Banks and Dempsey and Television New Zealand Ltd - 2005-008
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Christopher Banks
- Christopher Dempsey
ProgrammeClose Up @ 7
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1)(a) of the Broadcasting Act 1989
Close Up @ 7 – programme focussed on forthcoming Civil Unions Bill – included a telephone poll asking viewers to respond to the question “Should gay relationships be legally recognised” – polls results found 24% in favour of gay relationships being recognised and 76% against – closing comments by host queried which polls politicians in support of the Bill were relying on – allegedly unbalanced and inaccurate
Standard 5 (accuracy) – poll not presented as scientific – results reflected only the views of those willing to call in – limitations of poll clear – host’s comments presented as opinion not fact – not upheld
Standard 4 (balance) – standard not applicable – not upheld
This headnote does not form part of the decision.
 An item focussing on the Civil Unions Bill was broadcast on Close Up @ 7 on 2 December 2004 at 7pm. As part of the item, the programme conducted a poll asking viewers to phone or text their answer to the question “Should gay relationships be legally recognised?” Results were announced at the end of the show, with 24% in favour of legal recognition of gay relationships, and 76% against. The presenter announced the findings and concluded the programme with the comment “it makes you wonder which polls the Government is relying on to say this Bill has support”.
 Christopher Banks of GayNZ.com and Christopher Dempsey of GayWatch.com, complained to Television New Zealand Ltd, the broadcaster, that the poll was “unscientific” and the item breached standards of balance and accuracy.
 They noted that the last poll conducted by TVNZ on this matter, in April 2004, was conducted by research firm Colmar Brunton, and found that a majority of people were in favour of the Bill. They also claimed that every other random scientific poll conducted in the media over the last year had produced similar results.
 They noted that TVNZ’s 0900 polls suffered from major statistical bias, because they canvassed only the relative minority of New Zealanders watching the programme at the time, and then only those who feel strongly enough to vote and pay for doing so. Moreover, no allowance was made for repeat voting.
 Messrs Banks and Dempsey considered the effect of the poll put TVNZ in clear breach of broadcasting codes relating to balance and accuracy, and pointed out that the poll was referred to in other media, namely
- On the broadcaster’s website, where, they claimed, the results were presented as an “accurate representation of public feeling”, with one item including the paragraph: “A recent Close Up @ 7 poll found New Zealanders strongly opposed to legally recognising gay relationships. The poll asked the question: Should gay relationships be legally recognised? Of the 17,463 people who responded, 4,316 said yes and an overwhelming 13,147 said no”;
- On TV One’s Tonight show (broadcast on the same date as the Close Up @ 7 programme) where a political commentator suggested that the poll could affect how politicians voted at the final reading of the Bill;
- In print media, with commentators in the New Zealand Herald and the Christchurch Press referring to the results to support the argument that the Bill lacked popular support;
- On both Newstalk ZB and Radio Pacific talkback where discussion by callers “reflected the fact that the phone-in results had sunk in as ‘fact’”.
 The complainants also noted that the Campaign Against Civil Unions displayed a pie graph of the result on their website, also including the presenter’s closing comments.
 The complainants alleged that the concluding comments by the presenter breached standards relating to balance and impartiality by ignoring all other scientifically conducted polls on the issue, and casting doubt on the government’s claim that there was widespread public support for the Bill.
 They also contended that TVNZ claimed that 0900 polls were accurately reflective of public opinion, which was a significant error of fact. Moreover, they maintained that broadcasting such material misled the public.
 The complainants alleged that the host made no effort to distinguish between factual results, and her analysis or opinion of them. Furthermore, they asserted that the use of 0900 polls by the broadcaster contravened its obligation to ensure that its news and current affairs sources were reliable.
 TVNZ assessed the complaint under Standards 4 and 5 of the Free-to-Air Television Code of Broadcasting Practice, which provide:
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.
5a Significant errors of fact should be corrected at the earliest opportunity.
5b Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.
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.
Broadcaster's Response to the Complainant
 Responding to the complaint, TVNZ commented that telephone polls were a regular feature of Close Up @ 7, as they were on other programmes and throughout various other media. TVNZ asserted that at no time had they claimed that the polls were scientific.
 In TVNZ’s opinion, the limitations of such polls were clear. It pointed out the cost of phone calls, ability of viewers to make multiple calls, and the limited pool of participants as factors limiting the scientific value of such polls. Additionally, it observed that the complainants themselves had recognised the limitations of the poll results, and thus there was no reason to suggest the rest of the viewers would not reach the same conclusion.
 TVNZ contended that television polls were conducted to provide an opportunity for viewers to interact with the programme, and “no claim was made about the outcome beyond providing the result”. The host’s closing comments, it argued, were “clearly presented as an expression of opinion.”
 In the opinion of TVNZ, the treatment of the poll was recognisably different from a news item analysing a scientific poll. It did not believe that any politicians would be influenced in a conscience vote by the results of a telephone poll featured on Close Up @ 7.
 In respect of Standard 4 (balance), TVNZ considered that the terms of the poll (in respect of how the question was phrased) were balanced, and that the result at the end of the programme presented the poll result in a balanced way. It also considered that over the period of the Civil Union debate, TVNZ news and current affairs had provided balance by covering the issue from a variety of viewpoints.
 Turning to Standard 5 (accuracy), TVNZ considered that the results of the poll were reported accurately. It noted that nowhere in the programme was it “stated or implied” that the poll was an “accurate reflection of public feeling”. It acknowledged that the poll was clearly not scientific because of “the limitations obvious in the process”.
 In respect of Guideline 5e, TVNZ emphasised that it considered a poll was a device to provide the audience with an opportunity to interact with the programme, and while “transparently unscientific” was of “interest or curiosity value.”
 TVNZ declined to uphold the complaint.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Christopher Banks and Christopher Dempsey referred their complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. They reiterated the points made in their original complaint to the broadcaster.
 They added that TVNZ had not pointed out that 0900 polls were not scientific, and had failed to distinguish them from other polls that it also used.
 They also noted TVNZ’s comment that it would be “inappropriate” to compare the 0900 poll with random scientific polls like those conducted by research company Colmar Brunton, but claimed that was exactly what the presenter did in her concluding comments.
 The complainants compared a similar snap poll conducted on BBC World, noting that it was accompanied by comments to the effect that the poll was not “scientific”, and maintained that TVNZ should have done the same.
 They objected to TVNZ’s response that for politicians to be influenced in a conscience vote by a Close Up poll would be “preposterous”, noting that TVNZ’s own political commentator had observed that such an influence could be a consequence of the poll results.
 The complainants did not agree with TVNZ’s argument that, because they as complainants had recognised the limitations of the poll, other viewers would also have done so. In making this point, the complainants contended, TVNZ ignored all the evidence provided to show that this was not the case.
 The complainants opined that the poll had had an effect on the public, noting that the results had been widely quoted in other media (including international media) and were used to support the view that the Civil Unions Bill was unpopular with many New Zealanders. They noted that representatives of the Catholic Church, the radio and print media, and numerous radio talkback callers and newspaper letter writers had alluded to the poll in support of their position. They claimed this was not supported by other, more accurate, poll results.
 They refuted TVNZ’s contention that the host’s closing comments were an “obvious expression of opinion”, and asked how viewers were meant to recognise this when she delivered the results and immediately questioned which polls the Government was relying on in saying the Bill had support.
 They considered the results of the poll were not reported accurately and claimed that in order to do so, the term “calls” would have to be used to describe how the numbers in the poll were made up, as the poll made no allowance for repeat calling. They alleged that “people” was the only term used on the programme to describe the voting figures.
 In respect of the balance complaint, the complainants felt that TVNZ had failed to address their complaint in the first instance. The complainants noted that the issue raised by the Close Up poll (“Should gay relationships be legally recognised?”) was a controversial one, as TVNZ had already acknowledged. In answering this question, they noted that TVNZ was telling viewers that an overwhelming majority of people, not callers, disagreed.
 The complainants also noted that the poll results had been affirmed in other news programmes and on TVNZ’s website. At no point, they asserted, had the broadcaster told viewers that the poll results were findings based on an unscientific method of polling, and were therefore not an accurate reflection of public feeling. They noted that if TVNZ wished to provide an opportunity for its viewers to interact with the show, other methods like talkback and texting were available.
 In conclusion, the complainants maintained that TVNZ needed to clarify to its audience that the 0900 polls were indeed “transparently unscientific”. Otherwise they asserted, conducting such polls was “nothing more than interactive sensationalism”.
Broadcaster’s Response to the Authority
 TVNZ made a number of points relating to the complainant’s referral to the Authority. It noted that TVNZ had been conducting telephone polls for a number of years and considered viewers understood the unscientific nature of the polls. It did not feel it was necessary to spell out their unscientific nature each time a poll was conducted.
 In any event, TVNZ considered that the method of presentation and analysis of such polls clearly distinguished them from other polls such as those conducted by Colmar Brunton.
 It also pointed out that the complainant had understood the unscientific nature of the poll, and it considered it somewhat patronising of Messrs Banks and Dempsey to claim the same realisation had not occurred to the rest of the viewing audience. Moreover, it expressed astonishment at the complainants’ opinion that talkback and interactive texting were better channels for viewer interaction than telephone polls.
 TVNZ contended that it was in the nature of Close Up @ 7 that the presenter would “inject some opinion” but was of the belief that the viewing public would be able to discern between fact and opinion or commentary.
 TVNZ also made the point that what news media outlets elsewhere made of the poll results was of no relevance to a formal complaint about the programme broadcast on 2 December 2004.
Complainants’ Final Comment
 The complainants agreed with TVNZ that GayWatch and GayNZ.com would not have complained had the results been reversed, pointing out that they were concerned with negative effects on the gay and lesbian community, a “vulnerable minority protected under the Broadcasting Code”.
 They asserted that they would also not have complained had TVNZ “shown the responsibility we feel is required from them under this Code to treat issues of controversy with sensitivity” and not to “present material which misleads or alarms viewers”.
 Mr Banks and Mr Dempsey contended that the complaint clearly demonstrated the significant numbers of the public who took the result of this poll to be definitive. They disputed TVNZ’s contention that coverage in other media was irrelevant, asserting that “the whole point of having a Broadcasting Code is born out of recognition that there are harmful and negative effects associated with irresponsible broadcasting.”
 Noting TVNZ’s expressed surprise at the idea that talkback and interactive texting were “better ways of dealing with viewer perceptions than telephone polls”, the complainants observed that TVNZ had claimed that 0900 polls had nothing to do with viewer perceptions, as they were “transparently unscientific”, and were a “device to provide viewers with an opportunity to interact with the programme.” They asserted that this would seem to be a “[clear admission] that TVNZ’s 0900 polls have an effect on viewer perception.”
 The complainants also noted TVNZ’s claim that it was the nature of the show for the presenter to inject some opinion, and contended that the issue had been considered before by the Authority, noting Decision No. 2003 – 109, where the Authority considered that Paul Holmes’ comments on Maori land issues were “inflammatory and displayed partiality”.
 Mr Banks and Mr Dempsey asserted that the comment complained of was “in the same category”, and “crossed the line of impartiality” by calling into question the scientific polls conducted on this issue.
 The complainants commented that they did not feel that TVNZ distinguished meaningfully between its “unscientific polls and its scientific ones”. They observed that TVNZ felt that there was no need to tell viewers 0900 polls were unscientific because “they’ve been conducting them for years”, and questioned, on that basis, why TVNZ still warned viewers before every poll that there was a cost involved in responding.
 They noted that if TVNZ did not advise viewers of the costs associated with 0900 polls, the possibility would arise that people would complain, and concluded that “the cost in this case is misinformation”, with the result being “negativity perpetuated against the gay and lesbian community for no other reason than to bow to ‘viewer interactivity’”.
 The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 The complainant was concerned that the poll was inaccurate and misleading and misrepresented 0900 polling as scientific polling of public opinion. Further, the complainant alleged the host’s closing comments were partial and did not clearly distinguish fact from opinion.
 The Authority considers that the broadcaster did not present the 0900 poll as a scientific analysis of public opinion. Instead, the poll was clearly intended to provide an interesting addendum to the wider story and reflect the opinions of the viewers who called in and registered their views. The programme made no claims of scientific or statistical validity. The Authority observes that phone-in polls are a well recognised feature of the show and of its predecessor.
 In relation to the host’s final comments, the Authority is of the view that they were simply an off-the-cuff expression of opinion in light of the phone-in poll results, and did not display partiality as alleged.
 The Authority is also of the view that the poll did not mislead or alarm viewers, who would have understood the limitations of the 0900 polling system. Nor was the use of the 0900 poll a breach of the obligation to ensure sources are reliable, as the poll was not presented as reflecting wider public opinion.
 In respect of the complainant’s allegation that the term “calls” rather than “people” should be used, the Authority notes that, in fact, the term “votes” was used, and accordingly the description of the poll by the host of the programme was accurate.
 Finally, the Authority notes that in this instance, the use by other media of the poll results is not relevant to its determination of the appropriateness or otherwise of the broadcast in question.
 The complainant contended that the poll was unbalanced in its presentation. The Authority however, is of the view that the poll is not itself something to which the balance standard can be applied. This is because the requirement of balance applies only to the way in which a controversial issue has been discussed and presented throughout an item or programme as a whole. It cannot sensibly be applied to individual components which make up just part of a programme, such as a viewer poll, which itself only reflects the opinions of those viewers who chose to participate.
 For this reason, the Authority considers that the balance standard is not applicable to the complaint, and that the complainant’s concerns are properly addressed as issues of accuracy. The balance complaint is not upheld.
 Finally, the Authority observes that broadcasters should be wary of treating viewer polls on controversial issues of public importance with more weight than they merit, particularly where public debate has been, and continues to be, intense. In this respect, the Authority considers that the presenter’s closing comment was unwise although it did not amount to a breach of broadcasting standards.
For the above reasons the Authority declines to uphold the complaint
Signed for and on behalf of the Authority
23 May 2005
The following correspondence was received and considered by the Authority when it determined this complaint:
- Christopher Banks and Christopher Dempsey’s Formal Complaint to TVNZ – 17 December 2004
- TVNZ’s Response to the Formal Complaint – 4 February 2005
- Christopher Banks and Christopher Dempsey’s Referral to the Authority – 16 February 2005
- TVNZ’s Response to the Authority – 7 March 2005
- Christopher Banks’ Final Comment to the Authority – 4 April 2005