BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint about references to Advance NZ/New Zealand Public Party co-leader Billy Te Kahika spreading misinformation and conspiracy theories, during a panel discussion on Te Ao with Moana. The episode included two online panel discussions about the issue of misinformation on social media and its implications for Māori in particular. Noting that two other episodes of the programme broadcast in the preceding weeks had allowed considerable time to Mr Te Kahika to put forward his position on these issues, the Authority did not find any breach of the balance, accuracy or fairness standards.

Not Upheld: Balance, Accuracy, Fairness

The broadcast

[1]  During an episode of Te Ao with Moana, the host, Moana Maniapoto conducted two online panel discussions with a range of interviewees about the issue of misinformation. She introduced the first panel discussion as follows:

…Because responding to the pandemic is a long game, now most of us are working hard to protect our whānau, kaumātua and tamariki by adhering to public health tikanga. A minority are threatening the safety of all by falling prey to misinformation on social media. So I asked Matthew Tukaki from the NZ Māori Council, blogger Joe Trinder and Toi Iti a Bay of Plenty Regional Councillor what’s going on and what are the implications for Māori…

[2]  During this panel discussion, several of the panellists mentioned the Advance NZ/New Zealand Public Party co-leader, Billy Te Kahika, as an example of someone they considered to be spreading misinformation. Comments made during the discussion included:

• ‘Well I’m just going to be blunt and say that what we’re dealing with are a couple of cone-heads who are perpetuating conspiracy theories, that plays with our darkest feelings and thoughts. …There have been so many more people out there who have been fighting for decades for the rights of Maori, and then all of a sudden… Billy TK comes along and is perpetuating myths found on YouTube.’ (Matthew Tukaki)
• ‘So, for example… Billy TK put out some disinformation that the Gates Foundation was putting out non-approved FDA vaccines into India and also Africa. Now it only took me 10 minutes on my phone to find out that it was disinformation… It’s really important you find out the source of where the information came from…’ (Joe Trinder)
• ‘…the implications are at a political level, at a national level. We saw Gerry Brownlee send out a bit of a dog whistle inferring that there was a conspiracy, that there was a lack of transparency. So what was your response to that?’ (Ms Maniapoto)
• ‘…let’s come back to the overall problem that we’ve got here. We are being recolonised again by a group of pākehā white males, from another country, who are peddling a message through a channel called Billy TK and the NZ Public Party and others out there as well that want us to scurry their message along. They want to get these brown boys involved in the debate and in doing so that is creating a huge amount of grief across our communities.’ (Mr Tukaki)

[3]  The second panel discussion followed an introduction about the importance of accuracy, balance and stringent standards when it comes to robust research and fact-checking. The panel’s comments relevant to the complaint included:

• ‘The genesis of many – not all, but many – of these conspiracy theories are the alt-right. And the alt-right have their own interest and reasons for wanting to destabilise society and destabilise centralist governments. …and particularly for Māori we know that there are issues to do with compliance with the Treaty and recognising our rights and so these groups who seek to destabilise centrist governments can really capitalise on that…’ (Tina Ngata)
• ‘There are conspiracies out there in the world… it’s an illegitimate attempt to push propaganda down the throats of people to support various vested interest groups… So I just say to our people… put your trust in people who have a track record of being right. And a lot of people I see out there, you know like Billy TK and his group of followers, I’ve never seen them anywhere before in my life…’ (Mike Smith)

[4]  The episode was broadcast on Māori Television on 17 August 2020 and repeated on 23 August 2020. In considering this complaint, we have viewed a recording of the broadcast complained about, as well as two earlier related broadcasts featuring Billy Te Kahika on 6 July 2020 and 27 July 2020. We have also read the correspondence listed in the Appendix.

The complaint

[5]  Sandra Anderson complained that the broadcast breached the balance, accuracy and fairness standards of the Free-to-Air Television Code of Broadcasting Practice for the following reasons:

Balance

• The item came across as ‘an attack on Billy Te Kahika and the New Zealand Public Party’ and a ‘deliberate attempt to convince viewers that Billy Te Kahika and the NZPP were touting misleading conspiracy theories’.
• There was no opportunity given to the viewer to hear the affected party’s viewpoints ‘especially when the affected party is an electoral candidate and when the broadcast was close to the election’

Accuracy

• The following statements in the broadcast were allegedly inaccurate:

(a)  Billy Te Kahika is ‘perpetuating myths found on YouTube’.

(b)  Billy Te Kahika ‘put out some disinformation…’

(c)   ‘We are being recolonised again by a group of pākehā white males, from another country, who are peddling a message through a channel called Billy TK and the NZ Public Party…’

• The item also implied that Billy Te Kahika is a ‘conspiracy theorist from the Alt-Right’ which was allegedly misleading.

Fairness

• The broadcast ‘painted Billy Te Kahika and the NZPP as conspiracy theorists touting misleading information’.
• Billy Te Kahika and the New Zealand Public Party were not given a fair and reasonable opportunity to comment.

The broadcaster’s response

[6]  Māori Television did not uphold the complaint for the following reasons:

Balance

• The story was focussed on misinformation and was ‘intended to help our viewers deal with the distressing consequences of whānau and friends falling victim to a deluge of inaccurate, unfair and unbalanced misinformation and disinformation’.
• The balance standard allows for balance to be achieved over time. This item was a follow-up on two earlier episodes where Billy Te Kahika was interviewed by reporter Hikurangi Jackson, and Moana Maniapoto. In both of those episodes Billy Te Kahika was given the opportunity to present and defend his views.
• Billy Te Kahika and his views have also been investigated and covered by other media outlets. It noted in particular a New Zealand Herald article titled, ‘Comment: A night with Billy TK and his conspiracy theories’.¹

Accuracy

• The requirement for accuracy did not apply to the commentators’ statements as they were clearly distinguishable as opinion, rather than statements of fact.
• Reasonable efforts were made to ensure accuracy ‘by giving Billy Te Kahika opportunities to present his views to the public’ and seeking ‘opinions of reputable experts’.

Fairness

• ‘Billy Te Kahika was [previously] given significant air time and opportunity to voice his views on the topic discussed.’
• ‘There were no abusive comments or inappropriate abuse of position by the News Story against Billy Te Kahika.’
• The key takeaway from the story was for viewers ‘to listen to trusted leaders with history of challenging the government and set up intellectual checkpoints around our minds to interrogate information’.

Freedom of expression and election-related broadcast content

[7]  As this complaint concerns content referring to a particular political party and candidate in the upcoming election, we have determined it with reference to our Election 2020 fast-track procedure.² The broadcaster did not agree with the assessment that the programme was ‘election-related’. However on the basis it is something that may influence a vote, we have endeavoured to deal with it as swiftly as possible. We thank the complainant and the broadcaster involved in this matter for their timely responses to our request for submissions.

[8]  The starting point for our determination is to recognise the importance of the right to freedom of expression, and specifically the importance of political speech and public discourse in the lead-up to the general election. This includes the right of broadcasters to impart ideas and information, and the public’s right to receive that information about election-related and referenda-related issues. This is an important right in a democratic society and is particularly important in the lead-up to a general election or referendum, when parties, candidates and interest groups are seeking to influence votes, and audiences are seeking information to enable them to make informed voting decisions.

[9]  We may only intervene and uphold a complaint where to do so would impose a limitation on the right which is reasonably justified in a free and democratic society.³ In deciding whether any limitation on the right to freedom of expression is justified, we first consider the value and public interest in the broadcast. We then weigh that value against the level of actual or potential harm that might have been caused by the broadcast, in this case mindful that voters rely on mainstream media outlets to provide reliable information and therefore they have the potential to influence voters’ views on the subject matter discussed. Nevertheless, given the importance of political speech and of enabling political and public discourse in the lead-up to a general election, we will generally only intervene to limit the exercise of that speech when we consider that the harm is great.

The standards

[10]  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 objective of the balance standard is to enable the audience to arrive at an informed and reasoned opinion (which is important to the operation of an open and democratic society).⁴

[11]  The purpose of the accuracy standard (Standard 9) is to protect the public from being significantly misinformed.[5] It states that broadcasters should make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.

[12]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in any broadcast. The purpose of the fairness standard is to protect the dignity and reputation of those featured in programmes. The objective in assessing fairness is to weigh the broadcasters’ right to freedom of expression against the right of individuals and organisations to be treated fairly.⁶

Our analysis and the outcome

Balance

[13]  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’.⁷

[14]  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’.⁸ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁹

[15]  We find that the above criteria were met and therefore the balance standard was triggered, for the following reasons.

[16]  Te Ao with Moana is described on the Māori Television website as ‘a weekly current affairs show that examines national and international stories through a Māori lens’. The subject matter of this episode was also clearly within the category of news and current affairs programming.

[17]  The item and the two panel discussions were framed as focussing on the issue of misinformation and conspiracy theories being spread on social media, including in relation to the Government’s response to COVID-19, and the implications for the public and Māori in particular. As part of this broader discussion, Billy Te Kahika was mentioned as an example of someone who is perceived to spread misinformation online.

[18]  In our view both the broader issue of misinformation, and the suggestion that Mr Te Kahika, as the leader of a political party, has contributed to this issue, are topics that would have a significant potential impact on, and would be of concern to, members of the New Zealand public. This is particularly so in the lead-up to the election when misinformation may influence voters. Misinformation and fake news, including in relation to COVID-19 and the election, are also topics that have been the subject of ongoing media coverage and public debate.¹⁰

[19]  The next question is whether the broadcaster made reasonable efforts in the circumstances to give opportunities for significant viewpoints on the issue to be presented, within the programme and/or within the period of current interest.

[20]  The complainant’s concern is that Mr Te Kahika’s perspective was not presented within this programme. However, the wording of the balance standard, which is taken from the Broadcasting Act 1989, is clear that a broadcaster should make reasonable efforts to present significant perspectives ‘either in the same programme or in other programmes within the period of current interest’. This means that balance is allowed to be achieved over time, and broadcasters are not required to present every perspective on a controversial issue within each and every broadcast discussing that issue. Placing such a requirement on broadcasters would itself unreasonably limit their exercise of freedom of expression and editorial control. The Codebook commentary on applying the balance standard supports this, noting:¹¹

A common sense approach should be taken in applying the standard. We acknowledge the practical reality that programmes cannot be perfectly balanced and this is not required. Consideration of this standard will reflect the present broadcasting environment in New Zealand and the increased flows of information which now pass over us on topics of all kinds, the proliferation of broadcast media, media which is consciously delivered from a political perspective, and a more discriminating viewing public. Decisions made under the balance standard will always be fact - and context - dependent to reflect this modern and diverse broadcasting world.

[21]  We are satisfied that Māori TV made reasonable efforts to achieve balance within the period of current interest by featuring Billy Te Kahika and allowing him considerable opportunity to present his views in two previous episodes of Te Ao with Moana that were broadcast in the weeks preceding this item, on 6 July (Episode 22, repeated on 12 July 2020) and 27 July 2020 (Episode 25, repeated on 6 August 2020). During those items, the perception that he is spreading conspiracy theories was clearly put to Mr Te Kahika for his response. Episode 22 featured Mr Te Kahika and the New Zealand Public Party, and included a short interview with Mr Te Kahika about the perception of him as a conspiracy theorist. In Episode 25, Ms Maniapoto interviewed Mr Te Kahika in the studio and he was asked to comment on the perception that he is ‘representing a whole series of conspiracy theories’.

[22]  Additionally, in the period from July 2020 to the time of writing this decision, Mr Te Kahika and the New Zealand Public Party have received extensive coverage in the media, in light of the upcoming election.¹² We also note that Mr Te Kahika is an active participant on social media and he responds to and engages with the public through these channels regularly.¹³ What this means, is that the likelihood of harm being caused as the result of any single broadcast item is reduced. A wide range of information on the topic is readily accessible to the public.

[23]  In these circumstances, we find the broadcaster has met its obligations with respect to the balance standard, and audiences would not have been left uninformed as a result of this particular episode of Te Ao with Moana.

[24]  We therefore do not uphold the complaint under the balance standard, on the basis that we have not found actual or potential harm that justifies regulatory intervention or limiting the right to freedom of expression in this case.

Accuracy

[25]  The accuracy standard applies only to material statements of fact, and not to statements which are clearly distinguishable as analysis, comment or opinion.¹⁴ So the first question for us is whether the standard applies to the statements complained about. The relevant statements, identified in the complaint, are:

• Billy Te Kahika is ‘perpetuating myths found on YouTube’.
• Billy Te Kahika ‘put out some disinformation…’
• ‘We are being recolonised again by a group of pākehā white males, from another country, who are peddling a message through a channel called Billy TK and the NZ Public Party…’

[26]  In considering whether these statements were fact or opinion, the following factors are relevant:¹⁵

• the language used in the statements, as well as in the rest of the item
• the type of programme
• the role or reputation of the person speaking (for example, a statement made in a panel discussion is more likely to be opinion)
• the subject matter (some subjects are notoriously controversial, and statements about them could well be opinion)
• whether the statement was attributed to someone.

[27]  Applying these factors in this case, we find the statements complained about were clearly distinguishable as expressions of the panellists’ opinions and analysis, rather than assertions of facts. They were made by panellists Matthew Tukaki and Joe Trinder in response to the host’s question, ‘what are you seeing on social media?’, which signalled she was asking for their views and analysis of the issue. The views given reflected public perceptions and claims already made publicly about Mr Te Kahika, including in the earlier episodes of Te Ao with Moana and in other media coverage. Both panellists clearly contextualised and explained their views and offered their perspectives on the implications for Māori (see paragraph [2]), supporting that this was analysis and the audience would have understood it as such.

[28]  The same reasoning applies to the complainant’s concern that ‘the item implies that Billy Te Kahika is a “conspiracy theorist from the Alt-Right”.’ The references to the alt-right were clearly in the context of one panellist, Tina Ngata, in the second panel discussion giving her views and analysis, again contextualising these in terms of the possible implications and risks for Māori.

[29]  Finally, we note that the fact Mr Te Kahika was given an opportunity to put forward his position in response to these claims, in two earlier episodes in the weeks preceding this broadcast, reduced the likelihood of actual harm being caused in terms of the objectives of the accuracy standard.

[30]  For all of these reasons, we do not find any breach of the accuracy standard.

Fairness

[31]  The complaint under the fairness standard is that the broadcast painted Mr Te Kahika and the New Zealand Public Party as conspiracy theorists, and they were not given a fair and reasonable opportunity to comment.

[32]  Generally, a consideration of what is fair will take into account the following:¹⁶

• whether the audience would have been left with an unduly negative impression of an individual or organisation
• whether an individual or organisation taking part or referred to in a programme was adequately informed of the nature of their participation
• whether the individual or organisation was given a reasonable opportunity to comment
• the nature of the individual, for example, a public figure or organisation familiar with dealing with the media, as opposed to an ordinary person with little or no media experience
• whether any critical comments were aimed at the participant in their business or professional life, or their personal life
• the public significance of the broadcast and its value in terms of free speech.

[33]  Applying these factors in this case, we are satisfied that no unfairness to Mr Te Kahika or the Advance NZ/New Zealand Public Party arose as a result of this broadcast.

[34]  Te Ao with Moana is a current affairs programme carrying a high level of public interest in exploring issues through a Māori lens. The panel discussions in this episode also carried a significant level of public interest. The claims made regarding the alleged spreading of conspiracy theories were not new; they were already in the public domain as the result of other media coverage and the earlier items on Te Ao with Moana. As a political party and candidate in the upcoming election, Mr Te Kahika and his Party can reasonably expect to be subject to a high level of robust media and public scrutiny, meaning it was not necessary, in the interests of fairness, for them to be informed about the nature of comments made in this particular item (which, in any case, reflected other media commentary). Nor was it necessary to give them a specific opportunity to comment for this programme, particularly given the format and premise of the panel discussions which focussed more broadly on the issue of misinformation. In any event, as we have already said, Mr Te Kahika was given two opportunities in previous broadcasts by Māori Television to respond to these claims.

[35]  In these circumstances, we have not found actual or potential harm under the fairness standard which outweighed the right to freedom of expression or which justifies regulatory intervention. We therefore do not uphold the fairness complaint.

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

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

15 October 2020    

Appendix

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

1.            Sandra Anderson’s complaint to Māori Television – 15 August 2020

2.            Māori Television’s decision on the complaint – 17 September 2020

3.            Ms Anderson’s referral to the Authority – 7 October 2020

4.            Māori Television’s response to the referral – 12 October 2020

¹ David Fisher, (NZ Herald, 13 September 2020)
² <https://www.bsa.govt.nz/assets/20200821-BSA-Fast-Track-Process-for-Election-Programmes.pdf>
³ See New Zealand Bill of Rights Act 1990, ss5 and 14, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
⁴ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁵ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁶ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁷ Guideline 8a
⁸ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁹ As above
¹⁰ See for example: Election fake news weekly reporting to monitor New Zealand campaigning (RNZ, 14 September 2020); Public warned as fake news, misinformation, conspiracy theories threaten Covid-19 response (RNZ, 10 September 2020)
¹¹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹² See for example: PM Jacinda Ardern shuts down ‘conspiracies’ peddled by NZ Public Party’s Billy Te Kahika (Newshub, 27 July 2020); Misleading claim spreads online that New Zealand has authorised troops to enter homes to enforce Covid-19 quarantine (AFP, 31 July 2020); The outliers: Fears about Te Kahika’s controversial Covid-19 views (RNZ, 14 September 2020); Election 2020: Billy Te Kahika campaigns on truth. But does he live by it? (Stuff.co.nz, 12 October 2020)
¹³ Covid-19: Confronting the deluge of conspiracies over the latest lockdown (RNZ, 16 August 2020)
¹⁴ Guideline 9a
¹⁵ Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand, page 64
¹⁶ As above