BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has upheld a complaint that it was inaccurate for the host of The Mike Hosking Breakfast to state, responding to listener feedback asking whether ‘striking teachers do all this on full pay’: ‘Well of course they do! …people who go on strike have always been on full pay. They're supported by the unions.’ The Authority found: the statement was materially inaccurate in the context of the broadcast; text messages read out later in the programme commenting on the pay situation for teachers on rolling strikes as opposed to full strikes did not serve as a correction to Hosking’s earlier inaccuracy; and the broadcaster did not make reasonable efforts to ensure accuracy. The Authority found publication of the decision was sufficient to notify the breach of the accuracy standard and provide guidance to broadcasters, and no further orders were necessary.

Upheld: Accuracy

No Order

The broadcast

[1]  During the 12 June 2023 broadcast of The Mike Hosking Breakfast, Hosking briefly commented on unions and impending teacher strikes being undertaken in New Zealand. The segment was introduced:

Now as we enter another week – yet another week – of industrial action. Ah yes, it's the teachers again. The upside is that the primary sector got themselves sorted last week so one assumes, although they're separate claims, the broad aim is the same and one hopes a similar sort of outcome can’t be far away.

…anyway as a parent I can tell you I'm well and truly over this lot. School is important and we have a daughter who thinks school is important as well. I know it's very unfashionable these days to think that way, far less want to turn up regularly, but this generation have been shafted in the most appalling way between the COVID and lockdowns and illness and strikes. The amount of school that's been missed is criminal. You can't encourage success if you can't be bothered opening the gates. And this week, yet again, we stay at home. Today is Strike day, Thursday, Strike day, two days. This week. My entire life as a student and as a parent, teachers have not been happy. Think about it. When was the last time you met the teachers as a collective that were happy? No one in unionised employment has ever been happy. What does that say about the model for goodness sake? Mix in the fact that our education system in terms of performance and results is now criminally bad, and it's not a great advertisement for, yet again, expecting parents to find kid cover and more importantly, yet again, to expect kids to stay away while teachers prioritise their circumstances.

[2]  Hosking then went on to read out some text messages from listeners about the strikes, including the following comments:

[Reading text message] 'My Year 13 now faces yet another two days off school this week. Can you confirm that striking teachers do all this on full pay?'

Well of course they do! They've always been – people who go on strike have always been on full pay, they're supported by the unions. 

[Continuing to read text message] ‘I've been told this by a young secondary school teacher on the weekend. Am I so far out of touch that this is now the norm for the public sector on strike? I simply ask, what's the incentive not to strike?’

It's not a bad question.

[3]  12 Minutes later in the programme a text message was read out by the host:

The line between whether teachers are paid or not paid when they're on strike. [Reading text message] ‘Mike, I understand the rostered home strategy mean that teachers are on full pay. If they go on strike completely, then it’s no pay. That's why they've chosen rostered home instead of a complete strike.’ Anyway let me come back to that…

[4]  5 minutes after this, following an unrelated interview, more text messages were read out by the host:

[Reading text message] ‘I sent a letter, Mike, about this to my kid’s headmaster yesterday. One of them called me last night. He confirmed they do get paid. He said their pay system can't cope with docking their pay.’

[Reading text message] ‘Denigrating teachers and education with so little real understanding is typical of your inadequate knowledge of the reality.’ Well, when you say real understanding, do you not regard a parent of five kids who's watched them go through every aspect of education in this country while also from the ages of 9 to 16, going through that same system as not having real experience? I mean, how much more real experience do you want, for God's sake?

[Reading text message] ‘Primary school teachers had a one-day strike and we did not get paid, Mike. Secondary teachers are doing rolling strikes and are getting paid. Why do you think primary teachers settle? We couldn't afford to strike another day and lose pay.’

The complaint

[5]  Ben Appleyard complained that the broadcast breached the accuracy standard of the Code of Broadcasting Standards in New Zealand. The key points of complaint and later submissions can be summarised as follows:

• ‘Mike Hosking read a text message in which he made the claim and stated directly that teachers’ strikes were fully paid for and covered by the union.’
• ‘This is completely false and not the case. Teachers lose a day’s pay.’
• The broadcaster argued that later comments in the programme provided balance to the initial claim regarding teachers getting paid by the unions. However, none of these later comments amounted to Hosking himself retracting the inaccurate statement.
• In any case, ‘many listeners are on their way to work and most likely to miss follow up discussion on the matter’.
• (Responding to the broadcaster) ‘Hosking’s comments were not in relation to ‘“certain” strike action. He made a blanket statement in this regard.’
• Even if the statement was analysis, comment or opinion (as argued by the broadcaster), the standard says the broadcaster should ensure that is not misleading or based on inaccurate facts.

The broadcaster’s response

[6]  NZME Radio Ltd (NZME) did not uphold Appleyard’s complaint for the following reasons:

• ‘[T]his was a passing comment made in response to a text from a listener’.
• ‘Although the host initially indicated that all teachers who are on strike receive full pay, the subsequent texts… confirmed secondary school teachers involved in the current strike action were getting paid and also suggested that while secondary school teachers on a rolling strike do receive full pay, primary school teachers on a full-day strike do not.¹’
• ‘It appears following a law change in December 2018, employers no longer have the right to make deductions from workers’ pay when workers undertake a partial strike action.²’
• ‘Taking the later texts into account and the fact this was not a detailed discussion on the topic, we are satisfied the programme did not materially mislead the audience.’

[7]  Responding to Appleyard’s referral to the Authority, NZME added:

• ‘The comment complained of by the host falls into the category of “comment, analysis or opinion” to which this standard does not apply.’
• ‘However, even if this standard were to apply to the statement complained of, in view of the fact that it appears teachers taking certain strike action may receive full pay, the statement was not materially inaccurate or misleading.’
• ‘In any event, as already noted, the subsequent texts read out on air by the host provided further context for the listener. As such, we are satisfied it was not necessary for the host to clarify his earlier comment.’

The standard

[8]  The purpose of the accuracy standard³ is to protect the public from being significantly misinformed.⁴ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

Our analysis

[9]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[10]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where the resulting limit on the right to freedom of expression is demonstrably reasonable and justified in a free and democratic society.⁵

[11]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was materially inaccurate or misleading. To ‘mislead’ in the context of the accuracy standard means ‘to give another a wrong idea or impression of the facts’.⁶ The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.

Was the broadcast materially inaccurate or misleading?

[12]  The harm complained of is that it was inaccurate for the host to claim teachers get paid by the unions while striking. The relevant comment as broadcast was:

Text:            ‘…can you confirm that striking teachers do all this on full pay?’

Hosking:     Well of course they do! …People who go on strike have always been on full pay, they’re supported by the unions.

[13]  Having reviewed publicly available information, including guidance on strike action from the New Zealand Educational Institute | Te Riu Roa (NZEI) and the Post-Primary Teachers Association (PPTA), our understanding of the factual background is that:

• Teachers do not usually get paid while on strike:
  • ‘Will I be paid if a strike goes ahead? Generally, no. Employers do not have to pay you while you are on strike. In order to be able to withhold pay, the Secretary for Education (who essentially takes on the role of your employer) can suspend striking school teachers for the duration of the strike…’ (NZEI).⁷
  • ‘Teachers who are taking industrial action will not be paid for the day. Teachers will lose 1/14th of their normal fortnightly pay for each strike day…’ (PPTA).⁸
• The unions cannot legally distribute money to members who are not their employees, as they are incorporated societies.⁹
• However, the secondary school teachers’ union does support regional ‘hardship funds’, funded by donations, which teachers can apply to for support while taking strike action if they demonstrate ‘undue hardship’.¹⁰
• During ‘rolling strikes’ where certain year levels are rostered home, or ‘work bans’, teachers do appear to receive pay from their employers.¹¹

[14]  The Authority has previously found The Mike Hosking Breakfast amounts to a news and current affairs programme to which the accuracy standard applies,¹² in this case discussing then-current strike action.

[15]  While Hosking may have begun by offering his opinion concerning unions and their members, the comment that ‘Well of course they do [this on full pay]!… People who go on strike have always been on full pay, they're supported by the unions’ was expressed as a statement of fact. We do not agree with the broadcaster that it was comment, analysis or opinion – and in any event note that the standard guidelines require the broadcaster to ensure opinion is not misleading or based on erroneous facts.¹³

[16]  Based on the above factual background, we consider the statement was factually incorrect. While some unions, such as the PPTA, do have ‘hardship funds’ as described at [13], based on readily available information, it is clearly not true that unions pay all members their full salary during strike action (even if interpreting Hosking’s statement as applying only to teachers and teachers’ unions).

[17]  Finally, while the relevant segments made up a small part of the broadcast overall (approximately five minutes out of three hours, and among discussion of a broad range of topics), we consider stating that striking workers are paid by unions was material in the context of discussing striking teachers and teachers’ unions, and would affect the audience’s understanding of that topic as a whole.¹⁴ Hosking initially spoke at some length criticising the effectiveness of unions and, in relation to teachers in particular, students missing out on too much school ‘while teachers prioritise their own circumstances’. In this context, it was material to listeners’ understanding to know whether teachers striking were on full pay, and whether it was the unions paying for that.

Did the later comments amount to an adequate ‘correction’?

[18]  If a material error of fact has occurred, the standard states broadcasters should correct it within a reasonable period after they have been put on notice.¹⁵ In response to the complainant’s concerns about the timing of later comments, we are satisfied that 15-20 minutes later in the same programme constitutes a ‘reasonable period’.

[19]  The text messages included later in the programme clarified that teachers participating in rolling strikes do receive full pay, while teachers striking for full days do not. This would appear to be accurate, based on guidance provided by EdPay.¹⁶

[20]  However, these later text messages were not framed as corrections, did not acknowledge any inaccuracy had been aired earlier in the programme, and did not directly contradict the notion that striking workers receive full pay from unions. Hosking did not comment on them or engage with them, beyond reading them out.

[21]  We consider the audience would likely view these text messages as the opinions of listeners, rather than authoritative statements.

[22]  Overall, we do not think listeners were left with a clear understanding of whether teachers were on full pay while on strike (and whether that was in relation to ‘certain’ strike action as submitted by the broadcaster) and, if they were, whether it was the unions paying for that. We therefore find the material inaccuracy of the initial statement was not adequately resolved by the inclusion of these text messages.

Did the broadcaster make reasonable efforts to ensure accuracy?

[23]  For similar reasons, we do not consider the broadcaster made reasonable efforts to ensure the accuracy of the programme in relation to Hosking’s statement. While we acknowledge this was a live broadcast, and the broadcaster exercises editorial discretion in selecting text messages to read out (including those texts that offered some clarification of the correct position):¹⁷

• There was no clear source for the claim made by Hosking.
• If Hosking was referring only to ‘certain’ strike action, that was not made clear to listeners.
• As we have said, we do not consider the later texts from listeners that were read out adequately corrected the earlier inaccuracy.
• Beyond listener feedback, no other expert or reliable source was contacted for comment or to verify the correct position.
• The statement’s accuracy was reasonably capable of being determined by the broadcaster.
• The subject matter was topical and carried public interest.

[24]  Accordingly, we consider upholding the complaint as a breach of the accuracy standard, places a reasonable and justified limit on the broadcaster’s right to freedom of expression. Recognising that Hosking is in a privileged and influential position as a well-known national broadcaster, we are satisfied that upholding the accuracy complaint in this case does not unreasonably limit the broadcaster’s free speech or prevent Hosking from expressing his views. Rather, it reasonably requires Hosking to express his views in a way that does not propagate misleading information that may affect listeners’ understanding of issues discussed.

For the above reasons the Authority upholds the complaint that the broadcast by NZME Radio Ltd of The Mike Hosking Breakfast on 12 June 2023 breached Standard 6 (Accuracy) of the Code of Broadcasting Standards in New Zealand.

[25]  Having upheld the complaint under the accuracy standard, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989.  We have concluded no order is warranted in this case. Publication of our decision is sufficient to publicly notify the breach of the accuracy standard and censure the broadcaster, and to provide guidance to NZME and other broadcasters regarding the importance of factual accuracy when expressing opinions and the importance of clearly correcting inaccuracies.

Signed for and on behalf of the Authority

Susie Staley
Chair
20 November 2023   

Appendix

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

1  Ben Appleyard's formal complaint to NZME - 12 June 2023

2  NZME’s decision on the complaint - 25 July 2023

3  Appleyard’s referral to the Authority - 6 August 2023

4  NZME’s further comments - 25 August 2023

5  Appleyard’s further comments - 25 August 2023

6  NZME confirming no further comments - 8 September 2023

¹ Citation: ‘See also re planned NZEI full-day strike on 15 August 2023: https://campaigns.nzei.org.nz/time/campaign-resources/understanding-strikes/’
² Citation: ‘https://campaigns.nzei.org.nz/time/campaign-resources/frequently-asked-questions/#strikes’
³ Standard 6, Code of Broadcasting Standards in New Zealand
⁴ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
⁵ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁶ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [98]
⁷ NZEI Te Riu Roa “Frequently Asked Questions about actions and strikes” (9 March 2023) <nzeiteriuroa.org.nz> see ‘Will I be paid if a strike goes ahead?
⁸ PPTA “PPTA advice for members re: strike action 29 May, regional rolling strikes 17 – 21 June 2019 and rostering home, 4 June – 2 July 2019” (2 July 2019) <ppta.org.nz> see ‘General Advice: …Teachers who are taking industrial action will not be paid for the day.’
⁹ NZEI Te Riu Roa “Frequently Asked Questions about actions and strikes” (9 March 2023) <nzeiteriuroa.org.nz> see ‘Can NZEI Te Riu Roa support me if a strike will cause my whānau hardship?’; New Zealand Companies Office “Restrictions on money-making activities” (accessed 6 October 2023) <www.companiesoffice.govt.nz>; NZBN “NEW ZEALAND POST-PRIMARY TEACHERS ASSOCIATION INCORPORATED (509071) (NZBN: 9429042706755) [Incorporated Society] Registered” (accessed 6 October 2023) <app.businessregisters.govt.nz>; NZBN “NEW ZEALAND EDUCATIONAL INSTITUTE TE RIU ROA INCORPORATED (509066) (NZBN: 9429042679943) [Incorporated Society] Registered” (accessed 6 October 2023) <app.businessregisters.govt.nz>
¹⁰ PPTA “Hardship fund letter” (accessed 6 October 2023) <www.ppta.org.nz> see: ‘Hardship grants are intended for periods of industrial action when a member’s salary is impacted and is limited to the pay periods affected. If you will suffer undue hardship, which is beyond the support your branch can provide, and you will not be able to get by with the loss of pay associated with industrial action, please complete a Hardship application form.’
¹¹ EdPay “Strike action” (accessed 6 October 2023) <edpay.govt.nz> see ‘the work bans and rostering home for different year levels do not affect the pay, there is nothing to you need to do in EdPay in relation to these.’; Simon Collins “Surprise gesture: Ministry of Education agrees to pay striking teachers ahead of talks on Thursday” NZ Herald (online ed, 4 June 2019)
¹² Collie and NZME Radio Ltd, Decision No. 2021-008 at [12]
¹³ Guideline 6.1
¹⁴ Guideline 6.2
¹⁵ Standard 6, Code of Broadcasting Standards in New Zealand
¹⁶ EdPay “Strike action” (accessed 6 October 2023) <edpay.govt.nz> see ‘Do employees who take part in the strike get paid? No, their pay will be deducted for their time spent at the strike action.’ and ‘the work bans and rostering home for different year levels do not affect the pay, there is nothing to you need to do in EdPay in relation to these.’; see also Simon Collins “Surprise gesture: Ministry of Education agrees to pay striking teachers ahead of talks on Thursday” NZ Herald (online ed, 4 June 2019)
¹⁷ Van der Merwe and Mediaworks TV Ltd, Decision No. 2019-015 at [21]