BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Breakfast – host commented with reference to ACT MP David Garrett, “He is a complete waster. He’s wasting our money, he’s wasting our time” – allegedly in breach of good taste and decency, controversial issues, accuracy and fairness standards

Findings
Standard 1 (good taste and decency) – contextual factors – not upheld

Standard 4 (controversial issues) – feedback and host’s comments did not amount to a discussion of a controversial issue of public importance – not necessary to present Mr Garrett’s response to host’s comments – not upheld

Standard 5 (accuracy) – comments were clearly host’s opinion not material points of fact – not upheld

Standard 6 (fairness) – Mr Garrett was the subject of extensive media coverage – should have expected criticism – host’s comments did not result in Mr Garrett being treated unfairly – not upheld 

This headnote does not form part of the decision. 

Broadcast

[1]   An episode of Breakfast was broadcast on TV One between 6.30am and 9am on 21 September 2010. At approximately 7.45am, the programme’s two presenters, Paul Henry and Pippa Wetzell read out feedback submitted by viewers. At the conclusion of the segment, Mr Henry said:           

There are a lot of people that are critical of my attacks on ACT as well, and my attacks on David Garrett. That to me is just extraordinary, just extraordinary. He is a complete waster. He’s wasting our money, he’s wasting our time.

Complaint

[2]   Vince Ashworth made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that Mr Henry’s comments describing David Garrett as a “waster, wasting our time” breached standards relating to good taste and decency, controversial issues, accuracy and fairness.

Standards

[3]   Standards 1, 4, 5 and 6 and guideline 5a of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These provide:

Standard 1 Good Taste and Decency

Broadcasters should observe standards of good taste and decency.

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance in news, current affairs or 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.

Standard 5 Accuracy

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/or
• does not mislead.

Guideline 5a

The accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[4]   TVNZ argued that to constitute a breach of Standard 1, the broadcast material must be unacceptable to a significant number of viewers in the context that it was shown, including the programme’s classification, the time of broadcast, the intended audience, and the use of warnings.

[5]   TVNZ noted that Breakfast was aimed at an adult audience. It said that the programme endeavoured to include a range of views in the viewer feedback segment, and that the audience expected the presenters to offer their personal opinions on the views sent in to the programme. During this particular episode, Mr Henry acknowledged that much of the feedback was “critical” of him and the views he had expressed about David Garrett, and then responded with his personal perspective, TVNZ said.

[6]   The broadcaster maintained that the audience expected Mr Henry to voice his personal opinion, and that he was entitled to do so. It did not consider that on this occasion his views were contrary to standards of good taste and decency, particularly as Mr Garrett had been the subject of considerable criticism following the revelation that he had fabricated a fake identity by appropriating the identity of a deceased baby, and had been arrested for assault in 2002. It noted that some commentators found this behaviour particularly reprehensible given Mr Garrett’s stance on law and order issues.

[7]   TVNZ concluded that Mr Henry’s comments did not breach Standard 1 in this context.

[8]   Turning to Standard 4, TVNZ noted that the Authority had typically defined a controversial 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” (e.g. Powell and CanWest TVWorks¹). It maintained that, while Mr Henry’s brief comment did not require “balance”, the comments came in the wake of revelations about Mr Garrett’s actions, which had been covered extensively in the media. It therefore considered that significant viewpoints had been presented on these issues, and it declined to uphold the complaint under Standard 4.

[9]   With regard to accuracy, TVNZ argued that Mr Henry’s comment was clearly his personal opinion, and distinguishable from facts presented during the programme. It concluded that Mr Henry’s opinion of Mr Garrett was not a material point of fact, and it declined to uphold the Standard 5 complaint.

[10]   Finally, considering Standard 6 (fairness), TVNZ reiterated its view that Mr Henry’s comment was his personal opinion, to which he was entitled. It argued that, “In his publicly held position as an MP, David Garrett would expect to receive fairly robust criticism from the media, particularly at a time when he was embroiled in a widely reported controversy.” It considered that Mr Henry had prefaced his comment by acknowledging that many people had criticised his views on the issue, and that his comment was not vitriolic or unfair in the context.

[11]   Accordingly, TVNZ declined to uphold the fairness complaint.

Referral to the Authority

[12]   Dissatisfied with the broadcaster’s response, Mr Ashworth referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[13]   The complainant argued that the programme was biased, because Mr Henry acknowledged that many viewers had submitted feedback in support of David Garrett, but he refused to read out their views because he considered him to be a “waster”. He said, “Given that Mr Garrett was not in a position to respond and was not invited to give his interpretation of the events which led to Mr Henry’s remarks, this surely is unfair and an abuse of media power.” He maintained that the comment was not accurate because “Mr Garrett was considered as being very effective” as an MP.

Authority's Determination

[14]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 1 (good taste and decency)

[15]   When we consider an alleged breach of good taste and decency, we take into account the context of the broadcast. On this occasion, the relevant contextual factors include:

• Breakfast was an unclassified news and current affairs programme
• the viewer feedback segment and the host’s comments were broadcast at 7.45am
• the programme’s adult target audience.

[16]   The Authority has previously stated that standards relating to good taste and decency are primarily aimed at broadcasts that contain sexual material, nudity, violence or coarse language (e.g. Yeoman and TVNZ²). On this occasion, we consider that the host was simply commenting on the content of the viewer feedback, and more broadly on a topic which had received extensive media coverage. Mr Henry acknowledged that a lot of the feedback criticised his views, before offering his own opinion on Mr Garrett’s actions in firm, but not intemperate language.

[17]   Taking into account the contextual factors, particularly that Breakfast was an unclassified current affairs programme aimed at adults, we consider that most viewers would not have been offended by Mr Henry’s brief comments. We therefore decline to uphold the Standard 1 complaint.

Standard 4 (controversial issues – viewpoints)

[18]   Standard 4 states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[19]   In our view, the comments subject to complaint constituted a brief expression of opinion by Mr Henry in response to some of the viewer feedback, and did not go into any depth on issues relating to Mr Garrett’s actions. We do not consider that the viewer feedback combined with Mr Henry’s brief comments constituted a “discussion” for the purposes of Standard 4. In any case, we note that the story about Mr Garrett received extensive media coverage (see paragraphs [6] to [10] above), and we consider that most viewers would have been aware of the circumstances and of Mr Garrett’s viewpoint on the matter.

[20]   Accordingly, we decline to uphold this part of the complaint.

Standard 5 (accuracy)

[21]   Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead.

[22]   Statements which are clearly distinguishable as comment or opinion are exempt from accuracy under guideline 5a to Standard 5. We consider that viewers would have understood that Mr Henry was offering his personal opinion in response to the viewer feedback segment. Accordingly, we find that the accuracy standard did not apply to the comments, and we decline to uphold this part of the complaint.

Standard 6 (fairness)

[23]   Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[24]   On this occasion, we agree with TVNZ that, as a public political figure, and at a time when he was the subject of extensive media coverage, David Garrett would have expected robust criticism. The Authority has previously stated, in relation to criticism of public figures:³

The Authority observes that the fairness standard does not prevent criticism of public figures. Indeed, it is an essential element of free speech that even the most trenchant criticism of public figures be allowed. ...The question for the Authority is whether that criticism overstepped the boundaries of fairness, that is, whether it strayed into abusively personal territory.

[25]   In our view, this was not such a case. Mr Henry’s comments were brief, were not abusive, and related to Mr Garrett in his role as an MP, rather than his personal character. Further, Mr Henry acknowledged that a lot of the viewer feedback disagreed with his own views.

[26]   Accordingly, we find that Mr Henry’s comments did not result in Mr Garrett being treated unfairly, and we decline to uphold the Standard 6 complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
22 February 2011

Appendix

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

1                  Vince Ashworth’s formal complaint – 21 September 2010

2                 TVNZ’s response to the complaint – 3 November 2010

3                 Mr Ashworth’s referral to the Authority – 15 November 2010

4                 TVNZ’s response to the Authority – 23 December 2010

¹Decision No. 2005-125

²Decision No. 2008-087

³Kiro and RadioWorks, Decision No. 2008-108 at paragraph [78]