the problem.

The slaughter-house footage

[54]  Mr Knight considered the footage from the slaughter-house was an unrepresentative and inaccurate portrayal of how animals are slaughtered. He pointed out that less than 2 per cent of all bobby calves are slaughtered for pet food, and the vast majority of these are slaughtered humanely at locations that are constantly monitored and inspected. 

[55]  TVNZ argued that the programme did not imply that all bobby calves are sent to the slaughter-house and this would not have been the impression created for viewers. TVNZ maintained that while calves may be slaughtered humanely in other slaughter-houses, the footage depicted what was occurring in the particular slaughter-house in this instance.

[56]  We agree with the broadcaster that the item did not state or imply that all bobby calves are slaughtered for pet food. The reporter clearly said, ‘These bobby calves are bound for pet food’ [our emphasis], and focused on the experience of these particular calves. While the abuse suffered by the calves at the specified slaughter-house may have been one extreme, and many slaughter-houses may operate responsibly, the footage was a crucial component of the programme’s exposé of the mistreatment of bobby calves by some participants in the dairy industry. As TVNZ noted in its submissions, this slaughter-house footage resulted in a criminal prosecution of the relevant employee for animal cruelty, which demonstrates the high public interest and value in the footage.

Statements made by the cow behaviour expert and bobby calf sanctuary owner

[57]  Mr Knight considered that statements made by the cow behaviour expert and the bobby calf sanctuary owner regarding calf separation and cow behaviour were misleading and ‘dramatised, emotive and exaggerated’. These comments included that a cow appeared ‘clearly distressed by the removal of her calf’ (cow behaviour expert) and that cows were ‘very complex’ creatures who ‘all know their name’ (bobby calf sanctuary owner).

[58]  TVNZ said these comments were presented as the opinion and analysis of the cow behaviour expert and sanctuary owner, and considered it would have been clear to viewers they were discussing cow behaviour and dairy farming from their perspective.

[59]  Guideline 5a states that the accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion. We think it was clear that these individuals were offering their own opinion and analysis of cow behaviour, and as such these statements were exempt from the requirement to be accurate.

Footage of bobby calves in roadside crates

[60]  Mr Knight argued this footage was misleading, as there was no explanation of why the calves had died. He said that calves that are stillborn, for example, are often left on the roadside for collection.

[61]  TVNZ maintained that this footage was not misleading and merely showed some bobby calves being left all day in the sun without being fed, which it said was contrary to the expectations of the Animal Welfare Act that calves should be fed at regular intervals.

[62]  We have carefully assessed the relevant footage. The calves appeared listless and unwell, but they were shown as still alive. Therefore this footage was not misleading in the way alleged by the complainant.

Timing of the Farm Watch investigation

[63]  Mr Knight considered the programme misled the public to think the Farm Watch investigation into alleged cruel treatment of bobby calves had occurred recently, whereas in fact the investigation started in the 2014 calving season and the activists had evidence of animal abuse for more than a year before they took action, which was not disclosed in the programme.

[64]  TVNZ argued that the programme legitimately presented this issue as an ongoing problem (and referred to an MPI report from 2011 which identified problems that appeared to not have been addressed). It said the footage showed incidents which had occurred in 2014 and 2015, and the footage of bobby calves in roadside cages was watermarked with 2015 dates.

[65]  The investigation resulting in this item appears to have occurred during 2014 and 2015. The ‘2015’ date was evident on some of the footage included in the item. The programme was then broadcast in November 2015. Given the criminal prosecutions that have occurred in 2016 and the recent MPI investigation, the programme dealt with what seems to be an ongoing issue. Therefore we are satisfied the programme was not based on an outdated investigation and was not otherwise misleading in this regard.

Conclusion on accuracy

[66]  Overall, we find the item was not inaccurate or misleading in the ways alleged by the complainant, and we do not uphold the complaint under Standard 5.

Did the broadcast breach the local farming family’s privacy?

[67]  The privacy standard (Standard 3) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs. This is in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships and opinions away from the glare of publicity.

The parties’ submissions

[68]  Mr Knight argued that the footage of a newly born calf in a muddy field breached the privacy of a local farming family, as the footage was taken on their farm. He said the family readily identified the footage of their farm and ‘there is no doubt adjoining neighbours would have done so. Farms in the Waikato are almost exclusively stocked with Friesian cows so a farm with Jersey cows would make recognition that much easier’. Mr Knight maintained the inclusion of the family’s farm in a programme alleging animal cruelty was a ‘gross invasion’ of their privacy and highly offensive to them, as a ‘well respected farming family’ who have ‘done absolutely nothing wrong’. He questioned why, if the footage merely showed normal farming practice, it was included in a programme alleging animal cruelty.

[69]  TVNZ referred to the Authority’s previous finding that the right to privacy attaches to a person, not to property.¹³ It did not consider that the farming family was identifiable in this case, as they did not feature in the footage and the footage of their farm was too brief and of such a similar nature to the other images of different farms in the programme for identification to take place. TVNZ noted that there was no implication in the footage that there had been any abuse of the cows or calf. It further argued that the family had publicly identified themselves in association with the footage and the programme in local media.

Our analysis

[70]  When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. The Authority has previously stated that an address must be linked to an ‘identifiable individual’ before a broadcast could be said to have breached Standard 3.¹⁴ This is because the right to privacy is an individual right; it attaches to a person, not to property.

[71]  In this case, the particular farming family had no involvement with the programme. They were not filmed nor referred to during the broadcast. The footage of their farm comprised a generic shot of cows and calves in a muddy paddock, was insufficiently distinguishable from other farms featured in the item to identify the family by association. We do not consider the farm would have been recognisable to the majority of viewers as belonging to the particular family – only a select few who were intimately familiar with the property would have been able to draw this conclusion.

[72]  On the basis they were not identifiable in the programme, we find that the family’s privacy was not breached and do not uphold this part of the complaint.

Did the broadcaster exercise adequate care and discretion when dealing with the issue of violence?

[73]  The violence standard (Standard 10) states that broadcasters should exercise care and discretion when dealing with the issue of violence.

The parties’ submissions

[74]  Mr Knight argued that the footage from the slaughter-house showed ‘an extreme act of violence’. He considered the footage constituted a ‘horror film to arouse public hostility towards dairy farmers’. Mr Knight maintained it was not in the public interest to broadcast this footage, because the abuse was not an ongoing problem (as the temporary employee responsible was no longer employed by the slaughter-house) and because the violence was unrepresentative of the dairy industry.

[75] TVNZ argued that it was in the public interest to show the footage from the slaughter-house, as the footage resulted in a prosecution of the relevant employee. It maintained that the footage broadcast was carefully selected, and that sufficient discretion was exercised, noting that the worst violence was not shown, some footage was blurred, and a warning was given at the beginning of the item.

Our analysis

[76]  We consider the broadcaster exercised adequate care and discretion in showing the violence against bobby calves. We acknowledge that some viewers may have found this footage confronting, as it depicted the cruel treatment of bobby calves by a slaughter-house employee. However, as discussed above, the footage was a crucial component of the programme’s exposé of the mistreatment of bobby calves and has resulted in a criminal prosecution of the relevant employee for animal cruelty. The footage therefore carried high public interest and value.

[77]  Furthermore, the broadcaster took several steps to mitigate the impact of the footage. These included the written warning for potentially disturbing content at the beginning of the item and the censoring of the footage so the worst acts of violence were either blurred out or not broadcast. The footage comprised approximately one-and-a-half-minutes in the context of an item that was 22 minutes in length, so it did not dominate the programme.

[78]  Sunday is a current affairs programme targeted at an adult audience, and given the subject matter of the item we do not consider viewers would have been unduly disturbed by the footage. In this context we are satisfied that the broadcaster exercised adequate care and discretion in broadcasting the footage of cruelty against bobby calves.

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

Did the item breach any other broadcasting standards?

[80]  Mr Knight also raised the discrimination and denigration and fairness standards in his complaint.

[81]  In summary, these standards were either not applicable or not breached because:

• The discrimination and denigration standard only applies to recognised sections of the community,¹⁵ and ‘dairy farmers’ as an industry do not fall into this category (Standard 7).
• The complainant did not specify an individual or organisation who he considered was treated unfairly (Standard 6).

[82]  We therefore do not uphold these aspects of the complaint.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Leigh Pearson
Member 
22 August 2016

Appendix 

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

1     Richard Knight’s formal complaint (and earlier correspondence with TVNZ in relation to the formal   complaint) – 19 February 2016
2     TVNZ’s response to the complaint – 15 March 2016
3     Mr Knight’s referral to the Authority – 8 April 2016
4     Mr Knight’s further comments in support of his referral – 10 May 2016
5     TVNZ’s response to the Authority – 10 June 2016
6     Mr Knight’s final comments – 24 June 2016
7     TVNZ’s final comments – 15 July 2016
8     Mr Knight’s additional comments – 19 July 2016

¹ This complaint was determined under the previous Free-to-Air Television Code, which applied up until 31 March 2016. The new Broadcasting Standards in New Zealand Codebook took effect on 1 April 2016 and applies to any programmes broadcast on or after that date: http://bsa.govt.nz/standards/overview

² See sections 5 and 14 of the New Zealand Bill of Rights Act 1990

³ For example, see http://www.stuff.co.nz/business/farming/80655872/Man-pleads-guilty-to-very-serious-bobby-calf-mistreatment-charges

⁴ See http://www.mpi.govt.nz/law-and-policy/legal-overviews/animal-welfare/  

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

⁶ 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)

⁷ Powell and CanWest TVWorks Ltd, Decision No. 2005-125

⁸ See, for example, Dewe and TVWorks Ltd, Decision No. 2008-076

⁹ Decision No. 2016-011

¹⁰ See paragraphs [52] to [57]

¹¹ See paragraphs [56]-[57]

¹² Bush and Television New Zealand Ltd, Decision No. 2010-036 

¹³ See, for example, QS and Television New Zealand Ltd, Decision No. 2014-042

¹⁴ As above

¹⁵ These are consistent with the grounds for discrimination listed in the Human Rights Act 1993.