Attorney General of Samoa and Television New Zealand Ltd - 2009-066
- Joanne Morris (Chair)
- Mary Anne Shanahan
- Tapu Misa
- Paul France
- Attorney General of Samoa
ProgrammeOne News, Tagata Pasifika
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
One News and Tagata Pasifika – reported on One News investigation into criminal gangs, drugs and weapon smuggling in Samoa – allegedly in breach of law and order, balance, accuracy and fairness standards
Standard 4 (balance) – items discussed controversial issue of public importance – only presented one perspective, that the situation in Samoa was extremely serious – viewers needed information about the gravity of the problem in a wider context and from other perspectives – upheld
Standard 5 (accuracy) – reporter accurately reported what she was told by the “Makoi boys” but under the circumstances should have questioned their reliability and made efforts to corroborate what they said – complainant’s other concerns appropriately dealt with under balance – one aspect upheld
Standard 6 (fairness) – “Makoi boys” did not understand the nature of the programme or their proposed contribution – upheld – programme did not distort events or views expressed – no information or pictures gathered by deception – not upheld
Standard 2 (law and order) – programmes conveyed that guns and drugs trade was undesirable and a problem – did not encourage or condone criminal activity – not upheld
Section 13(1)(a) – broadcast statement
Section 16(1) – payment of costs to the complainant $5,000
Section 16 (4) – payment of costs to the Crown $2,000
This headnote does not form part of the decision.
 An item on One News, broadcast on TV One at 6pm on 6 April 2009, reported that an investigation had found that in Samoa “there’s a lucrative trade in drugs from New Zealand and that in turn is helping pay for the smuggling of some heavy weaponry from the United States and China”.
 One News’ Pacific Correspondent explained that she had been in Samoa for a week, and had discovered that “while gun smuggling has been a problem for many years, what has upped the ante is the combination of drugs coming in from New Zealand and China, combined with young thugs who have no history of Samoan culture”. She spoke with the “Makoi boys” whose business, she said, was dealing marijuana and ‘P’, and whose weapons of choice were machetes, rocks and axes. The “Makoi boys” were shown wielding these tools and smoking.
 The reporter went on to say that smuggling guns of all sizes from the United States was “becoming big business”. From a “secret location”, she gave viewers a glimpse of the types of weapons available, and the price range. Viewers were shown a number of guns stored in a car boot. The reporter then interviewed a gang member who had been deported to Samoa from a US prison, who, she said, was surprised at what was now available in Samoa. However, she said, “while high powered weapons are easily available in Samoa, they’re not often used. It’s more about flexing muscle.”
 The reporter interviewed a “security specialist”, Herman Loto Sakaria, who said that “if South Auckland had access to the guns that you can get here in Samoa, South Auckland would be a war zone”. The reporter then said that the people smuggling weapons were also dealing methamphetamine brought in from New Zealand. There were several drug lords, she said, and “their clients include people in top positions of responsibility, so they work in the shadows”. The reporter interviewed a masked man, whose voice was distorted, about dealing drugs and the fact that the younger generation of dealers was “out of control”.
 The reporter stated that “the police... generally turn a blind eye to what’s going on”, and the masked man was shown saying that “I stay away from their business, they stay away from mine”. “It’s an arrangement that suits everyone, except maybe the Samoan people”, said the reporter.
 Back in the One News studio, a presenter asked the reporter how the police had reacted to the situation in Samoa. The reporter responded:
Well, the Police Commissioner wouldn’t appear on camera but he did tell One News that most of the guns in Samoa are used just for sport. We know that’s not the case. And he also said there’s not really a hard drugs problem in Samoa. We also know that’s not the case. And perhaps one of the reasons the Police Commissioner did not want to appear on camera is that he has been accused of gun smuggling himself. A gun commission found he did have a case to answer for but he was not investigated because the Samoan cabinet voted that he shouldn’t be.
 At 10.55pm on TV One on 9 April 2009, Tagata Pasifika broadcast an extended version of the One News story. That item also included comments from Mical Hickey, a tattoo artist and Kiwi expatriate, who discussed how the deportees struggled to adapt to the matai village system in Samoa, and another former gang member who had been deported from the US.
 The Attorney General of Samoa, on behalf of the Government of Samoa, lodged a formal complaint with Television New Zealand Ltd, the broadcaster, alleging that the programmes breached broadcasting standards because viewers had been left with a false impression of Samoan culture and Samoa today.
 The complainant stated that, on 30 or 31 March 2009, Mical Hickey, who appeared in the item, was contacted by Mr Herman Loto Sakaria, also in the item, who told Mr Hickey that a TVNZ crew was in Samoa investigating the lives of Samoan deportees. Mr Hickey worked with a deportee, and Mr Hickey and Mr Sakaria set up a meeting with the deportee at the tattoo studio where he worked.
 On 1 April, the reporter, identifying herself as from TVNZ, her two cameramen and Mr Sakaria met, either separately or together, with Mr Hickey, the deportee, and the man who owned the tattoo studio. The reporter allegedly told these men that she was making a documentary about gang life in the Pacific Islands and deportees from the United States, and that the purpose of interviewing and filming was to find out how Samoan deportees coped with the way of life in Samoa. The complainant said that at no stage did the reporter say she was from One News.
 The reporter then interviewed the deportee about his life in America and in Samoa and the effect that the move had on him. She also interviewed the man who owned the tattoo studio about gang life in America, his deportation to Samoa, and life in Samoa. The complainant said the reporter did not verify whether this man was originally from the United States, or any aspect of his story; he was actually from New Zealand. The reporter told him she had conducted interviews elsewhere and that it was all “confidential”.
 Around midday on 3 April, the reporter and her camera crew were taken by the tattoo studio owner to an area where a group of Samoan cousins were building a house. The complainant said “the group were told in advance to dress as gangsters because the [reporter] coming was doing a film on Samoan gangsters around the world”. The men dressed themselves as they considered gangsters would dress, many of them covering their faces. On arrival, the reporter left the building site and went to the nearby house of one of the men, where she allegedly instructed the group on what it should do. The instructions were to “style themselves like a bad gang”, the complainant said, that is, to “cover their faces, and roll their (tobacco) cigarettes and smoke them as if they were smoking marijuana. The men were also asked to wave around some machetes and an axe (which were tools they had been using to build the house nearby)”. The men were filmed for about 15 minutes as they “acted out their role as ‘gangsters’”. When asked by the men if they would get in trouble for what they were doing, the reporter allegedly responded that there was nothing to worry about as the filming was only for a documentary. The men understood that the footage would be used to make a DVD.
 Later that afternoon, the reporter returned to the tattoo studio and asked for “existing photos from [the owner’s] computer of [him] holding guns, to see [his] guns, and [for TVNZ] to take their own photos of him holding his guns”. The man allegedly agreed to show the reporter his guns at his house if she brought him alcohol in exchange. The reporter allegedly agreed, and set up cameras at the man’s house. By then, the man had invited five friends over for a party, including some who had been deported to Samoa from the US. The reporter and camera crew filmed some of the party. Again, the complainant said, “the party goers understood [the reporter] to be making a documentary about deportees from America and how they are getting on in Samoa”. The reporter told them to enjoy themselves and ignore the cameras. Some of the group covered their faces. During the party, the reporter asked the tattoo studio owner if she could see his guns. The man denied having any real guns at his house. The reporter and camera crew left around 7.30–8.30pm, having told the party that they were returning to New Zealand early the next morning.
 The complainant said that, while there was some uncertainty among the men who featured in the programmes about the exact dates and times at which the filming and interviews took place, it appeared clear that:
They were never told the filming and interviews were for a TVNZ One News story about gangs and drugs in Samoa (in fact, they were led to believe it was for a documentary on deportees adapting to life in Samoa and other Pacific Islands and/or gangsters around the world;
They were “acting up” for the camera, based on instructions from [the reporter] as to what she wanted to see.
 Further, the tattoo studio owner was adamant that the reporter agreed to and did supply alcohol at his house on 3 April in exchange for viewing his guns – a deal which was later reneged on, the complainant said, because he did not in fact have any guns.
 In light of these alleged facts, the complainant maintained that the programmes had breached Standard 2 (law and order), Standard 4 (balance), Standard 5 (accuracy) and Standard 6 (fairness) of the Free-to-Air Television Code.
 The Attorney General argued that obtaining film footage and interviews using the methods described was inaccurate and unfair because the footage was “misleading to the public and a distortion of the original events”. Further, the interviewees allowed this based on the false pretence that they were to feature in a documentary on deportees from the US and New Zealand, and/or gangsters around the world. The complainant considered that “the manner in which the filming and interviews were obtained was plainly duplicitous”, and the programmes were unbalanced and partial as a result.
 Further, the complainant argued that TVNZ glamorised and condoned smoking marijuana, and using guns, violence and intimidation to allegedly “control” particular areas of Samoa, in breach of the law and order standard.
 The complainant maintained that, using the interviews and footage obtained, TVNZ made numerous allegations in the programmes about what was occurring in Samoa, which were inaccurate and misleading made worse by the “suspect reliability of the interviewees and staged nature of the scenes filmed”. The complainant considered that the programmes “blatantly [misrepresented] the facts”, and denigrated Samoan society. He alleged that the following ten statements in the programmes breached Standard 5:
- “Criminal gangs are building up a terrifying arsenal.”
- “There is a lucrative trade in drugs from New Zealand and that in turn is helping pay for the smuggling of some heavy weaponry from the United States and China.”
- “While gun smuggling has been a problem for many years, what has upped the ante is a combination of drugs coming in from New Zealand and China combined with young thugs who have no history of Samoan culture. In Samoa strong tradition balances on a knife edge alongside a growing guns and drugs culture.”
- “[The Makoi boys’] business is selling marijuana and ‘P’.”
- “[The Makoi boys’ patch is] controlled with their weapons of choice: machetes, rocks and axes.”
- “In Samoa there is another weapon of choice. Guns of all sizes are being smuggled in from the US and it’s becoming big business. We are in a secret location which keeps changing. ...Even gang members from the States... are surprised at what’s now available.”
- “While high powered weapons are easily available in Samoa they are not often used. It’s more about flexing muscle.”
- “Those smuggling and selling weapons also deal methamphetamine brought in from New Zealand. There are several drug lords. Their clients include people in top positions of responsibility, so they work in the shadows.”
- “It appears that young Samoans from New Zealand and others with gang affiliations overseas are attracting unwanted attention by selling drugs to kids.”
- “The police... generally turn a blind eye to what’s going on.”
 The Attorney General sought public acknowledgement by TVNZ that the programmes breached broadcasting standards, a full and public apology, and a retraction of the story.
 Standards 2, 4, 5 and 6, and guidelines 2b, 5b, 5c, 5d, 5e, 6a, 6b, and 6c of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These provide:
Standard 2 Law and Order
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.
Factual programmes should not glamorise criminal activity or condone the actions of criminals.
Standard 4 Balance
In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
Standard 5 Accuracy
News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
5b Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.
5c Broadcasters must ensure that the editorial independence and integrity of news and current affairs is maintained.
5d Factual reports on the one hand, and opinion, analysis and comment on the other, should be clearly distinguishable.
5e Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.
Standard 6 Fairness
In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.
6a Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.
6b Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.
6c Programme makers should not obtain information or gather pictures through misrepresentation or deception, except as required in the public interest when the material cannot be obtained by other means.
Broadcaster’s Response to the Complainant
 TVNZ considered that the complaint was based solely on TVNZ’s alleged “duplicitous” behaviour in the particular filming and interviews in question. It emphasised that the filming and interviews were only part of a wider investigation by the reporter into drugs and guns in Samoa, and she did not rely solely on the filming and interviews to support her story. It noted that some of that investigation was referred to in the programmes, such as in the interview with the masked man, the footage of guns in a car boot and the price list for them, and the comments from the security specialist Mr Sakaria.
 TVNZ attached a number of official reports, as well as a sample of Samoan media reports, that recognised the growing problem with guns and drugs in Samoa. It noted that Samoan media reports also illustrated the regular use of machetes as weapons.
 The broadcaster stated that it understood that, following the One News report, the police initially made some arrests and took measures to deal with the problems locally, including increased maritime surveillance and calling on village Councils to report suspicious activity. TVNZ noted that the complainant had not challenged the statement made in the programmes that the Police Commissioner of Samoa had himself been accused of gun smuggling. It included excerpts from the report of the Commission of Inquiry that had investigated the alleged gun smuggling.
 TVNZ also considered that the complaint was not concerned with the coverage of the deportation issue, noting that this was the theme of the programmes and the only context in which the interviews with Mr Hickey and the deportee were broadcast.
Response to background facts
 TVNZ noted that the complainant had not provided any information or supporting documentation about the nature of the “inquiries” that formed the basis for its version of events. It stated that “the reporter and those who accompanied her categorically deny the allegations”, and that TVNZ had come to the clear conclusion that the allegations of duplicitous conduct by TVNZ and the reporter were unfounded. It was adamant that the reporter was honest in her dealings with the men interviewed and the “Makoi boys”, and that she had not instructed them on what to say or do in front of the camera, she did not ask them to smoke tobacco as if it were marijuana (the men chose to smoke their own marijuana), and she did not give them alcohol to induce them to do or say anything for the story.
 TVNZ included evidence which it considered contradicted, or was inconsistent with, the men’s accounts. It provided photos which showed the One News insignia was clearly displayed on the camera equipment which was used for all of the filming, as well as on the microphone used to interview the tattoo studio owner, Mr Hickey, and the deportee. It noted that the tattoo studio man had accepted in his affidavit that the reporter had given him her business card, identifying her as TVNZ’s Pacific Correspondent.
 Further, TVNZ maintained that the reporter was well known in Samoa as a news reporter, and that “the footage shows that at least some of the men recognised her in that context, commenting that she was the reporter who had been thrown out of Fiji”. The reporter had also written to the sources for the story, other than those referred to in the complaint, to assure them that their identities would not be revealed, and had signed the letter with reference to One News.
 The broadcaster enclosed an email from the reporter to Mr Sakaria the “security specialist”, which it considered showed the importance of the reporter accurately representing those who appeared in the story, and which provided a tentative list of questions for other interviewees (besides those in the complaint) about guns. In the email the reporter said, “I would rather they just don’t answer something than lie about it. We want to accurately represent them.”
 Referring to the item, TVNZ noted that two of the men interviewed – the tattoo studio owner and the deportee who worked there – had been questioned about access to weapons and drugs. The footage of other men, the “Makoi boys”, showed them admitting to selling marijuana and P, smoking marijuana and admitting it was theirs, and acting menacingly with the weapons. TVNZ emphasised that “there is no sign that any of this was on instructions from TVNZ”. This was supported by the log of discussions before and after the interview, it said, which revealed that the “Makoi boys” discussed in Samoan how much they would tell the reporter, and then without any prompting from her (as she does not understand Samoan), they decided to reveal their dealings in marijuana and other aspects of their lives. It noted that the reporter prefaced her questions about drug use saying that the men did not have to answer them. Two of the “Makoi boys” also said they had jail terms for injuring people with a machete and an axe, besides using them as tools for work. TVNZ enclosed a transcript of these interviews, as well as photos of the substance the “Makoi boys” had been smoking which it said had been verified by a former police detective as being marijuana.
 With regard to the affidavits provided by the complainant, TVNZ considered that some of the accounts were inconsistent, or of little relevance to the matters subject to complaint. It pointed out that three of the interviewees gave different accounts of where and when they were interviewed. One of the “Makoi boys” stated that a man in the village had told them how to dress and what to do, although another of the “Makoi boys” believed it was the tattoo studio man, even though he arrived with the camera crew. TVNZ maintained that the reporter and camera crew knew nothing about that. Three men from the village also gave different accounts of what they were told the filming was for. Their accounts of what they were smoking conflicted with the photographic record, the filming, the transcripts, and the evidence of the police detective, TVNZ said.
 TVNZ maintained that several of the men interviewed had been arrested following the story, and that in the circumstances, it was not surprising they would deny what they had said on camera. It considered that this raised serious concerns about the reliability of the affidavits provided.
Reporter’s version of events
 TVNZ said that the reporter was accompanied by two or three colleagues during all of the events in question, and they categorically denied that the interviews and footage were obtained in the manner alleged.
 TVNZ maintained that the reporter had met with the tattoo studio owner and the deportee who worked there on 2 April. She had told them she was from One News, “as she always does”, and explained that she was planning to run a series of stories about Polynesian gang culture in Samoa, Tonga and Hawaii. She also explained she was in Samoa looking at guns and drugs and wanted to know about these men’s experiences. TVNZ said she had introduced herself to Mr Hickey in similar terms.
 The tattoo studio owner was concerned that the story would be shown in Samoa. The reporter told him it was for the New Zealand market but could not guarantee it would not be shown in Samoa. He decided to conceal his identity for the interview. The other deportee interviewed was adamant he did not want to conceal his identity.
 The tattoo studio man told the reporter that he was from the US and grew up there. TVNZ said that he was deported from the US and whether or not he was originally from New Zealand was irrelevant. With regard to him showing the reporter his guns at his house, TVNZ said:
[The reporter] says she asked [the man] if he had any guns. He told her he did not have any guns at his house. She says he did not offer to show her any guns, and he did not ask [her] for alcohol in return for showing guns. No such arrangement was offered or agreed.
 On 3 April, the reporter interviewed Mr Hickey. At 11.30am on 4 April the reporter returned to the tattoo studio to ask the owner if they could film photos of him and friends with guns at parties in Samoa, and said their faces would be blacked out. He agreed, and the filming took place. Afterwards, the owner asked the reporter if she would like to meet some people he knew who dealt drugs, and she followed him to the village.
 TVNZ maintained that no one had told the “Makoi boys” what to say or how to act, and that the reporter would not have proceeded with the interview if she thought someone had. She denied instructing them herself, which was confirmed by Mr Sakaria and another man.
 According to TVNZ, the reporter said she was frightened by the scene but introduced herself as being from One News. One of the men said he had seen her on the news before. She asked the men if they wanted to cover their faces, because if they spoke about drugs they would be targeted by police. The reporter told TVNZ that the men had chosen to roll marijuana and smoke it on camera. She and the men accompanying her all recognised the substance from its appearance and its smell.
 At around 5pm the same day, the reporter and her crew took some alcohol to the tattoo studio man’s house as a thank you for his time. When they arrived a group of other men was there already drinking, most of them deportees. The interviews had all been completed at this stage, although the cameraman took some “cutaway” shots of the group, “unidentifiable shots for general vision only, as these men were not part of the story”. None of the alcohol purchased by the reporter was consumed at this time. The reporter and her colleagues left, and returned to New Zealand early the next day.
Consideration of the Standards
 TVNZ then turned to consider the complainant’s arguments under the standards nominated.
Standard 2 (law and order)
 TVNZ considered that for the purposes of guideline 2b to Standard 2, the news and current affairs programmes complained about were “factual programmes”, though it reserved the right to argue the contrary if the complaint was referred to the Authority.
 The broadcaster noted that the Authority’s practice note for Standard 2 stated that for a breach, the Authority needed to be convinced that a broadcast not only implicitly condoned the condemnation of a particular law, but also actively promoted disrespect for it. Further, the same approach applied where items described or portrayed a particular criminal behaviour. TVNZ considered the practice note stated that depiction or discussion of criminal behaviour was usually acceptable, unless the broadcast explicitly instructed how to imitate an unusual criminal technique, or if it glamorised the criminal activity.
 TVNZ maintained that the broadcasts had not glamorised crime or condoned the actions of criminals in the ways alleged by the complainant. It said:
The behaviour shown in the programmes was portrayed for what it was, revealing the existence of a problem. There was no element of promotion or encouragement of the activities. The programmes’ message was that this type of behaviour was a concern.
 TVNZ considered that the reporter introduced the issue in One News as one of strong traditions balanced alongside a growing guns and drugs culture. The guns and drugs aspect of the Tagata Pasifika item was also framed in a context of concern, it said, and did not condone the behaviour in any way.
 The broadcaster concluded that the programmes had not breached Standard 2.
Standard 4 (balance)
 TVNZ noted that the complainant’s concern was that the programmes “showed a complete lack of balance and impartiality” as a result of the manner in which the filming and interviews were obtained.
 First, the broadcaster considered whether the programmes had discussed a controversial issue of public importance to which the standard applied. TVNZ accepted that “the extent of weapons and drugs trading in Samoa” may be considered a controversial issue of public importance in Samoa, although the official reports and media coverage “would tend to suggest that the problem exists and in that sense it is not controversial”.
 However, TVNZ argued that the issue was not one of public importance in New Zealand. It considered that, while it was a matter of interest to the New Zealand public, “it has no, or no significant, impact on the New Zealand public”.
 Further, TVNZ believed that the complaint was about the interviews and filming of some of the people who appeared in the programmes, who were shown speaking about their own experiences. This did not constitute a controversial issue of public importance, TVNZ said, “they were simply people telling their stories and behaving as they chose in front of the camera”. It considered there was no controversy in terms of what they said or did.
 For these reasons, the broadcaster concluded that the balance standard did not apply to the issues raised in the complaint, which were more appropriately dealt with under fairness.
 TVNZ noted that the reporter made several requests for the Samoan Government and the Police Commissioner to appear on the programme to discuss the issues raised, but the requests were declined. It maintained that the Commissioner’s comments off camera were accurately reported.
 TVNZ declined to uphold the balance complaint.
Standard 5 (accuracy)
 The broadcaster noted that the Attorney General had complained that the methods used to obtain the footage and interviews breached guidelines 5b, 5c, 5d and 5e to the accuracy standard.
 With regard to the complainant’s argument that the footage and interviews were misleading and a distortion of the original events, TVNZ maintained that this hinged on the complainant’s version of events being correct. As it had determined that it was not correct, TVNZ considered this aspect of the complaint could not be upheld.
 The broadcaster went on to consider additional matters under guideline 5b, relating to “misleading” programme content. TVNZ argued that the reference to “misleading” in the guideline related to instances where the statements broadcast were correct, but the omission of other information meant the audience was misled. It said that the complainant had not stated what information had been omitted that resulted in the programme being misleading, but that “if it is simply the information alleged regarding the manner in which the information was obtained, that information is incorrect”.
 Turning to the reference to “alarming” viewers in guideline 5b, TVNZ contended that the threshold was high, particularly in news and current affairs. It considered that the complainant had not explained how the programmes were alarming, and said that it appeared that the story itself had not caused alarm either in Samoa or in New Zealand.
 TVNZ maintained that the “gun issue” was put in context by the reporter in both programmes making the observation that while weapons were easily available, “they’re not often used” and it was more about “flexing muscle”. This was reinforced by a comment from Mr Sakaria, the security specialist.
 Considering editorial independence and integrity (guideline 5c), TVNZ considered that, based on the facts, there were no grounds upon which to question the reporter’s integrity. It reiterated that the reporter had provided alcohol to the interviewees only after the interviews were completed, it was unsolicited, and the alcohol was not consumed while the reporter was present. It maintained it was not unusual to offer a gift where an interviewee had given up an entire day’s work to assist with interviews and filming requests.
 With regard to distinguishing fact from opinion, analysis or comment (guideline 5d), TVNZ again concluded that, given the facts, there was no issue to determine under this guideline.
 Guideline 5e states that broadcasters must take reasonable steps to ensure that information sources are reliable. TVNZ noted that no questions were raised at the time regarding the reliability of the men, the “Makoi boys”, referred to in the complaint and considered there was no reason to question their credibility. The accounts that were challenged were the personal accounts of the men’s own experiences and involvement. TVNZ stated that they were “consistent and confident in their responses”.
 The broadcaster noted that the complainant had listed ten statements from One News that it considered were inaccurate (see paragraph ). It reiterated that it was satisfied the scenes shown in the programmes were not staged, and that the interviewees were truthful in their responses. Further, the interviews and filming of the men referred to in the complaint were not the only sources for the story or for most of the statements listed by the Attorney General. It noted that other sources included Mr Sakaria, based on his professional observations as a security specialist, the masked man who was fully disguised and his voice distorted, and another man who showed the reporter the guns in the car boot at a secret location. TVNZ said the reporter had also spoken to several other people as part of the investigation and that, given the subject matter, it was hardly surprising that they spoke in confidence.
 TVNZ said the only statements challenged in the complaint that were solely supported by the interviews and filming were that “the Makoi boys’ business is selling marijuana and P”, and that “[the area filmed is] their patch controlled with their weapons of choice: machetes, rocks and axes”. It maintained these statements reflected what the reporter was told.
 The broadcaster concluded that the programmes were not inaccurate and declined to uphold the Standard 5 complaint.
Standard 6 (fairness)
 TVNZ considered that the complaint under Standard 6 was that TVNZ did not deal justly or fairly with the men referred to in the complaint, in breach of guidelines 6a, 6b and 6c. It reiterated that the interviews with Mr Hickey and the deportee did not feature in the One News item “or in any aspect of the Tagata Pasifika programme that is the subject of this complaint”.
 The broadcaster said that, if the facts alleged by the complainant were correct, it accepted that “there would be issues of real concern under this standard. However, given [TVNZ’s] findings there is no basis to support any unfairness in the way the participants were treated”.
 TVNZ declined to uphold the fairness complaint.
Referral to the Authority
 The complainant did not receive the decision from TVNZ within the 20 working-day statutory timeframe. The Attorney General therefore referred the complaint to the Authority under section 8(1C) of the Broadcasting Act 1989.
 The complainant attached sworn affidavits from a number of the men who appeared in the programmes, attesting to the facts as set out in the original complaint. He reiterated that the Government of Samoa was concerned with the inaccuracy of the programmes, and the “apparently duplicitous means by which the news item and [Tagata Pasifika] were put together”, and considered that the programmes denigrated Samoan society and misrepresented the facts.
Broadcaster’s Response to the Authority
 TVNZ did not make any further comments on the complaint.
Further comments from the Complainant
 The complainant made further comments reiterating the arguments raised in his original complaint. He focused on the One News item, as he considered the Tagata Pasifika item largely repeated the One News item.
 In relation to balance, the complainant maintained that the One News item discussed a controversial issue of public importance to New Zealand, because it claimed that drugs from New Zealand were at the heart of the gun smuggling and drug trade in Samoa. He argued that the reporter should have contacted New Zealand law enforcement agencies, customs and police to verify the claim that the drugs were from New Zealand. Further, the Attorney General asserted that neither the Samoan Police Commissioner nor any other police officer had been approached by anyone from TVNZ requesting an interview on guns, drugs and gangs in Samoa.
 Turning to accuracy, the complainant reiterated the view that the One News item was inaccurate. He maintained that the “Makoi boys” “were neither members of a gang nor criminals”, attaching a letter from the Ministry of Police and Prisons in Samoa which confirmed that none of the “Makoi boys” had any criminal convictions. The complainant also asserted that they were treated unfairly as they were not told the reporter was from One News.
 The complainant provided affidavits from the Assistant Police Commissioner, another police officer, a narcotics expert, and the Mayor of Vailoa, and supplementary affidavits from the men, including some of the “Makoi boys” who had already provided affidavits for the original complaint.
Further comments from the Broadcaster
 TVNZ submitted that the complainant had raised new matters in his latest submissions which were outside the scope of the original complaint and the referral, for example the claim that the reporter had not spoken to Samoan police or local authority figures.
 TVNZ provided two sworn affidavits from the reporter, an affidavit from the cameraman who had accompanied her, and an affidavit from the expert who had identified marijuana in the photos taken by the One News crew.
 The reporter provided a comprehensive background to her investigation, a detailed account of her dealings with the men in Samoa, and a categorical denial that any part of the items was “staged” and of the allegations made against her by the complainant. The camera operator corroborated the reporter’s evidence, and the drugs expert confirmed his original opinion that the substance being smoked by the “Makoi boys” in the village was marijuana. With respect to her interview with the “Makoi boys”, the reporter said the following:
The drive was only about 5–7 minutes. We drove in to a long driveway and parked. [The tattoo studio owner] went off and got the guys and we stayed in the cars. It was around 12.30pm. Two minutes later they came out – about seven of them. One was carrying an axe, another a machete. We got out of the cars. It was quite frightening to me. I just smiled and introduced myself [by name and as being] from One News as I always do. [The tattoo studio owner] said we could do the interview at a small fale so we walked the 20m there carrying our equipment. At that point I did not mention guns or drugs because I had no prior knowledge of them and I had no way of knowing how they would react.
Before I started the interview I asked them if they were ok being identified or did they want to cover their faces. I gave them this option at the beginning because I felt that if they told us what they do on camera they would obviously be targeted by Police. Two of them said no, another one had a bandana tied to his belt and he put that over his face and another two already had sunglasses on. We started to use [the tattoo studio owner] as a translator but then another guy started answering the questions himself in English. I felt very uncomfortable as it was clear they were already doped up. One guy raised his sunglasses at one stage and his eyes were very bloodshot.
 TVNZ asserted that a TVNZ contractor had met with the Police Commissioner at the police station. The contractor gave the Commissioner an outline of the story and asked for an on-camera interview. When the Commissioner declined the interview, TVNZ said, the contractor took notes of the Commissioner’s verbal responses which were included in the item.
 The broadcaster turned to consider the issues of broadcasting standards raised in the complaint. Looking first at balance, TVNZ reiterated the assessment given in its original response to the complaint, stating that “when it screened in New Zealand the item caused barely a ripple of comment”. With regard to whether the issue of dealing drugs and guns in Samoa was controversial, TVNZ noted that the assistant Police Commissioner acknowledged in his affidavit that:
I do not dispute that there are illegal guns imported into Samoa as the Ministry has investigated several cases of unlawful possession of firearms and illegal guns.
It is also not disputed that there are drugs in Samoa. But the main illegal drug found here in Samoa is marijuana.
 TVNZ also noted that other international bodies had recorded the trade in drugs and weapons in Samoa. It emphasised again that the Police Commissioner had been given an opportunity to give a response on camera for the item, but had declined. It maintained that the Assistant Police Commissioner was mistaken in his assertion that no one from TVNZ had approached the Commissioner requesting an interview.
 Turning to accuracy, TVNZ considered that the focus of the complaint was the allegation of dishonest and unethical behaviour by the reporter. It emphasised that the allegations were based solely on the evidence of the interviewees, including the “Makoi boys”, who claimed to have lied in the interviews for the item. TVNZ noted that it had already made detailed submissions addressing the reporter’s behaviour in its original decision.
 The broadcaster rejected the complainant’s contention that the reporter took a particular “approach” to the matter other than a fact-based inquiry. It considered it was irrational to suggest that the reporter had any reason to fabricate difficulties in Samoa where none existed. TVNZ provided an article from the Samoa Observer dated 25 August 2009 which reported the arrest of a suspected drug lord. It also maintained that the Police Commissioner had been found by an Independent Commission of Inquiry to be linked with gun smuggling. The inquiry concluded:
The Commissioner was derelict if not corrupt in the performance of his duties...
The Commissioner of Police improperly concealed illegal firearms and an unlawful weapon at his house for about a month...
 TVNZ noted that the inquiry recommended that the Commissioner be investigated further but the Samoan Cabinet ordered that he not be.
 The broadcaster concluded that there was no evidence of partiality in the reporting of this matter.
 TVNZ submitted that the Authority should bear in mind that in a complaint of this nature, where the parties had irreconcilable accounts of events, the broadcaster did not bear the onus of proving that the broadcast was accurate and did not mislead. It considered that the Authority should be open to declining to determine the issue of whether the “Makoi boys” were being truthful in their interviews with the reporter.
 On the issue of the reporter’s conduct, TVNZ submitted that, as it was a serious allegation and there was no evidence to support it, the issue must be dismissed. It considered that the further affidavits provided by the complainant did not present any credible evidence, while the reporter had prepared a detailed affidavit strenuously denying the allegations, and which was corroborated by TVNZ crew. Further, it noted that the allegations had already severely impacted on her reputation, such that the Authority must make all attempts to determine this aspect of the complaint.
 Finally, TVNZ reiterated that the story was not confined to the “Makoi boys”, even though the complainant suggested that their views were the only evidence the reporter had to support the story. Aside from confidential sources, official reports and other news stories recorded the existence of problems with guns and drugs in Samoa, TVNZ said, and copies could be provided if necessary. It noted that on 11 August 2009 Radio New Zealand reported that “Police in Samoa have found a large quantity of illegal drugs such as cannabis”.
 Looking at fairness, TVNZ maintained that none of the people who featured in the programmes was treated unfairly. It reiterated that the reporter and TVNZ crew were identified in a manner recognisable to the interviewees, and that one in particular recognised her as being from the news. TVNZ referred to the reporter’s affidavits in support of this assertion.
 The broadcaster reiterated the points made in its original decision with regard to the complainant’s assertions that the men were told the reporter was making a documentary and that she had bribed them with alcohol.
 TVNZ concluded by stating that it rejected the points made in the complainant’s final submissions, and by reiterating that the programmes had not breached broadcasting standards.
Further Comments from the Complainant
 The Attorney General disagreed that new points had been raised in the complainant’s response, and maintained that a final comment was permitted on the points of the original complaint and any other matters raised by the broadcaster. He argued that TVNZ had raised new matters in its decision on the complaint.
 The complainant disagreed with TVNZ’s argument that, as it was disputed that the reporter had instructed the men how to act for the interview, there was a conflict in the evidence provided and the Authority should therefore decline to determine this point. He submitted that the Authority was able to determine the complaint on the evidence before it, and particularly the substantial affidavit evidence. The complainant also considered that the Authority was not required to determine which version of events was true in order to find a breach of the Code.
Broadcaster’s Final Comment
 TVNZ disputed that it had introduced a number of new elements in its original response, as they were raised in the complaint.
 TVNZ reiterated its belief that the men interviewed had been honest with the reporter. It said it was preferable for the Authority to rule on that point, but that it would be understandable if it was not in a position to decide whether the men had been truthful at the time of the interview, and at the time they swore their affidavits.
 The broadcaster also reiterated that there was no evidence to support the serious allegation made against the reporter’s honesty and integrity.
Authority’s Requests for Further Information from the Broadcaster
 The Authority asked TVNZ who, if anyone, among the reporter’s seniors was aware of the identity of her confidential sources at the time of the broadcasts, and what, if anything, those people did to verify the sources and the information used for the story.
 TVNZ said that, in general, the level of editorial supervision relating to confidential sources depended on the circumstances, but the “fundamental importance of the promise of confidentiality” had to be kept in mind at all times.
 In this case, TVNZ said, the identities of key confidential informants were disclosed to and considered by the editor of One News, and he was satisfied that they were trustworthy and reliable. One of them was well known to One News, the broadcaster said, and had provided valuable, reliable information in the past. The editor met with one of the sources before the trip to Samoa, and was satisfied with the veracity of the information given, which supported the general thrust of the story.
 The editor did not know the identities of the other confidential sources who met with the reporter and who spoke of their experiences and involvement. However, TVNZ said, “the reporter is a senior and well respected journalist. She was satisfied with their reliability, and in the absence of any information which brought this into question, her editor cannot reasonably be expected to second guess the reporter’s judgement”.
 The Authority noted that there was a direct conflict between the evidence of the Assistant Police Commissioner and a TVNZ contractor with respect to whether the Police Commissioner had been interviewed for the item. The Authority asked the broadcaster to provide a signed statement from the contractor which outlined:
- the date and time of the contractor’s interview with the Police Commissioner;
- whether any other people were present at the interview, and who they were;
- whether the contractor told the Commissioner that he represented TVNZ;
- the questions the contractor asked the Commissioner, and how they were answered; and
- whether there were any notes or recordings of the conversation which could be provided to the Authority.
 The Authority also noted that the affidavits from the “Makoi boys” stated that they were filmed on the morning of Friday 3 April 2009, while the reporter’s affidavit stated that the filming took place on 4 April. The Authority asked that the reporter double check the date for the record.
 Third, the Authority noted the reporter’s statements at the end of the One News item:
Well, the Police Commissioner wouldn’t appear on camera but he did tell One News that most of the guns in Samoa are used just for sport. We know that’s not the case. And he also said there’s not really a hard drugs problem in Samoa. We also know that’s not the case.
 The Authority asked whether those statements, and particularly the underlined portions, were based solely on the anecdotal evidence of the reporter’s confidential sources as outlined in her affidavit, or on other sources or information.
 TVNZ provided a sworn affidavit from the contractor who had allegedly interviewed the Police Commissioner. He confirmed that he had met with the Police Commissioner on 3 April, that the Commissioner was aware that he represented TVNZ and that he was made aware of the likely scope of the TVNZ item including drugs, guns and organised crime. TVNZ attached notes from the reporter’s notebook that she had taken during a phone call with the contractor after his interview with the Commissioner. TVNZ asserted that in that conversation, the contractor had informed the reporter of the Commissioner’s response and that formed the basis of her live cross at the end of the One News item. TVNZ maintained that the notes recorded the four areas that the Commissioner was questioned about, and his responses.
 With regard to the date of the interview with the “Makoi boys”, TVNZ said that the reporter had done the timeline based on Samoa time, and confirmed that they were interviewed on Friday 3 April Samoan time, or Saturday 4 April New Zealand time.
 TVNZ provided comments from the reporter about the statements made by her at the end of the One News item. She said that they were not based solely on anecdotal evidence from her sources, although they did play a role. The reporter considered that the Commissioner’s statement did not marry up with media reports and regional reports on the presence of hard drugs in Samoa. It was also evident from photos of Samoans with high powered weapons and the number of shootings in Samoa, including the assassination of a Government minister in 1999 and a triple murder in 2002, plus media reports about a number of incidents, that it was “glaringly clear that guns are not just used for sport”, she said.
 The reporter maintained that the increase of violent incidents involving weapons was well documented in Samoa. In 2006, the Government passed urgent legislation establishing a gun amnesty in a bid to reduce the large numbers of illegal weapons, and 360 were voluntarily handed in. The reporter considered that this was “a huge number for a small country”. She said the legislation was passed after a man tried to murder an MP; in March 2006 a shot was fired and the MP was wounded. It also came after a man was shot while the 2006 election results came in, she said. The reporter maintained that “in the rest of Polynesia – Cook Islands and Tonga – it is rare to have an incident involving a gun. In Samoa it is fairly common”. She provided articles reporting on the incidents involving guns that she had referred to in her comments.
Authority’s Request for Further Information from the Complainant
 Noting the conflict between the evidence of the Assistant Police Commissioner and the TVNZ contractor, the Authority asked the complainant to provide an affidavit from the Police Commissioner outlining:
- irrespective of whether the TVNZ contractor identified himself as representing TVNZ, whether the Police Commissioner had a meeting or interview with the contractor discussing the issues of guns and drugs in Samoa;
- if so, what questions the contractor asked the Commissioner, and how he answered them;
- whether the Commissioner told the contractor that “most of the guns in Samoa are used just for sport” (as referred to in the One News item), and if so, to what sports he was referring; and
- whether there were any notes or recordings of the conversation.
 The Authority also asked the complainant to clarify the date of the interview with the “Makoi boys”.
 The complainant provided an affidavit sworn by the former Police Commissioner. He maintained that it demonstrated that the man from TVNZ was “not a journalist and he did not at any time say he was working with TVNZ”. He said he was “simply the owner of the local film production company in Apia”. In his affidavit, the Police Commissioner confirmed that he had met with the man, but he did not know him as a journalist or an employee of TVNZ. The Commissioner maintained that at no stage had the man introduced himself as representing TVNZ. With regard to guns being used for sport, the Commissioner said that “the context I was referring to when I made this statement was sports and leisure such as clay shooting and game hunting (i.e. hunting pigeons). But obviously guns are also used in Samoa for culling livestock”.
 The complainant stated that the man who set up the interview with the “Makoi boys” was adamant that they were filmed on Friday 3 April.
 In response to TVNZ’s information about the reporter’s sources, the Attorney General argued that the item did not make it clear to viewers that the information had come from confidential sources, but instead “viewers were presented with simple statements presented as facts”.
Broadcaster’s Response to Further Information
 TVNZ maintained that the contractor worked for TVNZ and had interviewed many prominent people in Samoa for TVNZ including the Prime Minister, the Deputy Prime Minister and the Attorney General. It attached emails between the reporter and the contractor concerning a different story for which he had conducted interviews and obtained footage on TVNZ’s behalf. The broadcaster said that, if necessary, it could provide copies of numerous news items from the last few years featuring work by that contractor. Finally, TVNZ noted that One News screened nightly in Samoa so the people who had been interviewed by the contractor would have seen the results of those interviews.
Complainant’s Final Comment
 The Attorney General asserted that the former Police Commissioner “did not deny the presence of hard drugs in Samoa, but rather put the issue in context and introduced a balanced assessment based on his policing experience”. He considered that TVNZ had “flatly rejected” that assessment when the reporter told viewers, “we know that’s not the case”.
 The complainant maintained that the website references provided by TVNZ “at best... establish the presence of some hard drugs in Samoa”, which had not been denied by the Commissioner. However, the Commissioner had said that the problem “was not a large one”, the complainant said. He considered that the references relied on by TVNZ were “wholly inadequate to support the statement made by TVNZ to its viewers that it ‘knows’ the Police Commissioner to be wrong when he states there is not a big hard drugs problem in Samoa”.
 The Attorney General considered that the same applied to the Commissioner’s comments relating to guns in Samoa; he had not denied the fact that guns had been misused in the past, “but rather introduced some balance” and context by saying that most guns were used for sport. Again, the complainant said, TVNZ’s response did not support the reporter’s “absolute statement that she ‘knows’ that assessment by the Police Commissioner to be wrong”.
Authority’s Requests for Further Information from the Broadcaster
 The Authority asked TVNZ if One News screened nightly in Samoa, and whether it was edited for the Samoan market or was broadcast as it was in New Zealand.
 TVNZ stated that One News screened on both channels in Samoa – Apia Broadcasting (TV3) and Samoa Broadcasting (TV1) – every night, and was repeated on TV3 the next morning. It said that both channels also took stories that were about Samoa and included them in their own news bulletins.
 The members of the Authority have viewed a recording of the broadcasts complained about and have read the correspondence listed in the Appendix. The Authority determines the complaints without a formal hearing.
Standard 4 (balance)
 Standard 4 requires broadcasters to make reasonable efforts, or give reasonable opportunities, to present significant points of view when controversial issues of public importance are discussed in a programme.
 On this occasion, the two programmes discussed whether there was a serious problem with guns and drugs in Samoa to which authorities and police were not responding appropriately and/or “turning a blind eye”. In the Authority’s view, this constituted a discussion of a controversial issue.
 Given that New Zealand is home to a significant Pacific Island community, and that New Zealand has strong historical ties with Samoa, the Authority disagrees with TVNZ that the issue was not of public importance in New Zealand. The fact that One News is broadcast every night on two television channels in Samoa demonstrates a close link between the countries. The Authority also notes that the items specifically referred to methamphetamine being smuggled to Samoa from New Zealand.
 The Authority therefore finds that the items subject to complaint discussed a controversial issue of public importance to which the balance standard applied.
 On the issue of drugs, the items presented the views of the “masked man” on dealing drugs and the “new generation” of drug dealers, the “Makoi boys” who were allegedly smoking marijuana and dealing methamphetamine, and Mr Sakaria, a security specialist resident in New Zealand, who said that “Samoa’s pretty up there” in terms of criminal activity, guns and drugs. The reporter also stated that there were “several drug lords” and that some of their clients were in “top positions of responsibility”.
 Similarly, on the issue of guns, the items presented the views of the masked man, Mr Sakaria who considered that South Auckland would be a “war zone” if the guns in Samoa were available there, and a “deportee” who was surprised at the level of weapons available in Samoa, as well as images of guns in a car boot and a price list. The reporter also asserted that the Police Commissioner had been accused of being involved in gun smuggling.
 The Authority turns to consider whether each of the items was balanced.
 The Authority notes that the One News item was introduced as follows:
Presenter: We’ve two exclusives dominating tonight’s One News: the lethal concoction right on our doorstep. A Pacific paradise awash with guns and drugs which we’re helping supply...
Presenter: ...We begin with how criminal gangs are building up a terrifying arsenal. A One News investigation has uncovered the explosive mix in the Pacific Island of Samoa.
Presenter 2: We found there’s a lucrative trade in drugs from New Zealand and that in turn is helping pay for the smuggling of some heavy weaponry from the United States and China.
 In the Authority’s view, the cumulative effect of such a dramatic introduction coupled with the information presented in the item (see paragraphs  to ) was to create the impression for viewers that not only was the situation in Samoa extremely serious, but Government officials were complicit in the guns and drugs trade. However, viewers were not given any information about how serious the situation was in a wider context, for example an international context, and were not offered any perspective from community leaders, officials or the Government (some of whom were allegedly involved).
 The Authority accepts that the reporter did make efforts to obtain a response from the Police Commissioner. Both the former Police Commissioner and the reporter’s contact in Samoa provided affidavits stating that they did meet and discuss guns and drugs in Samoa, whether or not the contact made it clear that he was from TVNZ. The reporter’s notes demonstrate that the Commissioner said that there was “not a very big problem” in relation to hard drugs, and that most guns in Samoa were used for sport.
 However, although these comments from the Commissioner were reported in the One News item, they were immediately undermined by the reporter:
Well, the Police Commissioner wouldn’t appear on camera but he did tell One News that most of the guns in Samoa are used just for sport. We know that’s not the case. And he also said there’s not really a hard drugs problem in Samoa. We also know that’s not the case. And perhaps one of the reasons the Police Commissioner did not want to appear on camera is that he has been accused of gun smuggling himself. A gun commission found he did have a case to answer for but he was not investigated because the Samoan cabinet voted that he shouldn’t be.
 The Authority asked the reporter to outline the information on which she based her unequivocal statements above, and she provided the references to news articles outlined in paragraph  above. While the reporter’s information does show that there have been isolated incidents involving drugs and guns in Samoa, spread over a number of years, it does not support the impression given in the item that Samoa was “awash” with guns and drugs. The Authority agrees with the complainant that, at best, the information shows the presence of hard drugs and guns in Samoa – neither of which is disputed by the Samoan authorities. However, in its view, the reporter’s evidence certainly does not support her unequivocal statements, the entire thrust of the item, or the suggestion that the situation was so clear-cut that no alternative perspective needed to be given in the item.
 The broadcaster did not make any efforts to gauge for viewers the extent of the problem, by including comments from community leaders, including doctors, lawyers, local media or officials working either in NGOs or government. In this respect, the Authority finds that the broadcaster failed to make reasonable efforts to present significant points of view on the controversial issue under discussion.
 Accordingly, the Authority finds that the One News item was unbalanced.
 The Authority considers that the Tagata Pasifika item was introduced in more moderate terms than One News. The presenters said:
Presenter 1: Well, it’s the talk of Pacific communities.
Presenter 2: A One News investigation into criminal gangs in Samoa has found a
lucrative trade in drugs from New Zealand, and it’s helping to finance
smuggling of some heavy weaponry from the United States used to
protect their patch.
Presenter 1: One News Pacific correspondent... reports on how this growing criminal
element is going head to head with Samoa’s strong traditions.
 However, as in the One News item, in Tagata Pasifika the reporter stated that police were “turning a blind eye” to the guns and drugs problems, that people in “top positions of responsibility” were among the clients of the drug lords, and that the Police Commissioner had been accused of being involved in gun smuggling.
 While the reporter did not expressly dispute the Police Commissioner’s views as she had in the One News report, she still followed the statement with a reference to the Commissioner being investigated for gun smuggling:
Police Commissioner, [name], did not want to front for the cameras. However, he says most of the guns in Samoa are for sport, and hard drugs are not a big problem. The Commissioner himself was accused of gun smuggling and a Samoan commission of inquiry recommended he face a criminal investigation. However, cabinet decided he should not be charged. Meanwhile, business on the street continues.
 In the Authority’s view, even though the overall effect of the Tagata Pasifika story was less dramatic than in One News, the broadcaster still failed to provide viewers with sufficient context or alternative viewpoints to allow viewers to reach an informed opinion about the extent of the problem of guns and drugs in Samoa.
 The Authority therefore finds that the Tagata Pasifika item was also unbalanced.
Bill of Rights
 Having reached the conclusion that both items presented only one perspective on the issue under discussion, and were therefore unbalanced, the Authority must consider whether to uphold the complaint as a breach of Standard 4.
 The Authority acknowledges that upholding the Standard 4 complaint would place a limit on the broadcaster’s right to freedom of expression, which is protected by section 14 of the New Zealand Bill of Rights Act 1990. In Commerce Commission and TVWorks1, the Authority determined that upholding a complaint under Standard 4 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 4 in the following terms:
... the balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion. The standard only applies to programmes which discuss "controversial issues of public importance", and therefore this objective is of vital importance in a free and democratic society.
 With that in mind, the Authority must consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 4 on this occasion. It finds that upholding this complaint would ensure that when a programme puts forward one perspective on a controversial issue, broadcasters make reasonable efforts to present sufficient context or alternative views to enable viewers to reach an informed view on the issue. In this respect, upholding this complaint clearly promotes the objective of Standard 4, and therefore places a justified and reasonable limit on TVNZ’s freedom of expression.
 The Authority therefore upholds the complaint that One News and Tagata Pasifika breached Standard 4.
Standard 5 (accuracy)
 Standard 5 requires that news, current affairs and factual programmes are truthful and accurate on points of fact, and impartial and objective at all times.
 The complainant’s main concern was that the programmes were misleading because they contained allegations which were based on the “suspect reliability of the interviewees and staged nature of the scenes filmed”, in other words, the reporter had allegedly instructed the “Makoi boys” how to act for their interview. Guideline 5e to the accuracy standard states:
Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.
 As shown on camera, and evidenced in a transcript of the interview, the “Makoi boys” did tell the reporter that they dealt drugs and controlled the area. They later swore in their affidavits that they did not sell drugs, but were in fact acting for the camera. The “Makoi boys” did not dispute that they had told the reporter they were a gang involved in drug dealing. The reporter maintained that she had no reason to suspect they were not telling the truth.
 The Authority accepts the reporter’s assertion that she genuinely believed the “Makoi boys” were being truthful. However, in the Authority’s view, based on the interview transcript and the footage of the “Makoi boys”, there were enough cues to suggest that the men were neither credible nor reliable. These are outlined below.
 First, the reporter has admitted in her affidavit that she believed the “Makoi boys” were smoking marijuana and were “stoned”. Given that she believed the boys were under the influence of drugs, the Authority considers that she should have viewed their responses with a greater degree of caution.
 Second, the transcript of the interview, as well as the footage in the item, suggested that the “Makoi boys” were joking around and acting up for the camera. The boys were visibly amused by the interview and their own responses. For example, the “Makoi boys” started laughing when the reporter commented, “you guys look so tough”, and when one of them said “the matai hate us”. The “Makoi boys” also laughed when asking each other how prison was, and the transcript recorded one of them saying, “see if you hadn’t been so heavy handed and chopped the hand off someone with the axe which caused you to be locked up [men all laugh]”. The complainant has provided evidence from the Ministry of Police and Prisons in Samoa which confirms that none of the “Makoi boys” had any criminal convictions.
 The Authority also notes that the interviews were arranged through an intermediary, (the tattoo studio owner, whom the reporter had met only two days before, who claimed to have been involved in gangs in the US, and whose credibility she could not vouch for), and were mostly conducted in Samoan through the use of a translator. This made it even more critical for the reporter to exercise greater care in assessing and verifying the information provided.
 In these circumstances, the Authority considers that the reliability of the “Makoi boys” was questionable, and that the reporter should have made efforts to corroborate what they said. This could have been done, for example, by asking other sources if they knew of the “Makoi boys” as a gang involved in drug dealing, or by attempting to verify whether they had criminal convictions.
 The Authority accepts that the reporter acted in good faith and that any misrepresentation was not deliberate, and it acknowledges the difficulties in conducting interviews when the interviewees are speaking in another language. However, the Authority also accepts the affidavit evidence from police officers who investigated the men (the “Makoi boys”), the men themselves, and the mayor of the men’s village (who knew most of the men as they were part of his extended family, and who stated that none had been fined for marijuana cultivation or usage by the village council which regulates the affairs of the village) that the “Makoi boys” are not a “gang” whose “business is selling marijuana and ‘P’”. In this sense, the audience was misled by what was presented in the items.
 In circumstances where the reporter and the broadcaster were also misled, the Authority must determine whether it should uphold the accuracy complaint on this occasion.
 The Authority acknowledges that upholding the Standard 5 complaint would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In Pryde and RNZ,2 the Authority determined that upholding a complaint under Standard 5 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act.
 The Authority acknowledges that upholding the accuracy complaint could be viewed as unreasonable because the broadcaster itself was misled. However, it considers that the circumstances outlined above required a level of care, in checking the reliability of sources and the veracity of their information, that was not evident on this occasion. Furthermore, there were sufficient cues to alert the reporter as to the “Makoi boys’” unreliability (see paragraphs  to ). In these circumstances, the Authority considers that it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of the accuracy standard.
 The Authority finds that upholding the Attorney General’s complaint clearly promotes the objective of Standard 5, which is to protect audiences from receiving misinformation and thereby being misled. In Pryde and RNZ the Authority noted that audiences of news, current affairs and factual programmes have the right to receive information that is truthful and accurate. The Authority therefore upholds this part of the accuracy complaint.
Other accuracy matters
 In the Authority’s view, the remaining aspects of the items which the complainant considered were inaccurate related to the existence and scale of the guns and drugs problem in Samoa. The statements singled out by the complainant, such as “terrifying arsenal” and “lucrative trade”, are not sufficiently specific for the Authority to be able to determine their accuracy. However, the Authority considers that phrases such as these, relating to the extent of the alleged “problem” in Samoa, would have been acceptable if adequate balance had been provided in the items. The Authority therefore finds that these concerns have been adequately dealt with in its consideration of balance above, and subsumes its consideration of these aspects of the accuracy complaint into its consideration of Standard 4.
Standard 6 (fairness)
 Standard 6 requires broadcasters to deal justly and fairly with individuals and organisations taking part or referred to in a programme. The complainant argued that the men who were interviewed were treated unfairly, and referred to guidelines 6a, 6b and 6c to the fairness standard. In considering the guidelines below, the Authority bears in mind that a programme which does not adhere to the letter of a particular guideline may not breach the standard. The programme’s overall compliance with the relevant standard is the determining factor.
 Guideline 6b states that participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them. The complainant maintained that the “Makoi boys” were told the reporter was making a movie or documentary about gang life in the Pacific Islands and deportees from the United States, and that the purpose of interviewing and filming them was to find out how Samoan deportees coped with the way of life in Samoa. He said they were not told that the reporter was from One News.
 TVNZ argued that all of the equipment used carried One News insignia and that the reporter was well known in Samoa, noting that one of the “Makoi boys” recognised her as being from the news.
 The Authority reiterates its acceptance that both parties genuinely believe their accounts of what the “Makoi boys” were told prior to their interview. Further, it notes that some of the “Makoi boys”’ affidavits refer to another man from the village, who set up the interview, instructing the boys to act like gangsters for the camera. Regardless, the Authority considers that the “Makoi boys” clearly did not fully understand the nature of the programme or their proposed contribution. It accepts that this was not deliberate on the part of the broadcaster, but considers that it was not enough to rely on One News insignia. And even though the reporter stated that she had introduced herself as being from One News, the Authority notes that she was relying on a translator to convey what this meant.
 The Authority considers that the reporter was careless in not ensuring that it was adequately explained to the “Makoi boys” that they would be appearing on prime time news in New Zealand and in Samoa, and that they understood this. In the Authority’s view, given the close nature of Samoan society and size of the country, it is highly improbable that the “Makoi boys” would have agreed to be interviewed undisguised or would have claimed to be selling drugs if they had understood the nature of the programme. Furthermore, the language and cultural differences between the reporter and the “Makoi boys” meant that the reporter needed to take special care to ensure that the situation was understood. The Authority considers that the reporter did not take sufficient steps to ensure that the “Makoi boys” knew the purpose of their contribution to the news item.
 In these circumstances, the Authority finds that the “Makoi boys” were treated unfairly in this respect. Having reached this conclusion, the Authority must consider whether to uphold this complaint as a breach of Standard 6.
 In Commerce Commission and TVWorks3,the Authority determined that upholding a complaint under Standard 6 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 6 in the following terms:
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.
 The Authority must now consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 6 on this occasion. Upholding a breach of the fairness standard on this occasion would remind broadcasters to ensure that they deal with people participating in an item in a just and fair manner, and that the nature of the programme and their proposed contribution are adequately explained to them. In this respect, upholding this complaint clearly promotes the objective of Standard 6 (as outlined in paragraph  above).
 In these circumstances, the Authority finds that upholding this part of the complaint places a justified and reasonable limit on TVNZ’s freedom of expression. Accordingly, it upholds the complaint that the programmes breached Standard 6.
 Guideline 6a states:
Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.
 The complainant’s concern with regard to this guideline was the allegation that the reporter had told the “Makoi boys” what to say and how to act. In the Authority’s view, based on the transcript of their interview, which the complainant has not disputed, the extracts of the interview used in the items did not distort the events or views expressed by the “Makoi boys”. They chose to act up for the camera, even though they did so misunderstanding the nature of the programme being made, and the programmes fairly reflected what they had said. The Authority declines to uphold this part of the complaint.
 Guideline 6c typically relates to the use of covert filming (for example, Lewes and TVNZ4) or circumstances where a participant has been deceived (for example, Freelife Pacific and TVNZ5).
 The Authority considers that there is nothing to suggest that information or pictures were obtained by deliberate misrepresentation or deception on this occasion. It considers that the complainant’s concerns about what the men were told prior to the interview have been adequately dealt with above in its consideration of guideline 6b. It therefore declines to uphold this aspect of the fairness complaint.
Standard 2 (law and order)
 The Authority has previously stated that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity (see, for example, Gregory and TVNZ6). The complainant argued that the broadcasts glamorised and condoned smoking marijuana, and using guns, violence and intimidation to allegedly “control” particular areas of Samoa, in breach of the law and order standard, and particularly guideline 2b to the standard, which states:
Factual programmes should not glamorise criminal activity or condone the actions of criminals.
 The Authority notes that the One News item included reference to criminal gangs building up a “terrifying arsenal”, to the fact that gun smuggling had been a “problem” for many years, and to the fact that the people dealing drugs and weaponry were worried about being exposed, and were warning the new generation not to sell drugs. The Tagata Pasifika item referred to a “growing criminal element” that was presenting a “threat” to the village environment, to groups running illegal operations, the masked man’s message to newcomers not to sell drugs, and the gangster lifestyle not going down well with locals.
 In the Authority’s view, both broadcasts clearly conveyed the impression that guns and drugs smuggling and dealing were undesirable, criminal, and a problem. It considers that neither programme encouraged viewers to similarly break the law, or glamorised or condoned gun and drug smuggling. Accordingly, it declines to uphold the complaint that either item breached Standard 2.
For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of One News on 6 April 2009 and Tagata Pasifika on 9 April 2009 breached Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld a complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties.
Submissions on Orders
 The complainant stated that, because the Prime Minister of Samoa hoped to build a constructive relationship with TVNZ, it was considered that a public apology was the preferred result, and the complainant therefore did not seek an order for costs to the Crown. It was considered that the apology should be broadcast on One News in both New Zealand and Samoa.
 The Attorney General also argued that the complainant should be awarded legal costs, particularly taking into consideration the time and resources that were needed to compile evidence and interview many people. He said that the Samoan government had incurred NZ$29,402.70 in external legal costs. The complainant submitted that the use of external counsel was appropriate in this case. He noted that, in considering whether to award legal costs, the Authority usually considered the number of issues raised in the complaint, the complexity of the issues, the complexity of the factual background, and the number of substantive submissions in relation to the complaint. The complainant argued that all of these factors were relevant here and warranted an order for legal costs.
 The broadcaster submitted that the orders sought by the complainant were not appropriate. It said it stood by its arguments that the programmes were legitimate and had a strong foundation of evidence obtained by the reporter. TVNZ stated that it was satisfied that, having sought comment from the Police Commissioner, it was not necessary to seek any other perspectives in order to achieve balance as it was reasonable to assume that he would provide a detailed and appropriate response.
 TVNZ noted that the Authority had rejected the complainant’s allegations of deliberate dishonesty by the reporter, and reiterated that they were without merit.
 TVNZ considered that significant parts of the complaint had not been upheld, for example the complainant’s assertion that the reporter had instructed the “Makoi boys” how to behave on camera.
 The broadcaster argued that it was unreasonable to review the complainant’s conduct with “the luxury of hindsight” in relation to the two “cues” identified by the Authority in its decision that should have alerted the reporter to the reliability of the “Makoi boys”. It maintained that the “Makoi boys” were “not under the influence of harder ‘mind-altering’ drugs” and that it was reasonable to assume that people who had smoked marijuana were aware of what was happening to them. Secondly, TVNZ asserted that the translated transcript of their interview was not available to the reporter until after the items went to air, so that it was “unfair to then use the translated words against the reporter after the fact”. In any event, it said, the transcript supported the honesty of the men’s responses and the level of the discussion demonstrated that the “Makoi boys” were capable of critical thinking.
 TVNZ also maintained that the reporter had in fact made efforts to corroborate what the “Makoi boys” told her about selling drugs with other sources. It said, “They confirmed the information that was given in the item. The identities of these sources are confidential and will not be revealed.”
 The broadcaster maintained that the reporter had adequately explained to the “Makoi boys” what they were being interviewed for, and noted that one man had been quoted in the Samoa Observer as stating that she had told them she was from “TV news from New Zealand”. It considered that this was inconsistent with the Authority’s findings.
 TVNZ emphasised that it had acted honestly and in good faith in its dealings with the “Makoi boys” and therefore considered that it was unduly harsh to find that it had acted unfairly towards them. TVNZ noted that the reporter had been subjected to defamatory media coverage in Samoa and to a lesser extent in New Zealand.
 TVNZ noted that the complainant had not asked for costs to the Crown because the Samoan government intended to build a constructive relationship with TVNZ. It submitted that an order of legal costs would be inconsistent with that objective, and would be punitive at the amount sought, which was not the objective of awarding legal costs.
 TVNZ argued that the length and complexity of the complaint was caused largely by “the serious and unfounded allegations of impropriety by TVNZ”. The complainant then raised numerous new points following its referral, TVNZ said. The broadcaster submitted that the Authority should consider adjusting the award of legal costs down from one-third, taking into account the fact that the complainant was successful in respect of “only one or two relatively minor aspects of the complaint, but was unsuccessful in respect of the main aspects of the complaint”, and that the complainant unnecessarily prolonged the complaints process and pursued arguments that were without merit.
 The broadcaster therefore concluded that the publication of the decision would be sufficient penalty.
Submissions on website material
 In response to a question from the Authority, TVNZ stated that both the One News and Tagata Pasifika items were still available on TVNZ’s website. The broadcaster accepted that section 13(1)(a) of the Broadcasting Act 1989 was expressed in broad terms, it submitted that the exercise of the Authority’s powers in respect of online publications should take into account the following:
- TVNZ would not consider whether to remove the items from the website until the Authority had issued a final decision, and the decision on how to manage this was appropriately left for the broadcaster to make.
- Website publications fall outside the jurisdiction of the Authority.
- TVNZ’s website is its archive, which should be left for TVNZ to manage. Further, it was unlikely anyone would come across the items by accident.
- TVNZ was entitled to disagree with the grounds on which the Authority upheld the complaint, as they were “based on an evaluative assessment to which other opinions may be equally valid”.
 Responding to TVNZ’s submissions, the complainant contended that TVNZ should accept the Authority’s ruling. It said that TVNZ had a statutory responsibility not to misinform its audience, and submitted that a statement should be published alongside the items on the website.
 TVNZ replied that it would decide whether or not to remove the items once it had received the Authority’s final decision.
Authority’s comments on the broadcaster’s submissions
 It is appropriate to comment on the submissions made by TVNZ in respect of the Authority’s decision. First, the Authority stands by its decision that the broadcaster did not present a range of perspectives in order to achieve balance in the programmes, and that the reported comment from the Police Commissioner was insufficient for that purpose.
 Second, with regard to TVNZ’s suggestion that it was unfair for the Authority to use the transcript of the interview with the “Makoi boys” against the reporter, the Authority notes that TVNZ provided that transcript to the Authority for the purposes of considering the reporter’s interaction with the boys. In terms of whether it was appropriate for the Authority to consider the translated words, the Authority observes that the reporter was accompanied by a translator for the duration of the interview in Samoa. Furthermore, the reporter could have had any part of the interview translated before the items went to air. In the Authority’s view, even leaving aside the translated words, there were sufficient cues in the boys’ behaviour (for instance their visible amusement at the interview) to indicate that the reporter should question their reliability.
 Third, in terms of whether the “Makoi boys” were fully aware of what was happening to them due to the fact that they had been smoking marijuana, the Authority notes that the reporter herself described the boys as being “doped up” and said that she was very uncomfortable about this (see paragraph ). The Authority considers that it is disingenuous for TVNZ to argue that marijuana use has no effect on thoughts, memory, and behaviour.
 Fourth, TVNZ is now maintaining that the reporter did in fact speak to other sources to corroborate what she was told by the “Makoi boys”. The Authority notes that TVNZ did not put forward this argument at any stage during the complaints process despite having many opportunities to do so. Further, it considers that it is insufficient to state that “confidential sources” “confirmed the information”. The Authority considers that, if that was the case, TVNZ could have, at the very least, provided the information gathered from those sources without necessarily identifying them.
 Fifth, the Authority stands by its decision that the “Makoi boys” did not fully understand that they would be shown on the news in New Zealand and in Samoa, regardless of the comment quoted in the Samoan Observer. Even if the reporter had told one of the boys that she was from the TV news in New Zealand, the Authority is satisfied that the “Makoi boys” did not understand the purpose for which they were being filmed, and the reporter did not take sufficient steps to ensure that they were informed.
 Finally, the Authority disagrees that the upheld aspects of the complaint were “minor”. It has upheld the complaint under three standards and it considers that the breach of the balance standard in particular was of a serious nature.
Authority’s Decision on Orders
 The complainant has sought an apology to be broadcast on One News and Tagata Pasifika. The Authority has ordered apologies only rarely and in exceptional circumstances, and it does not consider that an apology is warranted in this case. However, it is of the view that it is appropriate to order TVNZ to broadcast a statement summarising the decision in both One News and Tagata Pasifika. The Authority notes that it was advised by TVNZ that One News is repeated in Samoa each day, and it trusts that the statement will also be broadcast in that country.
 In terms of legal costs, the Authority’s policy is that costs awards for complainants whose complaints have been upheld will usually be in the range of one-third of costs reasonably incurred. In determining what is reasonable, the Authority considers that, although the complainant was overseas and had to hire New Zealand legal counsel, the complaints process was unnecessarily prolonged due to delays in the complainant responding to the Authority. Further, the complainant gathered and supplied a large number of documents, including several affidavits, in support of an aspect of the complaint which was not upheld by the Authority (that “the manner in which the filming and interviews were obtained was plainly duplicitous”). It considers that, in all the circumstances, the amount of $15,000 in legal costs was reasonable in this case.
 One-third of the complainant’s reasonable costs is $5,000. This amount may be adjusted upwards or downwards depending on the circumstances. Taking into account the prolonged process, but also the nature of the breaches, the Authority is of the view that the circumstances do not warrant any adjustment from one-third of the reasonable costs. It therefore finds that it is appropriate to order TVNZ to pay the complainant $5,000.
 Costs to the Crown are generally imposed where there has been a serious departure from broadcasting standards. Taking into account all the circumstances of this case, including the fact that it has upheld breaches of three standards, the Authority considers that such an award is appropriate on this occasion. Consistent with previous orders in similar circumstances, the Authority concludes that TVNZ should pay costs to the Crown in the amount of $2,000.
 The Authority considers that its exercise of powers on this occasion, in making these orders, is consistent with the New Zealand Bill of Rights Act's requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.
The Authority makes the following orders pursuant to sections 13 and 16 of the Broadcasting Act 1989:
1. Pursuant to section 13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast a statement approved by the Authority.
That statement shall:
- be broadcast within one month of the date of this decision
- be presented both verbally and visually on screen
- be broadcast during One News and Tagata Pasifika, at times and on dates approved by the Authority
- be published on TVNZ’s website, www.tvnz.co.nz, on the web pages from which these items are viewable, for as long as the items remain accessible
- contain a comprehensive summary of the upheld aspects of the Authority's decision.
The Authority draws the broadcaster's attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice in writing to the Authority and the complainant of the manner in which the above order has been complied with.
2. Pursuant to section 16(1) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $5,000, within one month of the date of this decision.
3. Pursuant to section 16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $2,000, within one month of the date of this decision.
The orders for costs shall be enforceable in the Wellington District Court.
Signed for and on behalf of the Authority
2 March 2010
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Attorney General of Samoa’s formal complaint – 6 May 2009
2. TVNZ’s response to the complaint – 3 June 2009
3. Attorney General’s referral to the Authority – 11 June 2009
4. TVNZ’s response to the Authority – 29 July 2009
5. Further comments from Attorney General – 7 September 2009
6. Further comments from TVNZ – 19 October 2009
7. Further comments from Attorney General – 28 October 2009
8. TVNZ’s final comment – 28 October 2009
9. TVNZ’s responses to Authority’s request for further information – 29 October 2009
and 19 November 2009
10. Attorney General’s response to Authority’s request for further information – 20 November 2009
11. TVNZ’s response to the further information – 20 November 2009
12. Attorney General’s final comment – 23 November 2009
13. Further information from TVNZ – 3 December 2009
14. Attorney General’s submissions on orders – 13 January 2010
15. TVNZ’s submissions on orders – 5 February 2010
16. TVNZ’s submissions on website material – 24 February 2010
17. Attorney General’s submissions on website material – 25 February 2010
18. TVNZ’s further submissions on website material – 26 February 2010
1Decision No. 2008-014
2Decision No. 2008-040
3Decision No. 2008-014
4Decision No. 2008-085
5Decision No. 2006-073
6Decision No. 2005-133