BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint about a news item on RNZ National. The item briefly described a ruling of the International Court of Justice in relation to Israel’s actions in Rafah, and an academic’s perspective on the potential reaction of the international community. The complainant argued other perspectives and information should have been included, the description of the ruling was inaccurate, and the various statements, omissions and inaccuracies contributed to breaches of multiple standards. The Authority found the brief item did not constitute a ‘discussion’, so the balance standard did not apply. With regard to accuracy, the Authority found the description of the ruling was reasonable and the broadcaster had exercised reasonable efforts to ensure accuracy. It also found the academic’s reference to ‘attacking’ by Israel constituted comment, analysis or opinion to which the accuracy standard did not apply and was materially accurate. The remaining standards did not apply or were not breached.

Not Upheld: Balance, Accuracy, Promotion of Illegal or Antisocial Behaviour, Discrimination and Denigration, Fairness

The broadcast

[1]  During the 26 May 2024 9am news bulletin on RNZ National, an item aired concerning an International Court of Justice (ICJ) ruling about Israel’s military actions in Rafah.

[2]  The item contained the following remarks:

Newsreader:            An international relations expert says it's important New Zealand is seen as supporting the International Court of Justice's ruling that Israel must immediately halt its military offensive in Rafah. The UN's highest court made the ruling because of the risk to Palestinian lives in Gaza. Robert Patman of the University of Otago says the ruling won't stop Israel attacking but may contribute to its growing isolation. 

Robert Patman:       Countries like Germany and the UK, all those governments are going to come under a lot of domestic pressure now. After all, it's the Western liberal democracies who believe in international rules-based order. And the highest court in the world hasn't got enforcement powers, but it doesn't look good for liberal democracies to effectively say that one actor is above the law. 

The complaint

[3]  Trevor Baker complained the broadcast breached the balance, accuracy, promotion of illegal or antisocial behaviour, discrimination and denigration, and fairness standards of the Code of Broadcasting Standards in New Zealand for the following reasons:

Balance

• ‘The operation in Rafah discussed in this news bulletin could be argued to be a police action against Hamas. The Radio New Zealand bulletin failed to present this alternate perspective.’
• ‘I argue¹ that the October 7 2023 massacre the perpetrators call Operation Al-Aqsa Flood is a mass psychotic episode. This has yet to be disproved. I argue that a range of views in relation to the subject were not sought.’
• ‘The news item did not at any time discuss the possibility that Israel is fighting Hamas and that Hamas is hiding behind the Gaza civilian population.’
• The item described Israel as ‘attacking’ rather than ‘taking police action in response to an unprovoked attack… “attacking” in this context is not balanced’.

Accuracy

• ‘950,000 civilians sheltering in Rafah have been evacuated by Israel in compliance with the ICJ ruling. The Radio New Zealand news bulletin omitted this detail and was therefore incomplete. I argue that it breached the accuracy standard.’
• RNZ’s description of the ICJ ruling was inaccurate, as ‘Israel must immediately halt its military offensive in Rafah’ was not the wording of the ruling.
• The news item did not discuss whether Palestinians discussed in the ICJ ruling included, in whole or in part, Hamas members or supporters. This omission was inaccurate.
• Use of the term ‘attacking’ was inaccurate as Israel’s actions were ‘taking police action in response to an unprovoked attack involving the rape, torture and murder of its citizens and the taking of its citizens as hostages’ rather than an ‘attack’.

Promotion of illegal or antisocial behaviour

• ‘I understand that it is illegal under New Zealand’s censorship laws for the manifesto of the perpetrator of the Christchurch shootings to be published in New Zealand. I query why the same protection is not being provided [to] the victims of the 7 October 2023 massacre many of whom are still being held hostage. I argue that through the above omissions Robert Patman was promoting the view that Israel is acting in breach of the ICJ ruling and argue this breached the illegal and antisocial behaviour standard.’
• By not outlining that Palestinians in Gaza ‘may be members or supporters of Hamas which is designated a terrorist organisation in its entirety’, RNZ was supporting Hamas, a designated terrorist entity, which was a crime.

Discrimination and denigration

• Omitting relevant perspectives influences the audience ‘to contribute to Israel's growing isolation in breach of the discrimination and denigration standard’.
• The framing of one comment suggests Patman ‘is advocating for Israel’s isolation from other liberal democracies as a result of undertaking police action against a designated terrorist entity and, within the New Zealand jurisdiction is therefore in breach of the discrimination and denigration standard’.

Fairness

• It was unfair not to include the range of perspectives described above.
• It was unfair to ‘the ICJ, Israel, those among the Palestinian group that are not aligned with Hamas, those [among] the Palestinian group who are aligned and the listeners of this RNZ News item’ to not use the ICJ’s actual wording.

The broadcaster’s response

[4]  RNZ did not uphold the complaint for the following reasons:

• ‘While it may be your position that the October 7, 2023 massacre was a "…mass psychotic episode…" and that [Israel] is undertaking "…a police action against Hamas…", that does not mean to say that an international relations expert such as Professor Robert [Patman] needs to include your views in his analysis of the effect of the ICJ ruling which was referred to in the item.’

Balance

• ‘Earlier rulings of the Broadcasting Standards Authority indicate that the balance standard only applies to a controversial issue when it is "discussed" i.e. in a long form item. The Authority has stated that short items such as this piece in a news bulletin do not fall within the ambit of the balance standard.’

Promotion of illegal or antisocial behaviour

• ‘The prime focus of the illegal and antisocial behaviour standard is on content which may promote illegal or serious antisocial behaviour and there is no indication that what Mr Patman said or did not say [would] promote behaviour envisaged under this standard.’

Fairness

• ‘The fairness standard does not address whether a range of views [is] required in a news and current affairs item, but rather that those people or organisations referred to in the item are treated fairly.’

The standards

[5]  The balance standard² ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.³ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.⁴

[6]  The purpose of the accuracy standard⁵ is to protect the public from being significantly misinformed.⁶ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

[7]  We consider the above standards are the most relevant to the issues raised by the complainant and that issues of omission raised under the accuracy standard are best addressed as part of the balance analysis. The other standards are addressed briefly at paragraphs [21] – [23].

Our analysis

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

[9]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.⁷

Balance

[10]  The balance standard requires broadcasters to make reasonable efforts to present significant viewpoints on controversial issues of public importance discussed in a programme unless the audience can reasonably be expected to be aware of significant viewpoints from other media coverage.⁸

[11]  The balance standard only applies where the broadcast discusses a controversial issue of public importance. Brief news reports and programmes clearly focused on a particular perspective may not amount to a discussion for these purposes.⁹

[12]  The RNZ news item addressed the potential implications, for New Zealand and the international community, of the recent ICJ ruling. This is arguably a controversial issue of public importance to which the standard can apply. However, this brief (approximately 45 second) news report did not constitute a ‘discussion’ of that issue which would require the inclusion of alternative perspectives. The matters the complainant argues should have been included were also not relevant to this topic. A brief item conveying one academic’s perspectives on the implications of the ICJ ruling is not the place to provide detailed information regarding the broader conflict.

[13]  As the broadcast did not constitute a ‘discussion’ of a controversial issue of public importance, the balance standard does not apply. 

Accuracy 

[14]  The standard is concerned only with material inaccuracies. Technical or unimportant points that are unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.¹⁰

[15]  Having considered arguments based on inaccuracy by omission under the balance standard, the complainant’s remaining arguments under this standard are addressed below:

Description of the ICJ ruling

[16]  The ICJ ruling included an order requiring Israel to:¹¹

Immediately halt its military offensive, and any other action in the Rafah Governorate, which may inflict on the Palestinian group in Gaza conditions of life that could bring about its physical destruction in whole or in part.

[17]  The broadcast described this as a ruling ‘that Israel must immediately halt its military offensive in Rafah’. We acknowledge some have argued the ruling only required the immediate halting of the offensive if continuing would bring about the conditions specified in the second half of the order.¹² However, in our view, the truncated description used in the broadcast was a reasonable interpretation of the ruling, particularly in light of the ICJ’s other comments about the then current risks to Palestinians in the area.¹³

[18]  In any case, a broadcaster’s obligation under the accuracy standard is not to ensure absolute accuracy but to use reasonable efforts to do so. Given many other media organisations reported the ruling’s effect in a similar way, we consider the broadcaster has used reasonable efforts in this instance.¹⁴

Use of the term ‘attacking’ 

[19]  The item included the statement, ‘Robert Patman of the University of Otago says the ruling won't stop Israel attacking but may contribute to its growing isolation.’ This statement, including the choice of language, reflected Patman’s analysis, opinion and comment rather than a matter of fact to which the accuracy standard is intended to apply.¹⁵ To the extent the statement might be seen as based on a factual assumption Israel’s offensive in Gaza involved ‘attacking’, we consider it is not a materially misleading description of Israel’s activity.¹⁶

[20]  For the reasons above, we do not uphold this complaint under the accuracy standard.

Remaining standards

[21]  Promotion of illegal or antisocial behaviour:¹⁷ This standard is concerned with broadcasts that incite the audience to commit illegal or serious antisocial behaviour.¹⁸ The complainant’s concerns around promotion of ‘the view that Israel is acting in breach of the ICJ ruling’ and the omission to mention Palestinians in Gaza ‘may be members or supporters of Hamas’ are not concerns to which the standard applies. The complainant has offered no reasonable basis for a conclusion that the brief news item was likely to incite any conduct in breach of this standard.

[22]  Discrimination and denigration:¹⁹ This standard only protects certain recognised sections of the community. The complainant’s concerns under this standard relate to alleged discrimination against or denigration of Israel. However, as we have previously recognised, the standard may protect the citizens of particular countries from discrimination but does not operate to protect sovereign nations/governments.²⁰

[23]  Fairness:²¹ This standard is concerned with the unfair treatment of organisations or individuals featured in broadcasts. The complainant’s concerns regarding the description of the ICJ’s ruling and the omission of particular perspectives were, in our view, more appropriately addressed under accuracy and balance above.

Final comments

[24]  Approximately one month after referring his complaint to the Broadcasting Standards Authority, the complainant also expressed concern regarding the item being ‘representative of a broader disinformation campaign’ and regarding ‘protracted delay’ in the Authority’s management of his complaint. He said, ‘I am curious whether the BSA is going to whitewash RNZ’s coverage of the ICJ ruling on 26 May.’

[25]  We note Mr Baker’s disagreement with the way a news story, or complaint, is addressed does not make the story ‘disinformation’ or the process ‘whitewashing’. As outlined above, the matters raised by Mr Baker do not amount to any breach of standards and we reject any suggestion of disinformation or whitewashing.

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

Signed for and on behalf of the Authority

Susie Staley
Chair
14 October 2024    

Appendix

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

1  Trevor Baker's initial complaint to RNZ - 26 May 2024

2  RNZ's decision on the complaint - 20 June 2024

3  Baker's further email to RNZ - 20 June 2024

4  Baker's referral to the Authority - 25 June 2024

5  RNZ confirming no further comments - 9 July 2024

6  Baker's final comments - 27 July 2024

¹ Trevor Baker “A Raft in the Flood” The Times of Israel Blogs (online ed, 17 May 2024)
² Standard 5, Code of Broadcasting Standards in New Zealand
³ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand, page 14
⁴ Guideline 5.1
⁵ Standard 6, Code of Broadcasting Standards in New Zealand 
⁶ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand, page 16
⁷ Introduction, Code of Broadcasting Standards in New Zealand, page 4
⁸ Standard 5, Code of Broadcasting Standards in New Zealand
⁹ Guideline 5.1
¹⁰ Guideline 6.2
¹¹ Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel), Order of 24 May 2024, DN: 192-20240524-ORD-01-00-EN at [57]
¹² Patrick Wintour “How a single comma is allowing Israel to question ICJ Rafah ruling” The Guardian (online ed, 29 May 2024); Dominic Casciani “What does the ICJ's ruling on Israel's Rafah offensive mean?” BBC News (online ed, 29 May 2024)
¹³ Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel), Order of 24 May 2024, DN: 192-20240524-ORD-01-00-EN at [27] – [29] and [47]
¹⁴ “ICJ orders Israel to halt its offensive on Rafah, Gaza in new ruling” Al Jazeera (online ed, 24 May 2024); Mike Corder “Top UN court orders Israel to halt military offensive in Rafah, though Israel is unlikely to comply” Associated Press (online ed, 25 May 2024); Haroon Siddique and Lorenzo Tondo “UN’s top court orders Israel to immediately halt Rafah offensive” The Guardian (online ed, 24 May 2024); Raffi Berg “Top UN court orders Israel to stop Rafah offensive” BBC News (online ed, 25 May 2024); Abbas Al Lawati “UN’s top court orders Israel to ‘immediately’ halt its operation in Rafah” CNN (online ed, 24 May 2024)
¹⁵ Guideline 6.1
¹⁶ Guideline 6.1
¹⁷ Standard 3, Code of Broadcasting Standards in New Zealand
¹⁸ Commentary, Standard 3, Code of Broadcasting Standards in New Zealand
¹⁹ Standard 4, Code of Broadcasting Standards in New Zealand
²⁰ See Wakeman and Television New Zealand Ltd, Decision No. 2022-057 at [38]; McArthur and Radio New Zealand Ltd, Decision No. 2023-004 at [34]; and Al-Jiab and Television New Zealand Limited, Decision No. 2024-041 at [37] for similar findings
²¹ Standard 8, Code of Broadcasting Standards in New Zealand