BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An item on 1 News reported on the outcome of the US defamation trial between Johnny Depp and Amber Heard. The Authority did not uphold a complaint that the item lacked balance by favouring Heard’s perspective and that certain statements were inaccurate or misleading. It found the balance standard did not apply as the complainant’s concerns did not relate to the omission of perspectives concerning a controversial issue of public importance as required. In any event, reasonable efforts were made to present Depp’s perspective. In relation to the statements that were allegedly inaccurate or misleading, the Authority found they were either materially accurate, or distinguishable as analysis, comment or opinion to which the accuracy standard did not apply.

Not Upheld: Balance, Accuracy

The broadcast

[1]  An item on 1 News on 2 June 2022 reported on the outcome of the US defamation trial between Johnny Depp and Amber Heard. Introducing the item, the host stated:

Host:                         Actress Amber Heard says losing the defamation trial to Johnny Depp is a setback for women, hurting their ability to speak out. Depp took his ex-wife to court over a newspaper article in which she implied he abused her. The trial, featuring dramatic testimony and video evidence, gripped America for weeks.

[2]  The item showed footage of the jury’s decision being read out in court and went on to describe notable aspects of the trial:

Reporter:                 Depp didn't turn up to court today. Instead, working in the United Kingdom. Friends posted videos of him celebrating the decision and Depp released a statement saying, 'The jury gave me my life back, I am truly humbled.'But in large part this has been trial by Tik Tok. Malicious social media memes shared of Heard, an imperfect victim, portrayed as the perfect villain. Booed by Depp fans who gathered outside court each day.

Depp’s lawyer:        Today's verdict confirms what we have said from the beginning: that the claims against Johnny Depp are defamatory and unsupported by any evidence.

Reporter:                 Depp lost a similar claim of defamation in the United Kingdom in 2020. This time, he's walked away with an award of $12 million.

Depp (in court):       There was the physical abuse, which was a constant.

Reporter:                 The jury's decision unanimous, even in the face of video evidence and witness testimony.

Heard (in court):     My head was bashing against the back of the bar and I couldn't breathe.

Reporter:                 Amber Heard won part of her counterclaim that she had been defamed by Depp's lawyer, who called her allegations a hoax.

Heard’s lawyer (in court): Amber's not perfect, none of us are. She's never pretended to be. And that's not what you're being asked to decide. One time, ladies and gentlemen. One time. If he abused her one time, Amber wins.

Reporter:                 But the jury decided otherwise, Heard also releasing a statement saying she was heartbroken and disappointed.

Amber Heard supporter:    We're looking for justice. I don't think we should be celebrating someone's demise.

Reporter:                 The headlines may all be against Heard, but really there are no winners in one of Hollywood history's messiest splits.

[3]  The item showed a brief excerpt of a video of Depp kicking a wall and slamming a cupboard (which was admitted as evidence in the trial), and also an image of a headline of The Sun newspaper stating: ‘On behalf of domestic abuse survivors, we can now confirm that… [Depp] IS A WIFE BEATER.’

[4]  To conclude, the reporter noted:

Reporter:                 … Amber Heard's options now are somewhat limited. If she decides to appeal this judgment, she'll have to post a bond for that $12 million award, and interest will start accruing. If she hasn't got the funds to pay this judgment, she may have to declare bankruptcy or face her wages being docked for years to come. … And this will not be the last time they meet to discuss the end of this very messy relationship. Johnny Depp has 30 years under Virginia law to enforce the judgment.

[5]  This item was immediately followed by a companion piece, introduced as follows:

Host:                         The case has highlighted the growing influence of social media on public opinion. The volume of posts is similar to high profile elections and has prompted women’s advocates to warn about the knock on effects for survivors of abuse.

[6]  This piece included interviews with a representative from the National Council of Women, a representative of Women’s Refuge and a social media commentator and explored the potential effect of online abuse such as that experienced by Heard. Issues canvassed included the risk of victims being dissuaded from coming forward and of female voices consequently not being heard.

The complaint

[7]  Jacques Bancilhon complained the broadcast (specifically that portion preceding the companion piece described in paragraphs [5]-[6]) breached the balance and accuracy broadcasting standards. We consider his key concerns under each of the standards can be summarised as follows.

Balance

• The item was biased towards Heard by favouring her evidence and side of the story, including because it:
  (a)  included part of Heard’s testimony (“My head was bashing against the back of the bar and I couldn’t breathe”) and a video of Depp kicking a wall and slamming a cupboard, but not Depp’s response.
  (b)  stated Heard was “an imperfect victim,” implying she was the true victim.
  (c)  showed the image of The Sun newspaper headline.
  (d)  included part of Heard’s lawyer’s closing statement but not Depp’s lawyer’s closing statement.
  (e)  included comment from one of Heard’s supporters and not Depp’s.
  (f)  implied Heard was ‘being victimised by social media, booing Depp fans, and the headlines.’
  (g)  focussed on Heard’s options as a result of this judgement, and failed to note that Depp may not pursue the amount owing.
  (h)  stated ‘there really are no winners’ when Depp did win this case.
  (i)  omitted to play significant audio recordings presented at the trial where Heard admits to throwing pots and pans and to hitting Depp.
• The item discussed a ‘controversial issue of public importance’ as required for the balance standard to apply, being that of domestic violence.

Accuracy

• The following statements were incorrect or misleading:
  (a)  “But in large part this has been trial by Tik Tok” – this was misleading as it implied the trial was unfair as the jury was influenced by social media activity.
  (b)  “The headlines may all be against Heard but really there are no winners” was an inaccurate generalisation (with regard to the headlines) and an inaccurate description of a trial which Depp was considered to ‘win’.
  (c)  “Depp lost a similar claim of defamation in the United Kingdom in 2020” was an inaccurate comparison. The cases could not be described as ‘similar,’ as, for example, Heard was not a party to the UK case, the evidence presented was not the same, and Heard was not cross-examined in the UK case.
  (d)  Depp “walked away with an award of $12 million.” In fact it was US$8.35 million (his award of $10.35 million minus Heard’s award of US$2 million). ‘As the trial was in the USA, and [the reporter] was reporting from the USA, it is reasonable to assume she was stating the award in US dollars.’

The broadcaster’s response

[8]  Television New Zealand Ltd did not uphold Bancilhon’s complaint, stating:

Balance

• The balance standard does not apply to this item as it did not discuss a controversial issue of public importance as required under the standard. ‘The story dealt with the matter of “domestic abuse”, but its principal subject was the verdict and surrounding circumstances of a trial involving international celebrities, which had been conducted in the US. The story did not purport to be a balanced examination of the issue of domestic abuse, particularly in a manner with an obvious application to the New Zealand context.’
• ‘In any case, the Programme included a range of significant viewpoints which amply satisfied the Standard, including comments from Johnny Depp, Amber Heard and their respective legal teams. …we are satisfied that it was composed appropriately within the scope of legitimate editorial discretion.’
• The standard allows for balance to be achieved in other coverage, and ‘The report in question was far from the only coverage of the trial broadcast by 1 News. It was covered by 1 News as it progressed through its various stages, and viewers were presented with tracts of evidence and argument from both sides. Furthermore, the trial was covered extensively by other media (as you indicate in your complaint), both in New Zealand and overseas.’

Accuracy

• ‘…the Programme made it clear that Johnny Depp had won the defamation trial, which 1 News covered closely over its course. Substantial tracts of evidence and argument by both sides were presented to viewers during this coverage, allowing them to arrive at an informed and reasoned overall understanding of the trial.’
• ‘…much of your complaint relates to matters of legitimate editorial discretion which we do not propose to address under this standard.’
• ‘The reporter’s characterisation of the trial as “trial by Tik-Tok” was a statement of “analysis, comment or opinion”, to which the Accuracy Standard does not apply.’
• ‘…the brief reference to Mr Depp’s unsuccessful defamation case against The Sun was wholly relevant to reporting on the US trial. Having dealt with fundamentally similar claims (that Mr Depp had abused Ms Heard), it was not a “misleading comparison”, despite the technical distinctions you have noted.’
• It considered the figure of $12 million to be materially accurate – ‘Depp was awarded $10.35 million USD - $10M compensatory, $5M in punitive – under Virginia state law capped at $350,000. Heard was awarded $2M USD. So offset, Depp was owed $8.35M USD. The exchange rate was lower at the time, so converting into NZ dollars gives a figure of about $12.7M. Hence not rounding up to 13.’
• In any event, ‘Any discrepancy between the figure provided by the reporter and the eventual final sum awarded to Mr Depp was immaterial to viewer understanding of the result of the trial, which is that Mr Depp won and received a substantial award.’
• The statement that “the headlines may all be against Heard” ‘indicated that Mr Depp had won the trial (hence the headlines being against Ms Heard) as well as implicitly characterising the thrust of public opinion, which was overwhelmingly against Ms Heard. It was clearly a generalisation, and was also distinguishable as analysis, which is not subject to the Standard for Accuracy.’

The relevant standards

[9]  The balance standard¹ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.² The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.³

[10]  The accuracy standard states broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead.⁴ Its purpose is to protect the public from being significantly misinformed.⁵

Our analysis

[11]  We have watched the broadcast and read the correspondence listed in the Appendix.

[12]  As a starting point, we considered the right to freedom of expression. It is our role to weigh the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when limiting the right to freedom of expression is reasonable and justified.⁶

Balance

[13]  This standard 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 news and current affairs programmes.⁷

[14]  An issue of public importance is something that would have a significant potential impact on, or be of concern to, members of the New Zealand public. A controversial issue will be one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁸

[15]  The complainant’s concerns under this standard relate to the item being ‘biased in favour of Ms Heard’ and the failure to include material supporting Depp’s side of the story. We do not consider the specific dispute between Heard and Depp to constitute a controversial issue of public importance to New Zealanders. While the defamation trial may have been ‘of interest’ to some New Zealanders, it was unlikely to have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.

[16]  The complainant has argued the item discussed domestic violence, which is a controversial issue of public importance. We agree that the item (especially if the companion piece is taken into account) discussed this controversial issue of public importance (particularly with respect to the potential impact abuse via social media may have on domestic violence victims’ willingness to speak out). However, the complainant’s concerns under this standard do not relate to the omission of perspectives regarding this domestic violence issue.

[17]  On this basis, the balance standard does not apply (whether the complaint is focused on the full item or just the part preceding the companion piece).

[18]  In response to some of the complainant’s comments, we also note:

• We disagree that Depp’s perspective was not depicted. The item reported that Depp had won the trial, was awarded a substantial sum of money and had released a statement thanking the jury. It also featured footage of the jury’s decision being read out in court, clips of Depp’s testimony in court, and his lawyer’s statement outside the courthouse. The excerpts the broadcaster chose to illustrate Depp’s perspective were matters of editorial discretion, as was the omission of certain audio recordings identified by the complainant.
• The balance standard takes into account the current broadcasting environment and the increased flows of information available to the public from multiple sources.⁹ Had we concluded that the dispute or defamation trial between Depp and Heard constituted a controversial issue of public importance to New Zealanders (so that the balance standard applied), it would have been relevant that it was the subject of significant media attention both in New Zealand and internationally.¹⁰ In cases such as these, where audiences can reasonably expect to have a broad understanding of the main perspectives, a balance complaint against a particular broadcaster will rarely succeed.¹¹

Accuracy

[19]  Audiences may be misinformed in two ways: by incorrect statements of fact within the programme; and/or by being misled by the programme as a whole.¹² Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’¹³ Programmes may be misleading by omission, or as a result of the way dialogue and images have been edited together.¹⁴

[20]  The standard is concerned only with material inaccuracies. Technical or other points unlikely to significantly affect an audience’s understanding of the programme as a whole are not considered material.¹⁵

[21]  Further, the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.¹⁶ An opinion is someone’s view. It is contestable, and others may hold a different view.¹⁷ It is not always clear whether a statement is an assertion of fact or an opinion - this will depend on the context, presentation, and how a reasonable viewer would perceive the information.¹⁸

[22]  We address each of the statements which the complainant has alleged are inaccurate or misleading below.

“But in large part this has been trial by Tik Tok”

[23]  We consider this statement to be analysis, comment or opinion rather than a factual statement, and the accuracy standard therefore does not apply. Reasonable viewers would interpret it as a hyperbolic, descriptive commentary of the trial, referring to the large amount of social media activity in relation to the trial, particularly on Tik Tok. The statement is unable to be proved or disproved in the nature of a fact. In any event, we do not agree the statement implied the trial was unfair as the jury was influenced by social media activity.

“The headlines may all be against Heard but really there are no winners…”

[24]  We also consider this statement to be analysis, comment or opinion to which the standard does not apply, as it would also be recognisable to most viewers as descriptive commentary, in light of the fact Heard had lost the defamation trial. It would also have been clear to viewers that Depp had ‘won’ the defamation trial.

“Depp lost a similar claim of defamation in the United Kingdom in 2020”

[25]  We consider this statement to be materially accurate. Depp’s claim in that case was against The Sun newspaper rather than Heard, but the key question was also whether Depp had committed domestic violence against Heard.¹⁹ It is clear the cases dealt with very similar issues, despite the technical differences the complainant identified.

Depp “walked away with an award of $12 million”

[26]  We find this statement is also materially accurate. Offset, Depp was awarded USD $8.35 million.²⁰ Converting this to NZD at the time the verdict was released²¹ amounts to approximately NZD $12.7 million. We do not consider rounding this figure to $12 million, or reporting the offset figure made it materially inaccurate. Reasonable viewers would have understood it to refer to NZD given the report was on a New Zealand news programme.

[27]  For the reasons set out above, the item did not breach the accuracy standard.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
7 December 2022   

Appendix

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

1  Jacques Bancilhon’s formal complaint to TVNZ – 21 June 2022

2  TVNZ’s response to the complaint – 20 July 2022

3  Bancilhon’s referral to the Authority – 16 August 2022

4  TVNZ’s further comments – 5 September 2022

5  Bancilhon’s further comments – 16 September 2022

¹ Standard 8 of the Free-to-Air Television Code of Broadcasting Practice
² Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
³ As above
⁴ Standard 9 of the Free-to-Air Television Code of Broadcasting Practice
⁵ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁶ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
⁷ Guideline 8a
⁸ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹⁰ See for example: “Johnny Depp and Amber Heard face off at US defamation trial” NZ Herald (online ed, 12 April 2022); Anna Burns-Francis “ Heard tells court Depp has drug and alcohol problem” 1 News (online ed, 5 May 2022); Matthew Barakat “Amber Heard ends her court testimony, says she wants Johnny Depp to ‘leave me alone’” Stuff (online ed, 27 May 2022); Edward Helmore “Jury in Johnny Depp-Amber Heard defamation case hears of ‘mutual abuse’” The Guardian (online ed, 14 April 2022); Lisa Respers France “Camille Vasquez takes center stage in Depp/Heard trial” CNN (online ed, 19 May 2022)
¹¹ Guideline 8c
¹² As above
¹³Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
¹⁴ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
¹⁵ Guideline 9b
¹⁶ Guideline 9a
¹⁷ Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 64
¹⁸ As above
¹⁹ “Johnny Depp loses libel claim over Sun ‘wife beater’ claim” BBC (online ed, 2 November 2020)
²⁰ Emily Yahr, Travis M. Andrews, Helena Andrews-Dyer and Ashley Fetters Maloy “Johnny Depp-Amber Heard jury sides primarily with Depp in defamation trial” The Washington Post (online ed, 1 June 2022) – see section ‘What you need to know’
²¹ Exchange Rates.org.uk “US Dollar to New Zealand Dollar Spot Exchange Rates for 2022” (accessed 31 October 2022) <www.exchangerates.org.uk>