BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

Two items broadcast on Te Karere reported on Green MP Marama Davidson’s experiences as part of the ‘Women’s Boat to Gaza’ protest, which aimed to draw attention to Israel’s naval blockade of Gaza. The Authority upheld a complaint that the reporter’s reference during the first item to the ‘illegal’ Israeli blockade was inaccurate. The legality of the blockade was a contentious and unresolved issue, with two UN reports taking conflicting positions on the point. The Authority therefore considered that the broadcaster should have qualified its statement with reference to the disputed legality of the blockade, rather than referring to it unequivocally as illegal. The Authority did not uphold the complaint under the balance standard that pro-Israeli viewpoints were omitted from the broadcast, noting that a later broadcast of Te Karere returned to Ms Davidson’s story, and featured an Israeli advocate who provided alternative viewpoints to those expressed in the earlier broadcasts, which was sufficient. While the Authority accepted that precise language was required in relation to ongoing international disputes such as the Israeli-Palestinian conflict, it determined that its decision provided adequate guidance to broadcasters and made no order.

Upheld: Accuracy; Not Upheld: Balance; No Order

Introduction

[1]  Two items on Te Karere reported on Green MP Marama Davidson’s experiences as part of the ‘Women’s Boat to Gaza’ protest, which aimed to draw attention to the naval blockade of the Gaza Strip and what the presenter referred to as ‘the humanitarian crisis’ there. The first item focused on Ms Davidson preparing to leave for Gaza. During the item, the reporter referred to Ms Davidson and her family’s concerns about her safety, and the group’s mission to ‘break the illegal blockade of the Israelis’.

[2]  The second item reported on the Green Party’s calls to the Israeli Government to release Ms Davidson after she was detained when the Women’s Boat to Gaza was intercepted in international waters. During this item, Green Party co-leader Metiria Turei also referred to ‘the illegal blockade of Gaza’.

[3]  Juliet Moses complained that the references to the blockade as ‘illegal’, and references to Gaza as ‘a daily war zone’ and a ‘dangerous situation’, were false and misleading. She also complained that the items were unbalanced, as no pro-Israeli perspective was presented to viewers.

[4]  The issue raised in Ms Moses’ complaint is whether the broadcast breached the accuracy and balance standards, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[5]  The items were broadcast at 4pm on 22 September 2016 on TV ONE, and 6 October 2016 on TVNZ 1. The members of the Authority have viewed recordings of the broadcasts complained about and have read the correspondence listed in the Appendix.

Background

[6]  Ms Moses’ complaint relates to highly contentious issues surrounding the Israeli-Palestinian conflict. Ms Moses’ primary concerns are that the broadcaster’s reference to the ‘illegal’ naval blockade of Gaza by Israel was incorrect, and that no viewpoints were provided during the items to counter this view, or to address the underlying reasons for the conflict.

[7]  Our understanding of the background is that, following the takeover of the Gaza Strip by Hamas in June 2007, Israel tightened the restrictions which had been imposed on the area since the 1990s. Citing security concerns, Israel enforced a land, sea and air blockade on Gaza, with support from Egypt.¹ While Israel states that these restrictions have since been relaxed, it has received ongoing and widespread criticism for the blockade on humanitarian grounds.²

[8]  In May 2010, the ‘Gaza Freedom Flotilla’, which aimed to carry humanitarian aid to Gaza in breach of the Israeli naval blockade, was raided by Israeli forces in international waters. Nine passengers were killed and others wounded as a result of the takeover.³

[9]  A fact-finding mission of the United Nations (UN) Human Rights Council was established to investigate the incident, with a report published in September 2010 (HRC Report).⁴ The Council found that a humanitarian crisis existed in Gaza at the time of the incident, and ‘One of the consequences flowing from this is that for this reason alone the blockade is unlawful and cannot be sustained in law.’⁵ The Council accepted Israel’s entitlement to peace and security, but found ‘any action in response which constitutes collective punishment of the civilian population in Gaza is not lawful in any circumstances’.

[10]  A UN Panel of Inquiry was announced in August 2010, led by Sir Geoffrey Palmer (the Palmer Report), which found in September 2011 that the Israeli naval blockade of Gaza was legal, but that Israel used excessive force during the incident.⁶ This finding was rejected by a UN Human Rights Council panel of five independent human rights experts.⁷

[11]  Against this background we turn to consider the issues raised in Ms Moses’ complaint.

Was the broadcast inaccurate or misleading?

[12]  The accuracy standard (Standard 9) 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 being significantly misinformed. The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.⁸

The parties’ submissions

[13]  Ms Moses submitted that:

• The leading authority on the legality of the Gaza blockade was the Palmer Report. It was therefore inaccurate to state during the items that the blockade was illegal, when it should have been referred to as legal, or at least ‘disputed’ or ‘debated’. This would have ‘changed many viewers’ perception of this mission’.
• The references to Gaza as a ‘daily war zone’, and to Ms Davidson entering ‘a dangerous situation’, combined with footage of bombed buildings, implied Gaza was being attacked on a daily basis which was also false.

[14]  TVNZ submitted that:

• The HRC Report and comment from the UN Human Rights Council panel disputed the findings of the Palmer Report regarding the legality of the Gaza blockade.
• In any event, each side of the Israeli-Palestinian dispute ‘has a position which can be backed by findings from well-respected experts’. Given the clear viewpoint of the story (from Ms Davidson’s perspective), it could be argued that the comment on the legality of the blockade was ‘an opinion or analysis of the situation from the facts relied upon’.
• Regarding Ms Turei’s comment on the illegality of the blockade, this was clearly distinguishable as her own opinion on the issue, and was therefore not subject to the accuracy standard.
• There had been numerous international reports of bombing in Gaza in the last year, and it was therefore not misleading to use footage of the aftermath of such bombings.

[15]  In her response, Ms Moses stated that it was not the role of the broadcaster to determine the legality of the blockade, but ‘to present facts and allow the audience to reach its own opinion, or research the matter further if inclined to do so’.

Our analysis

Legality of blockade

[16]  The first question is whether the reporter’s and Ms Turei’s comments regarding the illegality of the Gaza blockade amounted to material points of fact that were subject to the accuracy standard.

[17]  We consider that Ms Turei’s statement in the second item was distinguishable as her own analysis, comment or opinion,⁹ and was therefore not a material point of fact to which the accuracy standard applied. Her comments were made in the context of reporting the Green Party’s reaction to Ms Davidson being detained in Israel, and was clearly made from the party’s particular perspective on the situation.

[18]  Conversely, the reporter’s comment in the first item that the blockade was ‘illegal’ in our view amounted to a material point of fact. The purpose of the Women’s Boat mission was to highlight the lack of aid being allowed through the blockade to Gaza, and it was also against this background that Ms Davidson’s detainment was reported.

[19]  It is not the role of this Authority to make a finding of fact on the legal status of the blockade, or whether the HRC Report, or the Palmer Report, is the leading authority on the issue. We are concerned only with whether the broadcaster made reasonable efforts to ensure the accuracy of the statement, and to ensure the items did not mislead viewers.

[20]  As submitted by the parties, it is evident from the sources cited by both the broadcaster and the complainant that the legality of the blockade is a controversial issue which has attracted considerable debate. There are differing views on both sides, and reputable and authoritative sources exist in support of both views. The existence of two directly conflicting UN reports – the Palmer Report and the HRC Report – as well as a number of other articles and news items, reflects this.¹⁰

[21]  Given consensus on the legal issues has not been reached, we consider that it was misleading for the reporter to assert that the blockade was ‘illegal’, without explaining that this was in dispute, or referring to a source for this assertion. This reference, without qualification, had the potential to impact on the audience’s understanding of the items as a whole; for example, viewers’ perceptions of whether Israeli actions in intercepting and detaining past flotillas (22 September item) and the Women’s Boat to Gaza (6 October item), were justified and reasonable, could be affected by the reporter’s definitive reference to the ‘illegal blockade’.

[22]  Where there are conflicting views on international issues, broadcasters should take care to highlight where there is debate or contention to avoid viewers being misled by statements asserting that either position is definitively correct. In relation to the Israeli-Palestinian conflict, precision is important when making statements of fact.¹¹ For this reason we are satisfied that we are not unreasonably limiting the broadcaster’s right to freedom of expression, and we uphold this aspect of the accuracy complaint. We do not however propose to make any order, for the reasons outlined at paragraph [43] below.

‘Daily war zone’ / ‘Dangerous situation’

[23]  During the first item, the reporter described Ms Davidson and her family’s concerns about travelling to Gaza, which was referred to as a ‘daily war zone’ and a ‘dangerous situation’.

[24]  We do not consider that these comments would have been interpreted by most viewers in the manner alleged by the complainant. Viewers could reasonably be expected to be aware that violence is committed against, and by, both sides to this conflict, and the reporter’s comments did not imply that such violence was committed by the Israeli side only. We consider that the reporter’s statements simply summarised Ms Davidson’s and her family’s concerns about travelling to the region, in terms of her own safety.

[25]  We therefore do not uphold this aspect of Ms Moses’ complaint.

Was the item sufficiently balanced?

[26]  The balance standard (Standard 8) 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 viewpoints about significant issues are presented to enable to the audience to arrive at an informed and reasoned opinion.

The parties’ submissions

[27]  Ms Moses submitted that no alternative viewpoint was presented either during the item, or within the period of current interest, to counter the views presented by Ms Davidson and others during the items. Ms Moses listed a number of alternative viewpoints that she considered should have been highlighted, which would have helped viewers to understand that the issue was ‘highly complex, and Israel is not by any stretch entirely to blame for the predicament of the Gazans’.

[28]  TVNZ submitted that:

• The item broadcast on 22 September 2016 was narrowly focused on Ms Davidson’s view on her trip to Gaza and therefore did not amount to a discussion of a controversial issue of public importance.¹²
• The broadcast of 6 October 2016 concerned Ms Davidson and the Green Party’s perspective on Ms Davidson’s detainment, which was approached from a particular political perspective and covered extensively by news media. Viewers could therefore be expected to be aware of other views.
• The broadcaster attempted to contact Friends of Israel for comment but was unable to do so within the required deadline. However, a later item featured on Te Karere on 11 October 2016 gave an Israeli perspective on the issues.

[29]  In response to TVNZ’s argument that balance was provided in the item on 11 October 2016, Ms Moses noted that this was 19 days after the first item. In any event, she said, the comments provided in the later item were brief and did not address the underlying issues, such as the risks to Israel’s security and the impact of Hamas.

Our analysis

[30]  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 that 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’.¹³

[31]  Our first consideration is therefore whether these items amounted to discussion of a controversial issue of public importance.

[32]  The decision cited by the broadcaster in support of its submissions, Bolot and Television New Zealand,¹⁴ was a similar profile piece about a protestor and his decision to join a humanitarian aid flotilla to Gaza. The item focused on the protestor’s motivations and concerns, but also referenced the 2010 Gaza flotilla incident and the lack of aid getting to Gaza through the blockade. In that case, the Authority took a narrow view of what constituted discussion of a controversial issue of public importance, and did not uphold the balance complaint on the basis that, as a personal profile piece, the item did not trigger the requirement to provide balance.

[33]  Having carefully considered the content of the two Te Karere items, we consider that a broader view of what constitutes a controversial issue of public importance is appropriate in this case. While these items did in some ways come across as profile pieces about Ms Davidson personally (which in some cases may not amount to a discussion of a controversial issue of public importance), they went beyond simply covering Ms Davidson’s own experiences and views, using Ms Davidson’s involvement with the Women’s Boat to Gaza as a starting point to explore other issues. For example, the items included discussion of the past actions of Israeli forces in intercepting and detaining past aid flotillas. We find that the items’ discussion of Ms Davidson’s mission, in combination with commentary on Israeli enforcement of the navy blockade, amounted to a discussion of a controversial issue of public importance, which required the presentation of alternative views.

[34]  The next question then, is whether alternative viewpoints were provided, either in the same programme, or in other programmes within the period of current interest.¹⁵

[35]  The Te Karere item pointed to by the broadcaster, broadcast on 11 October 2016, featured an interview with a ‘Māori Israeli advocate’. While this item did contain further interviews with Ms Davidson, who provided her point of view on the conflict, the item also included a number of alternative viewpoints to those expressed by Davidson, including:

• ‘...a Māori Israeli advocate says Davidson may have been swayed by incorrect rhetoric and encourages people to see this situation through the eyes of the Israeli people.’ (Newsreader)
• ‘Allegations of the cruelty and inhumanity of Israelis at the Gaza navy blockade are inaccurate. That’s according to [the advocate] who says that despite what is known about the situation, there’s more than meets the eye.’ (Reporter)
• ‘Everybody wants peace, non-violence. Everybody wants to help the women... the Jewish people, the Israelis – that’s what they want. But there are two sides to this conflict.’ (Advocate)
• ‘She said the world is “falling victim to war-mongering rhetoric and propaganda”.’ (Reporter, referring to the advocate)
• ‘[The advocate] says the Gaza navy blockade is UN-sanctioned, but Davidson disagrees.’ (Reporter)
• ‘With such a complicated issue, who can tell who is right? Perhaps an open mind is all that can be offered from the outside looking in.’ (Reporter, concluding the item).

[36]  While the 11 October item was broadcast 19 days after the first item, it was broadcast only five days after the item relating to Ms Davidson’s detainment, and reported on developments in that situation. There was also substantial coverage by other media, much of it critical of Ms Davidson’s actions, around that time.¹⁶ Therefore at the time of the 11 October item, the period of current interest remained open, in which balance could be provided. We are satisfied that the third Te Karere item adequately presented the Israeli point-of-view through the comments above, and provided sufficient balance.¹⁷

[37]  While the complainant submitted that other points should have been raised during the items, we do not consider that viewers would have been left uninformed by the omission of a more detailed examination of the underlying reasons for the Israeli-Palestinian conflict, particularly in the context of these brief news items which, while they did cover other issues, focused primarily on Ms Davidson’s story. Viewers generally are aware that the Israeli-Palestinian conflict is an ongoing, controversial issue, which is fraught and complex. The 11 October item also highlighted the complex nature of the conflict and encouraged viewers to keep an open mind about its causes.

[38]  Accordingly, we do not uphold the balance complaint.

Final comments

[39]  We are conscious that complaints on contentious issues, such as this conflict, may carry an element of campaigning for public opinion. Often such complaints will focus on aspects of an item that do not align with the complainant’s beliefs or political views, or will identify different views or information that the complainant would have preferred to be included in a broadcast. These types of concerns may not always necessarily raise matters of broadcasting standards on which we can make a finding. It also does not automatically follow that these concerns will result in a broadcast being unbalanced, inaccurate or unfair. Having said that, in this case we have found that more care ought to have been taken to accurately describe a contentious issue in these Te Karere broadcasts. We will continue to assess all complaints on their particular facts.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Te Karere on 22 September 2016 breached Standard 9 of the Free-to-Air Television Code of Broadcasting Practice.

[40]  Having upheld part of the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. While we have acknowledged that the broadcaster should have been more precise on one point and upheld the accuracy complaint on that basis, we do not consider that any order is warranted in this case.

[41]  Our decision clarifies our expectation that precise language should be used in relation to issues which are contentious or debated. Broadcasters should refrain from making unequivocal statements of fact on issues that are the subject of international dispute, to ensure viewers are not misled. This is particularly so in relation to the Israeli-Palestinian conflict, where a broadcaster’s use of labels and descriptions can have a significant impact on the audience’s understanding of, and views on, the conflict.¹⁸ We therefore consider that our decision provides sufficient redress and guidance, and we make no order in the circumstances.

Signed for and on behalf of the Authority

Peter Radich
Chair
17 March 2017

Appendix

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

1      Juliet Moses’ formal complaint – 26 September 2016 and 11 October 2016
2       TVNZ’s responses to the complaints – 25 October 2016, 7 November 2016 and 8 November 2016
3      Ms Moses’ referral to the Authority – 22 November 2016
4      TVNZ’s further comments – 3 February 2017
5      Ms Moses’ final comments – 17 February 2017
6      TVNZ’s confirmation of no further comment – 24 February 2017

¹Primer on Palestine, Israel and the Arab-Israeli Conflict (Middle East Research and Information Project, February 2014); Gaza One Year On (United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA), July 2015); Fact Sheet: Israel's 'Blockade' of Gaza (Jewish Virtual Library, November 2016)
² See, for example: Path to Middle East peace 'riddled with hazards', UN envoy tells Security Council (UN News Centre, 16 February 2017);  Gaza Blockade (UNOCHA, 2017); The Gaza Strip: The Humanitarian Impact of the Blockade (UNOCHA, November 2016); Where we work: Gaza Strip (United Nations Relief and Works Agency (UNRWA), 31 October 2016); UN independent panel rules Israel blockade of Gaza illegal (Haaretz, 13 September 2011); ICRC says Israel's Gaza blockade breaks law (BBC News, 14 June 2010);  UN envoy Tutu calls Gaza blockade illegal (Reuters World News, 28 May 2008)
³UN chief receives report of panel of inquiry into Gaza flotilla incident (UN News Centre, 2 September 2011)
⁴Israeli action against Gaza flotilla 'unlawful' - UN Human Rights Council panel (UN News Centre, 23 September 2010)
⁵ Human Rights Council Report, September 2010, at page 53: http://www2.ohchr.org/english/bodies/hrcouncil/docs/15session/A.HRC.15.21_en.pdf 
⁶ Report of the Panel of Inquiry on the 31 May 2010 Flotilla Incident - September 2011, at pages 3-4: http://www.un.org/News/dh/infocus/middle_east/Gaza_Flotilla_Panel_Report.pdf 
⁷UN agency renews funding appeal for emergency programmes in Gaza (UN News Centre, 13 September 2011)
⁸ Guideline 9a
⁹ Guideline 9a
¹⁰ See, for example: The Legality of the Israeli Naval Blockade of the Gaza Strip  (Spelman, E., 19(1) Web JCLI, European Journal of Current Legal Issues, 2013) Recolonising international law: Israel's naval blockade against Gaza (Azeezah Kanji, Open Democracy, 20 August 2015); Israel & international law: the siege and blockade of Gaza (Institute for Middle East Understanding, April 2015); The legal basis of Israel's naval blockade of Gaza  (Prof. Ruth Lapidoth, Jerusalem Center for Public Affairs, Vol.10, No. 4, July 18 2010);  International law at the vanishing point (Middle East Research and Information Project, 2006)
¹¹ See, for example, the BBC’s publicly released glossary, updated in 2013, for journalists in relation to reporting on the conflict: http://www.bbc.co.uk/academy/journalism/article/art20130702112133696
¹² Citing Bolot and Television New Zealand, Decision No. 2010-149
¹³ 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)
¹⁴ Decision No. 2010-149
¹⁵ Broadcasting Standards in New Zealand Codebook, Standard 8 – Balance, page 39
¹⁶ See, for example: PM: Green MP Marama Davidson's detention in Israel "a less than perfect look" (NZ Herald, 6 October 2016); Green MP Marama Davidson slammed for Gaza stunt after Israel detention (stuff.co.nz, 7 October 2016); Green Party MP Marama Davidson heading home after release from Israeli detention centre (NZ Herald, 7 October 2016); Marama Davidson back home after Gaza protest (newshub.co.nz, 8 October 2016); MP Marama Davidson’s Gaza protest an embarrassment to Māori (Scoop, 10 October 2016)
¹⁷ Broadcasting Standards in New Zealand Codebook, commentary on the balance standard, page 18
¹⁸ Also see, for example, Wellington Palestine Group and MediaWorks TV Ltd (Decision No. 2016-048)