BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An episode of the radio documentary series, Insight, titled ‘Will cameras end commercial fish dumping’, discussed the issue of whether the quota management system (QMS) was contributing to illegal fish dumping practices in the commercial fishing industry and whether camera monitoring could be used to improve this issue. The episode featured an interview with Dr Russel Norman, the Executive Director of Greenpeace NZ, who described a camera monitoring trial run by the Ministry for Primary Industries (MPI) and undertaken by Trident Systems (Trident) and an independent research company, Archipelago. Dr Norman said that, during the trial, Archipelago found ‘lots of illegal behaviour, dumping, killing of Hector’s dolphins’, while Trident ‘found nothing’. Dr Norman then suggested that MPI awarded a contract to Trident for filming of a commercial fishery because of these results. The Authority found that, by not giving Trident the opportunity to respond to this allegation, the item was unfair. However, the Authority found that Dr Norman’s statement was based on records of the trial and on the findings of an independent inquiry into MPI’s prosecution decisions, and so his summary of those findings was not misleading or inaccurate. In the context of an item about the QMS and commercial fish dumping, the Authority found that Dr Norman’s statement, which was limited to past monitoring trials, did not amount to discussion of a controversial issue of public importance which triggered the requirements of the balance standard.

Upheld: Fairness; Not Upheld: Accuracy, Balance. Orders: Section 13(1)(a) broadcast statement on air and online; Section 16(1) $2,000 legal costs to complainant 

Introduction

[1]  An episode of the radio documentary series, Insight, titled: ‘Will cameras end commercial fish dumping’, discussed the issue of whether the quota management system (QMS) was contributing to illegal fish dumping practices in the commercial fishing industry and whether camera monitoring could be used to improve this issue.

[2]  The episode featured an interview with Dr Russel Norman, the Executive Director of Greenpeace NZ, who described a camera monitoring trial run by the Ministry for Primary Industries (MPI) and undertaken by Trident Systems (Trident) and another independent research company, Archipelago. Dr Norman said that, during the trial, Archipelago found ‘lots of illegal behaviour, dumping, killing of Hector’s dolphins’, while Trident ‘found nothing’. Dr Norman then suggested that MPI awarded a contract to Trident for filming of a commercial fishery because of these results.

[3]  Trident complained that Dr Norman’s statements were inaccurate and unbalanced, as he incorrectly summarised the results of the camera monitoring trial. Trident also complained that it was not given the opportunity to respond to Dr Norman’s allegations that Archipelago found ‘lots of illegal behaviour’, while Trident found none, or that Trident only won the contract with MPI because it found no instances of illegal behaviour during the trial.

[4]  The issues raised in Trident’s complaint are whether the broadcast breached the fairness, accuracy and balance standards as set out in the Radio Code of Broadcasting Practice.

[5]  The item was broadcast on RNZ National on 12 March 2017 and again on 13 March 2017. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The programme

[6]  This episode of Insight was introduced as follows:

Overfishing, fish dumping and what regulators are doing about it has caused constant tension between conservationists and those earning their living off the sea. Environmentalists claim the agency in charge of policing our fishery is too cosy with commercial operators and has been turning a blind eye to breaches. Fishers say they’re being unfairly targeted. RNZ’s [reporter] attempts to find out what’s going on and whether putting cameras on the entire fleet will help.

[7]  An introductory segment of the item featured a fisher who spoke about the challenges of operating under current laws, which were not practical or fit for purpose. The reporter stated:

The rules fishers are forced to play by, the quota management system, were introduced 30 years ago. They require them to pay big money in return for the right to catch a set number of fish, of a certain species and size. But commercial fishers say while it looks good on paper, they have little control over what they pull up in their nets and many are forced to illegally dump undersized fish, or those they don’t have a quota for. The system was set up to ensure sustainable fishing and is publicly lauded by those in charge.

[8]  A MPI spokesperson spoke about New Zealand’s world-leading fisheries management regime, the excellent science underpinning that regime, and the robust fisheries management system and compliance. The reporter stated that despite this, there was internal disquiet at MPI about how the system was actually working. He referred to a leaked email from MPI’s Director of Fisheries Management, who suggested that ‘over half of the inshore fleet was probably guilty of dumping fish’. However, the reporter stated, in the past 12 years, only 28 commercial operators were prosecuted for dumping.

[9]  The reporter introduced himself and the topic of the documentary, stating:

…this Insight explores the extent of fish dumping and whether new monitoring plans will make any difference. Are cameras watching every move of fishers the answer, or is the Government relying too heavily on whiz-bang technology instead of asking much harder questions such as, ‘is the quota management system still fit for purpose?’

[10]  The reporter interviewed an Auckland University researcher, who was critical of the way New Zealand’s fisheries were managed. The researcher had been involved in an international study which investigated catch rates over a 60-year period, and suggested that, since the introduction of the QMS in 1986, the number of fish landed was twice the number actually recorded, with most of these fish dumped back in the sea. The research, and the interviewed researcher, suggested that, far from ensuring the sustainability of the fishery, the QMS incentivised fish dumping:

If you’re going to restrict a fisherman’s catch, and he has to pay for the right or for the quota to catch that fish, he’s going to make sure that he lands the most valuable fish and the least valuable – or non-valuable – fish, he’s going to get rid of, he’s not going to report it.

[11]  The researcher went on to describe other criticism from senior management at MPI regarding its culture of ignoring significant levels of discarding and misreporting. The researcher said:

The problem is so big that to actually go public and admit that our world-leading – so-called world-leading – quota management system is a failure is just too big for them to deal with, so it’s better to turn a blind eye and publicly deny there is an issue. But internally, it’s an open secret.

[12]  The reporter then interviewed MPI’s Manager of Aquaculture and Fisheries Policy, who believed MPI was doing a good job of enforcing the rules around dumping and described how the QMS worked. The Manager referred to regular reviews of the QMS, including an international review undertaken by a named US academic.

[13]  The reporter next attended a talk arranged by Sanford Fisheries titled, Can we do more. The reporter noted that the above US academic, who attended the conference, received 20% of his funding from the fishing industry, and the report naming New Zealand as one of the top five countries in the world for sustainable fisheries was undertaken by five experts, four of which were connected either to MPI or to the fishing industry. The Auckland University researcher said that this called into question the validity of the study, however the academic said:

The people at MPI and the people at NIWA who do the assessments, I mean, they will spend months trying to estimate what the catch has been. I think that [the researcher] is fooling himself if he thinks that by interviewing 300 people and then extrapolating a bunch of numbers that he can do a better job than all the scientific effort that goes into each of these individual assessments.

[14]  He said fish stocks were not as dire as Greenpeace were making out, as they only looked for arguments that would support their ‘alarmist position’.

[15]  The reporter then met with Dr Russel Norman, and put to him the academic’s comments about Greenpeace’s motivations. Mr Norman commented that MPI’s internal documents showed the fishing industry were dumping half the fish they caught, and that the public deserved better to ensure the sustainability of New Zealand’s fish stock:

When you go to buy any kind of food mostly what you’re relying on is the Government regulators to do their job to protect the sustainability of the fishery, and to protect consumer’s health… We simply, as consumers, can’t go around and check everything for ourselves, we rely on the Government regulators and the problem here is that the Government regulator is working for the fishing industry and not the people of New Zealand…

[16]  The reporter then spoke to the author of the leaked MPI email, which suggested that illegal dumping was widespread. The MPI Director said:

We have the Future of our Fisheries programme underway – that is reviewing all that we do and the way that we manage our fisheries. We have the integrated electronic monitoring system underway that is going to address some other issues. We’re ahead of the curve, we’re getting on top of the game.

[17]  In response to questions about fish discarding in New Zealand, the MPI Director said that, ‘In any fishery in the world there is discarding happening.’

[18]  The reporter then said that MPI was ‘pinning its hope for a better monitored system’ on cameras on fishing boats, to assure the public and overseas markets that the industry was ‘playing by the rules’. MPI was consulting with the industry and hoping to phase in cameras on every vessel in New Zealand waters from October 2018.

[19]  The reporter said that in 2016 MPI ordered a trial of the technology on boats in the fishery known as Snapper 1. The reporter said that MPI:

…rejected a bid to run the trial from the independent market leader, the Canadian company, Archipelago. Instead, the trial was run by Trident Systems, a company wholly owned by the fishing industry, including Sanford.

[20]  The documentary then moved to an interview with the General Manager of Sanford Fisheries, who took the reporter for a tour of one of the vessels involved in the Snapper 1 trial. The reporter said that the vessel had cameras installed to look out for captures of endangered black petrel. The captain is required to keep a log book of any captures, ‘meaning the cameras are only there as a back stop’. The General Manager said that having cameras on board provided ‘independent verification’ of low capture rates.

[21]  The General Manager told the reporter that there was also no opportunity for crew to tamper with cameras. The reporter said that, as part of the trial, Trident Systems put together summaries of the footage it gathered, accounting for thirty percent of the total amount shot across the entire fishery, which were given to MPI. The General Manager said that reviews were focused on the hauling and sorting of fish, as opposed to what was happening outside that window, but MPI had ‘access to all of the footage at any time’.

[22]  The reporter then met with the Chief Executive of Trident Systems, to watch the footage gathered on another vessel. The reporter said that this demonstrated that cameras were limited in their ability to capture everything happening on the vessel. The Chief Executive explained that sometimes the camera lens, which was mounted on an arm outside of the vessel and therefore susceptible to spots of water, needed to be wiped down by crew members, saying: ‘There’s quite a high degree of cooperation required with the vessel’s crew to make video observation a viable activity’. The reporter said that it was also extremely difficult to rely on cameras to determine the size of fish, or their species, when in a net with thousands of other fish, and that MPI was aware of this.

[23]  The reporter then moved to examine where cameras have been used successfully. The first place in the world to introduce cameras was in British Columbia in Canada and the reporter spoke to an expert in the system there, asking him how successful the system had been. The reporter likened the system to the use of speed cameras, where the camera installation acted as a deterrent for illegal conduct, but the expert said that in order for the system to work, it was vital that the company operating the cameras was independent from the industry.

[24]  Back in New Zealand, the reporter said ‘it appears MPI may be coming to the same conclusion’. The reporter interviewed Trident Systems’ Chairperson, who said that despite built-in safeguards to ensure the integrity of the footage provided to MPI, its links to industry were likely to have cost it the chance to continue in the ongoing programme of electronic monitoring. He said:

…the use of electronic reporting will only be successful if industry, both quota owners and fishers, are involved in the design and implementation of systems. If that doesn’t happen – if the system’s imposed – the chances of it failing for various reasons are quite high… Trident could help, because we’ve accumulated a lot of experience in the last year and a half, which is directly relevant. So it would be nice to think that Trident has a role to play.

[25]  The reporter then asked what it would look like for the entire industry to have cameras on board vessels, and whether fishers were prepared for this level of monitoring. He spoke to fishers about their work and their views on the QMS. One particular fisher said:  

It would be very, very difficult for any in-shore fisherman in New Zealand today to go to sea and not commit a technical offence and that’s just ridiculous. There really needs to be some commitment from Government, in conjunction with industry, to sit down round the table and sort out some of these problems that have been inherent in the system since 1986 – and these are problems that can be resolved, I mean, there needs to be a much more flexible TAC [Total Allowable Catch] setting, and there needs to be a credible and practical discards policy that allows us to continue to work in an environment without breaking the law.

[26]  Another fisher spoke about the challenges presented by the QMS, such as the discard rules which required fishers to return fish under minimum size. The reporter said that both fishers believed introducing cameras, before the ‘broken quota management system’ was ‘sorted out’, would be a mistake that would unfairly penalise fishers. The Auckland University researcher agreed, stating that if cameras were introduced and monitored correctly, ‘half the fleet [would] go out of business’.

[27]  The reporter then turned to Dr Russel Norman, who commented on MPI’s past failure to prosecute illegal practices. The reporter introduced Dr Norman’s comments as follows:

Greenpeace’s Russel Norman remains sceptical about MPI’s willingness to really crack down on dumping. He points to its past record when it comes to cameras, and its failure to prosecute when fish dumping was uncovered in an early trial. This involved cameras operated by a non-industry player, Archipelago.

[28]  Dr Norman then stated:

MPI ran a trial, they ran one company Archipelago, an independent company – their video cameras versus Trident’s, a New Zealand fishing-industry-owned company that was running cameras – and what they came back and found was that Archipelago, the independent video company, found lots of illegal behaviour, dumping, killing of Hector’s dolphins, not reporting it, and Trident came back and found nothing whatsoever.

And so MPI’s next step was to award the contracts for videos in Snapper 1 to Trident, obviously because Trident passed the test, they found nothing and that’s what MPI wanted.
So it’s very hard to think that MPI, with many of the same people, is going to behave in good faith, given their past history.

[29]  The reporter went on to outline the outcome of the independent inquiry, undertaken by Michael Heron QC, of MPI’s fisheries prosecution decisions (Heron Report). The inquiry found that MPI’s decision not to prosecute illegal behaviour uncovered during the trial was flawed, but understandable, given the complexities surrounding the breaches.

[30]  The reporter said that an option being considered by MPI as part of a wider review of the quota management system was a ‘no discarding rule’, where fishers would be required to land everything they caught. This system had been implemented in Iceland and the reporter spoke to a visiting Icelandic academic and fisher, who explained that a key ingredient behind the policy’s success was the simultaneous setting up of a research fund to work out ways to make better use of the fish being landed.

[31]  The Minister for Primary Industries said that while a ‘no discarding rule’ was being looked at as part of a wider review of the QMS, there were problems with this, for example, low value fish were being taken out of the sea and put in a landfill. While changes were needed, fundamentally New Zealand’s system was a good one and the use of camera monitoring could make our world-leading system even better.

[32]  The reporter said that the Minister had advised that no decision had yet been made on which company would operate the cameras, but that the process would address ‘any conflicts of interest, real or perceived’.

Overview of findings and freedom of expression

[33]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. The right we have to express ourselves in the way we choose, and to receive information, is a fundamental freedom, but it is not an absolute freedom. It is nevertheless an important right, and we may only interfere and uphold complaints where the limitation on the right is reasonable and justified in a free and democratic society.¹

[34]   We consider this broadcast had high value in terms of the public interest and the right to freedom of expression. The documentary covered an important issue in New Zealand – whether the QMS was contributing to illegal fish dumping and the sustainability of New Zealand’s commercial fisheries, and whether the installation of cameras on all commercial fishing boats would improve this issue. The documentary questioned whether the current QMS was workable, and examined the steps being taken by MPI as part of its ‘Future of our Fisheries’ review. We consider that the free and frank expression of opinions, even when those opinions are critical, is an important aspect of the right to freedom of expression, and is fundamental to the operation of our democratic society.

[35]  Our task then is to weigh the value of the programme (and the importance of the expression) against the level of actual or potential harm that might be caused by the broadcast. Here, Trident have submitted that Dr Norman’s statement was misleading and inaccurate, and that the inclusion of this allegation, without comment from Trident, damaged the reputation and scientific integrity of the organisation, and impacted on its working relationship with MPI.

[36]  Having given careful consideration to these factors, as well as the parties’ submissions, we have found that this broadcast was not in breach of the accuracy or balance standards. However, we agree that Trident should have been given the opportunity to respond to the allegations made by Dr Norman. As the statement made had the potential to adversely affect Trident’s reputation in a significant way, we consider that, in the interests of fairness, it was necessary to seek comment from Trident and give it an opportunity to respond. We expand on our reasoning for this decision below.

Was the broadcast inaccurate or misleading?

[37]  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.

[38]  The standard applies only to material statements of fact broadcast during news, current affairs or factual programmes. It does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.²

The parties’ submissions

[39]  RNZ submitted:

• Dr Norman’s statements were based on facts contained in a confidential 2013 report on the camera monitoring trial.
• In his statement, Dr Norman was expressing his honest opinion about MPI’s decision, based on the trial results.

[40]  Trident Systems submitted:

• Dr Norman’s assertions were incorrect and RNZ did not make reasonable efforts to check the accuracy of his statements. When alerted to the inaccuracy by Trident, RNZ did not correct it prior to re broadcasting the programme on 13 March 2017.
• The correct description of the events was as follows:
  • Video observation was undertaken in 2012 in the Timaru set net fishery.
  • Archipelago was contracted by MPI to conduct video observation in that fishery. Trident also conducted technology trials in the same fishery. Both organisations reported results to MPI, but MPI did not commission the study ‘as one company versus another’.
  • The 2012 Archipelago study involved 6 fishing vessels and 162 catch events, while the Trident technology trial involved video equipment on 3 vessels and 27 catch events.
  • During the study, Archipelago reported the death of a single dolphin. Trident reported no dolphin deaths in its technology trial because none were observed.
  • During a subsequent study in 2014, focused on the Snapper 1 trawl fishery, MPI contracted both Archipelago and Trident to undertake video observation. Work was undertaken independently, on different vessels, and was not focused on comparing cameras for the purpose of awarding subsequent contracts.
  • The 2014 study established that the technology and systems deployed by both companies were capable of undertaking monitoring in Snapper 1 fishery.
• In its further comments, Trident Systems stated that the 2013 report relied upon by RNZ did not include any reference to fish dumping, illegal behaviour or non-reporting, all issues referred to by Dr Norman.

Our analysis

[41]  The first question for us to determine is whether the statement made by Dr Norman amounted to a material point of fact, to which the accuracy standard applied. In this case, we consider Dr Norman’s statement contained a combination of material points of fact, and analysis, comment or opinion, which are not subject to the requirements of the accuracy standard.

[42]  We consider that the first statement made by Dr Norman during this item amounted to a statement of fact. This first statement, regarding the trials run by Trident and Archipelago, was based on material set out in the 2013 report, as well as findings contained in the Heron Report.

[43]  We accept that, in his statement, Dr Norman somewhat conflated the findings of the 2013 report on the camera monitoring trial, and the subsequent examination of that footage, as described in the Heron Report (which confirmed illegal discarding occurred).

[44]  However, it is clear that the 2013 report found the capture of one unreported Hector’s dolphin and sea birds, and ‘unusual or unexplained’ actions undertaken by skippers or crew that may have resulted in catch or bycatch not being recorded. As we have noted above, this footage was examined in the subsequent Achilles investigation and reported in the Heron Report, which confirmed that, ‘Six vessels participated [in the trial] and when footage was reviewed, it revealed discarding of quota fish by five of them’.³

[45]  While we agree that Trident’s independence from the fishing industry and its previous trials was a topic covered by the item, this topic was one of many discussed during the wider broadcast, which mainly focused on whether the QMS was working effectively for fishers, and what could be done about this. Past trials, and their implications for MPI’s choice of research company for camera monitoring, formed only a brief aspect of the lengthy broadcast and was not an issue explored in depth. As such, we do not consider listeners would have expected Dr Norman to cover Trident’s past video observations in the level of detail outlined by the complainant. In these circumstances, it was sufficient for Dr Norman to briefly summarise the events, in his own words.

[46]  We therefore find that the first statement made by Dr Norman, while summarised and in his own words, reflected the findings outlined above at paragraph [44], and listeners would not have been misled by his summary of those findings. We consider this aspect of Trident’s complaint is more appropriately dealt with as a matter of fairness, in that Trident should have been provided with the opportunity to respond to the comments made and, if necessary, provide further context to what was said (and we expand on our findings in this respect from paragraph [54] below).

[47]  In relation to the later statements made by Dr Norman, we have noted above that the accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion. The right to freedom of expression entitles individuals to hold and express an opinion, even if that opinion is unpopular or incorrect.⁴

[48]  In our view, while Dr Norman’s first statement was based on findings of fact set out in the 2013 report and investigated in the Heron Report, his subsequent remarks were clearly his own comment and analysis on those findings. Dr Norman linked the results of the Trident trial, which found no instances of dolphin capture, to MPI’s decision to award Trident the Snapper 1 fishery. We consider that this implication was conjecture open to Dr Norman and he was entitled to hold and express that opinion, provided issues of fairness were adequately addressed by the broadcaster. 

[49]  We therefore do not find a breach of Standard 9.

Was Trident Systems treated unfairly?

[50]  The fairness standard (Standard 11) 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

The parties’ submissions

[51]  Trident Systems submitted:

• Dr Norman implied that Trident willingly, or deliberately, turned a blind eye to illegal behaviour in order to win the MPI contract.
• Trident representatives were interviewed for the programme but Dr Norman’s claims were not put to Trident, nor was Trident asked to respond to the allegations.
• When Trident raised its concerns with RNZ and requested an opportunity to respond, RNZ took no action.

[52]  RNZ submitted:

• The critical statements made by Dr Norman were aimed at MPI, and not at Trident. As his opinion was based on the facts referred to in reports covering the trial, it was not necessary to seek comments from any other party.
• Listeners would have gained a favourable impression of Trident from its contributions elsewhere during the programme. Listeners would also be aware that Dr Norman was not a disinterested party but a stakeholder whose stance would be well-known to listeners. RNZ also noted that the complainant was not a disinterested bystander, but would be directly affected by the outcome of any decisions made by MPI.
• No palpable or quantifiable harm was experienced, or raised in its submissions, by Trident as a result of the item.

[53]  In response to RNZ’s comments, Trident submitted:

• The comments made by Dr Norman were critical of the integrity of Trident’s scientific research, which was its greatest asset. The statements included allegations of malpractice in the 2012 Timaru trial, and these allegations seriously affected Trident’s relationship with MPI.
• Trident operated independently of its quota-owning companies and its ownership did not mean it had ‘any fewer rights to be treated fairly as an interviewee by RNZ’.

Our analysis

[54]  While Dr Norman was entitled to express his view there was a connection between Trident’s successful tender for the Snapper 1 fishery and its lack of findings during the 2012-2013 trial, we consider this implication reflected negatively on Trident and in the interests of fairness, it ought to have been given a fair and reasonable opportunity by RNZ to provide comment in response.⁶

[55]  While Trident did provide comment on other aspects of the broadcast, it was not given the opportunity to refute this particular allegation or provide further, more informed, context to Dr Norman’s comments (such as that the trial was undertaken for the purpose of trialling the electronic monitoring system, and not for the purpose of prosecuting illegal dumping or non-reporting). It is possible that this further context and hearing Trident’s position on this point may have mitigated the unfair impression created for listeners.

[56]  We acknowledge that the reporter referred to the outcome of the Heron Report, presumably to provide some balance to Dr Norman’s comments. However, we do not consider that this comment was sufficiently specific to mitigate the negative impression created of Trident by Dr Norman’s comments.

[57]  Further, the complainant has submitted that it contacted RNZ, prior to the second broadcast of the documentary on 13 March 2017, drawing the broadcaster’s attention to the allegations and requesting the opportunity to respond. However, the documentary was rebroadcast unchanged and without comment from Trident. In our view, the lack of action taken by the broadcaster in response to Trident’s request compounded the breach. In rebroadcasting the allegation, despite the issue being drawn to its attention, RNZ did not take the available opportunity to mitigate the potential harm to Trident.

[58]  As we have said, we recognise that this broadcast, including Dr Norman’s comments, carried a high level of public interest and was a valuable exercise of the right to freedom of expression, and we are not suggesting that they ought not to have been broadcast. Rather, given there was a risk of causing reputational harm, more care was needed to ensure the broadcaster’s obligations under the fairness standard were met. This could have been achieved by giving Trident the opportunity to defend its reputation and professional interests in relation to all aspects of the broadcast – not only some.

[59]  For these reasons, we uphold the fairness complaint.

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

[60]  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 the audience to arrive at an informed and reasoned opinion.

The parties’ submissions

[61]  Trident Systems submitted that:

• The issue of the management and supervision of New Zealand’s fishing quota system is a controversial issue of public importance and the role of independent scientific research was central to the issue under discussion. Trident’s scientific integrity was therefore not a passing reference, or a ‘fleeting comment’.
• While Trident was involved in the programme and commented during the wider discussion, RNZ did not make reasonable efforts or give reasonable opportunity to comment on the claims made by Dr Norman.

[62]  RNZ submitted that:

• The topic of the Insight documentary was commercial fish dumping and what could be done to prevent it, and not the results of past camera trials or MPI’s selection processes for electronic monitoring providers – this particular issue was not pursued in the programme and was not referred to aside from Mr Norman’s comment. It therefore could not be characterised as a discussion of a controversial issue of public importance.
• Trident Systems contributed at various points during the item, and the listener would have gained a favourable impression of Trident during this coverage.

Our analysis

[63]  In order for the balance standard to apply, the subject matter of the broadcast must be an issue of ‘public importance’, it must be ‘controversial’ and it must be ‘discussed’.⁷

[64]  We do not consider that the comments made by Dr Norman amounted to discussion of a controversial issue of public importance, in the context of the documentary as a whole.

[65]  This item focused primarily on the effectiveness and workability of the QMS, and asked whether it was contributing to illegal fish dumping practices in the commercial fishing industry. We accept that the documentary also discussed the use of cameras as a possible solution to this issue. However we consider that the background to the past Trident and Archipelago trial formed only part of this episode of Insight, and was not discussed at length.

[66]  We agree that the overall subject matter covered by the documentary, including the use of cameras on commercial fishing boats, amounted to a controversial issue of public importance. We are satisfied that balancing comment on the overall issue of camera monitoring was provided from representatives of MPI, fishers and academic and research experts, who presented significant points of view on the issues relating to the QMS and whether camera monitoring would improve the system. We note that Trident was also provided with the opportunity to comment on the allegations regarding its independence from the fishing industry.

[67]  The topic of past camera monitoring trials undertaken by Trident, including the findings of those trials and the subsequent award of the Snapper 1 fishery, was technical detail which provided context to the wider discussion. The comments made on past trials were therefore not the key focus of the item and in our view, did not require balancing comment in order for audiences to arrive at an informed and reasoned opinion on the topic of the documentary as a whole.⁸ We therefore consider that Trident’s concerns with Dr Norman’s comments are more appropriately considered under the fairness standard, in terms of Trident being given an opportunity to comment in response to the particular allegations (rather than the presentation of significant viewpoints regarding the programme as a whole).

[68]  Accordingly, we do not uphold this aspect of the complaint.

For the above reasons the Authority upholds the complaint that the broadcast by Radio New Zealand Ltd of an episode of Insight on 12 and 13 March 2017 breached Standard 11 of the Radio Code of Broadcasting Practice.

[69]  Having upheld one part of 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

[70]  Trident submitted:

Nature of the programme

• Trident Systems argued that, in its provisional decision, the Authority mischaracterised this episode of Insight, stating, for example, that the item ‘focused primarily on the QMS [quota management system], and ‘whether the QMS was contributing to illegal fish dumping… and whether the installation of cameras on all commercial fishing boats would improve this issue’.
• The Authority also stated: ‘the topic of past camera monitoring trials’ was ‘technical’ and ‘provided context to the wider discussion’.
• The key focus of the programme (as stated in the title, ‘Will cameras end commercial fish dumping’) was whether the use of video technology on board fishing vessels would prevent the illegal discarding of fish. Consequently, the results of the camera trials were not only technical, but substantive, and this characterisation of the programme influenced the Authority’s findings under Standard 8 – Balance.

Balance

• The Authority made an error of fact in finding that the balance standard did not apply on the basis that Dr Norman’s comments were ‘technical’ and ‘not the key focus of the item’.
• Dr Norman’s comments about the results of the camera trials were relevant to the substantive focus of the programme – cameras observing fishing practices. His comments were both a matter of public importance and controversial and therefore the balance standard should apply.
• Between May 2016 and August 2017 RNZ ran a number of stories about camera surveillance on fishing vessels, indicating that the topic of camera trials amounted to a controversial issue of public importance, triggering the requirements of the balance standard.

Accuracy 

• Dr Norman’s comments were not an accurate summary of the 2013 MPI report:
  • The Archipelago study observed interactions between fishing and Hector’s dolphins, while Trident’s did not.
  • Dr Norman was inaccurate in stating that Trident ‘found nothing’. Both Trident and Archipelago’s reports detailed the fishing efforts observed. Neither Trident nor Archipelago’s reports discussed findings of illegal discarding.
• The Authority relied on the Heron report to support RNZ’s position that Dr Norman’s comments were material fact. RNZ had not relied on the Heron Report to substantiate its position and Trident was not asked to respond to the Report as part of the complaints process.
• The Authority’s finding that, ‘The finding of illegal fish dumping by Archipelago was confirmed in the Heron Report’, was incorrect. The findings contained in the Heron Report were based on a subsequent investigation by MPI’s compliance investigation team. This MPI investigation used footage gathered in the Archipelago trial, but drew conclusions from that footage which were not included in Archipelago’s own report.

[71]  RNZ submitted:

• Contrary to the impression created by the Authority’s provisional decision, the complainant’s approach to RNZ (on the Monday after the initial Sunday broadcast) was taken seriously. A significant amount of time and effort was given to a review of the programme and the complaint.
• At the time, RNZ formed a view that the broadcast contained high value ‘political speech’, and the comment complained about, which referred to the selection process for electronic monitoring agents, was an aside to the thrust of the programme. As such, it was not necessary to alter the broadcast.

Authority’s response to submissions on the provisional decision

[72]  We have made a number of amendments to our decision, taking into account the parties’ submissions.

[73]  First, we have included in the decision a summary of the programme. The inclusion of this summary, while lengthy, clarifies the nature of the programme for readers and the wide range of issues addressed, and why we reached the view that the statements complained about formed only a brief and technical part of the programme as a whole.

[74]  We have made amendments to the decision to ensure our descriptions of the programme are clear and consistent throughout. We are satisfied our finding that the programme focused primarily on whether the QMS was working effectively for fishers and what steps were being taken (including the option of camera monitoring) was correct, and no change in our position or findings on this point is required.

[75]  We have amended our analysis under Standard 9 – Accuracy, to correct the factual point raised by the complainant regarding the findings of the 2013 camera monitoring trial. We have made further amendments to clarify our reasoning under this standard. Changes have also been made to the balance section of the decision, clarifying the basis for our finding that the comments complained about formed only brief and technical detail to the larger topic of the workability of the QMS and the option to introduce camera monitoring.

[76]  Given the broadcast referred to the outcome of the Heron Report in response to Dr Norman’s comments, we consider it was open to us to consider the Report in our reasoning.

[77]  We do not consider further changes to our reasoning or findings are required. Provisional decisions are provided to parties to correct any errors of fact in the decision, or any misunderstandings by the Authority. While we have made amendments to our decision to further clarify our reasoning and ensure consistency, we do not consider Trident’s submissions affect our findings overall. We have given careful thought to Trident’s submissions and undertaken a thorough review of the issues covered by the programme, and we are satisfied that Trident’s submissions do not alter our decision.

[78]  In relation to RNZ’s submissions, we do not consider it is necessary to amend our findings under the fairness standard (in terms of RNZ’s review of the programme). We have found a breach of the fairness standard, which was compounded by the rebroadcast of the item without change. Our reasoning under this standard is not altered by the submissions.

Submissions on orders

[79]  Trident requested the following orders:

• An order directing RNZ to broadcast a statement setting out the upheld aspects of the complaint, to be approved by the Authority and broadcast at the same time Insight was usually broadcast.
• The statement should also be published on RNZ’s website.
• An order directing RNZ to provide a written apology to Trident.
• Costs and expenses of $8,174.37 for reasonable legal fees incurred, given Trident was a small research company, with only five staff members, and limited resources for pursuing the complaint.

[80]  RNZ submitted:

• The Authority found no breach of the accuracy standard and found that Dr Norman did not mislead listeners. The Authority also found no breach of the balance standard.
• The Authority’s finding that the broadcast was unfair represented a significant impediment and restriction on free speech, given that Dr Norman was expressing political speech, which had high value in New Zealand.
• This decision was made with only three Authority members and no broadcaster representative to provide a wider perspective to its decision making.
• Regarding Trident’s request for legal costs, RNZ noted that while it was open to complainants to seek legal advice on the complaints process, it is designed legislatively and procedurally to be a user-friendly and informal system which most complainants utilise without the need for legal assistance. No order for costs should be made in this instance.
• In view of the above factors, RNZ submitted no orders were warranted.

Authority’s decision on orders

[81]  When the Authority upholds a complaint, the factors we take into consideration in determining whether orders are warranted include:⁹

• the seriousness of the breach, and the number of upheld aspects of the complaint
• the degree of harm caused to any individual, or to the audience generally
• the objectives of the upheld standard(s)
• the attitude and actions of the broadcaster in relation to the complaint (eg, whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated any harm caused)
• whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
• past decisions and/or orders in similar cases.

Broadcast statement/apology

[82]  We have found in this case a breach of standards which had the potential to cause harm to the complainant. We consider a public statement is an appropriate remedy for the harm that is claimed.

[83]  It is alleged that damage has been caused to Trident’s reputation, which has impacted on its professional relationship with MPI. Trident submits that this harm is ongoing, given the broadcast is still available to listen to, alongside a written article, on RNZ’s website.¹⁰

[84]  We consider that a broadcast statement on RNZ National summarising the upheld aspects of the Authority’s decision would go some way to repairing any damage caused to Trident as a result of the broadcast, and addressing its unfair treatment.

[85]  We also consider it would be appropriate for a statement to be published on RNZ’s website beneath the article summarising the Insight documentary, for as long as those items remain available online.¹¹ This will ensure members of the public are alerted to this decision, and mitigate any ongoing harm to Trident’s reputation.

Costs to the Crown

[86]  We do not consider the nature of the breach of the fairness standard in this case warrants an order of costs to the Crown (and we note this was not requested by the complainant).

[87]  We did not uphold the complaint under accuracy and balance. While we have found that Trident was treated unfairly, this is because although RNZ took some steps to seek Trident’s views, it did not go far enough. In other words this is not a case where there has been a wholesale failure to meet the standard. We therefore consider that the decision and broadcast statement will sufficiently mark the breach of standards and will offer guidance to broadcasters regarding the requirements of the fairness standard.

[88]  Further, while RNZ has not accepted the Authority’s finding, it submitted that it did take steps to review the broadcast (given the complainant’s concerns) and it undertook a careful balancing exercise with the right to freedom of expression, finding that this broadcast had high value.

[89]  In these circumstances, we do not make any order of costs to the Crown.

Legal costs

[90]  Costs awards are ordinarily granted to recompense in part a successful complainant for legal costs which have been incurred, and may include costs other than legal fees incurred during the complaints process.¹² In all but the most exceptional cases, the most that is likely to be recoverable in an award of costs is a contribution to the costs actually incurred.¹³

[91]  The factors to be taken into account in assessing whether costs are appropriate, and in what amount are:¹⁴

• the complexity of the issues raised
• the number of issues raised
• the complexity of the factual background
• the number of substantive submissions that needed to be made
• whether the proceeding required resolution of any interlocutory or procedural issues
• the need for the complainant to have incurred costs to the extent that costs were incurred or at all
• the amount of costs incurred
• the nature and importance of the complaint to the complainant
• the public interest in the complaint.

[92]  The Authority most recently awarded legal costs in the decision Wildman and MediaWorks TV Ltd.¹⁵ In that case, the Authority upheld in part a complaint from a real estate agent who complained that an item on Story unfairly caused ‘irreparable damage’ to her reputation (the Authority did not uphold the complaint under privacy and accuracy). The Authority awarded $1,000 in legal costs in that case, being approximately a quarter of the costs incurred.

[93]  Trident has requested a sum of $8,174.37 for costs and expenses, and provided evidence in support of this request. As noted above, our guidance to complainants on costs awards is clear that only a portion of legal costs reasonably incurred is likely to be awarded.

[94]  As we have upheld part of Trident’s complaint, we consider an award of a portion of reasonable costs in this case is appropriate. In determining that an award of costs is appropriate and the amount to be awarded, we have taken into account the following factors:

• Trident comprises a small scientific research team, with limited staff and experience of legal or complaints processes.
• We accept that this broadcast was of particular importance to the complainant, which relies heavily on its reputation of integrity and that it was important for it to pursue this complaint.
• The complainant has submitted that the broadcast caused serious reputational damage and it was necessary to seek legal advice in pursuing the complaint.
• We acknowledge that this complaint raised complex issues under three standards.
• The complainant, assisted by its legal counsel, provided thorough submissions at each stage of the complaints process.
• We have upheld one aspect of the complaint, under the fairness standard.
• While a breach has been upheld, it is not at the serious end of the scale, which mitigates against a large cost award.
• We did not uphold the complaint under the other two standards raised, accuracy and balance.
• We have noted the broadcaster’s submission that this process is designed to be accessible and without undue formality, and generally, without the need for legal advice. However, this is balanced against the important reputational issues raised by the complainant and its limited resources for dealing with a complaint such as this.

[95]  Taking all of the above factors into account, we consider that an order of costs in the amount of $2,000 is appropriate, reflecting approximately 25% of the amount claimed.

Orders

1. Under section 13(1)(a) of the Act, the Authority orders RNZ to broadcast a statement. The statement shall:

• be broadcast within one month of the date of this decision
• be broadcast at a time and on a date to be approved by the Authority
• contain a comprehensive summary of the upheld aspects of the Authority’s decision
• be approved by the Authority prior to being broadcast.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above orders have been complied with.

2. Under section 13(1)(a) of the Act, the Authority orders RNZ to publish a statement online. The statement shall:

• be published within one week of the date of this decision
• note that the Authority upheld Trident’s complaint that the Insight item breached the fairness standard
• be displayed at the end of the online article relating to the Insight item
• include a link to the Authority’s full decision
• remain displayed online for as long as the item and/or the article remain available.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above orders have been complied with.

3. Under section 16(1) of the Act, the Authority orders RNZ to pay to the complainant costs in the amount of $2,000 within one month of the date of this decision.
The order for costs is enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich
Chair
27 October 2017

Appendix

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

1     Trident Systems’ formal complaint – 24 March 2017
2     RNZ’s response to the complaint – 26 April 2017
3     Trident Systems’ referral to the Authority – 22 May 2017
4     RNZ’s response to the Authority – 16 June 2017
5     Trident Systems’ further comments – 11 July 2017
6     RNZ’s further comments – 24 July 2017
7     Trident Systems’ final comments – 31 July 2017
8     RNZ’s final comments – 2 August 2017
9     RNZ’s submissions on the provisional decision and orders – 11 September 2017
10   Trident Systems’ submissions on the provisional decision and orders – 18 September 2017
11   Trident Systems’ further evidence on costs – 12 October 2017
12   RNZ’s further comments on costs – 16 October 2017

¹ See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6.

² Guideline 9a

³ Independent Review of MPI/MFish Prosecution Decisions - Operations Achilles, Hippocamp and Overdue, Michael Heron QC, at page 5

⁴See Dempsey and 3 others and Television New Zealand Ltd, Decision No. 2014-047

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

⁶ Guideline 11d to Standard 11 – Fairness

⁷ Commentary to Standard 8 – Balance, Broadcasting Standards in New Zealand Codebook, page 18

⁸ Commentary to Standard 8 – Balance, Broadcasting Standards in New Zealand Codebook, page 18

⁹ Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58

¹⁰ http://www.radionz.co.nz/national/programmes/insight/audio/201836033/insight-will-cameras-end-commercial-fish-dumping

¹¹  In a previous decision by the Authority, Wildman and MediaWorks TV Ltd, Decision No. 2015-075, we found that the material contained on the programme’s website was of most concern, in terms of the ongoing harm to the complainant’s reputation. In that case, the Authority considered an online statement would be more effective than a broadcast statement, and ordered that the statement be included at the beginning of the online article, summarising the breach and providing a link to the full decision.

¹² Guidance: Costs awards to complainants, Broadcasting Standards in New Zealand Codebook, page 66

¹³ As above

¹⁴ As above, page 67

¹⁵Decision No. 2015-075