BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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An appeal against this decision was allowed in the High Court and the complaint was referred back to the Authority for reconsideration:
CIV 2010-485-225  PDF136.55 KB

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Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Sunday with Chris Laidlaw – host interviewed sociologist about anti-Semitic fringe groups in New Zealand that were seeking to deny or downplay the extent of the Holocaust – interviewee made statements about an individual who he said was a Holocaust denier – allegedly inaccurate

Findings
Standard 5 (accuracy) – item was a factual programme – interviewee made statements of fact that were material to topic under discussion – accusations extremely serious – broadcaster did not make reasonable efforts to assess the veracity of the accusations – upheld by majority

No Order

This headnote does not form part of the decision.

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Broadcast

[1]   During a segment called “Ideas” on Sunday with Chris Laidlaw, broadcast on Radio New Zealand National on the morning of 8 June 2009, the host interviewed a sociologist, Dr Scott Hamilton, about anti-Semitic fringe groups in New Zealand that were seeking to deny or downplay the gravity of the Holocaust. The host introduced the segment by saying:

As Professor Berthoff said, the Holocaust became a defining event in the 20th Century. The scale of the horror is beyond question, unequalled by any other episode of genocide, both in scale and in morbid intent. But as sociologist Scott Hamilton has discovered, there are groups in New Zealand, as elsewhere, that do attempt to question and downplay the Holocaust.

What are their motives? I caught up with Scott Hamilton recently and began by asking him about the extent of Holocaust denial in New Zealand.

[2]   Dr Hamilton stated that, in New Zealand, anti-Semitism had traditionally been a minority viewpoint along with Holocaust denial and that one tended to flow on from the other. He went on to say that his worry was that the country was getting a new generation of people who were becoming attracted to anti-Semitic discourses in relation to global events, such as the global financial crisis and Israeli/Palestine conflict.

[3]   The interviewee also talked about a New Zealand magazine called Uncensored, and his concerns that the magazine was mixing credible material written by respected scholars with extreme material, such as anti-Semitic discourse.

[4]   Towards the end of the interview, Dr Hamilton stated:

I certainly think there are hardcore Holocaust deniers active in New Zealand, and they’re always trying to get their message out there. Quite a key figure is Kerry Bolton. He has close connections with Frederick Toben and the Adelaide Institute. Frederick Toben has been in the news in the last couple of weeks because he’s been sent to jail for Holocaust denial in Australia, and Toben and Bolton work quite closely, and Bolton’s been absolutely, very industrious in pushing these ideas in New Zealand.

And [Bolton has] attempted to insinuate himself into things like the anti-war movement in New Zealand, the Palestine Solidarity movement. He’ll go along to demonstrations and he’ll present himself as a legitimate critic of Israeli foreign policy and he’ll slide from that to anti-Semitism and Holocaust denial. And there have been isolated instances of, especially young people, in the anti-war movement and Palestine Solidarity movement who have been taken in by this stuff.

[5]   The host questioned Dr Hamilton about the theory that New Zealand was originally settled by an advanced civilisation of Europeans before Māori “invaders” wiped them out. Dr Hamilton’s response included the following statement:

Well, there’s an intersection between the people promoting these ideas, um, the Celtic New Zealand thesis was actually created by Kerry Bolton, who, of course, is promoting anti-Semitism and Holocaust denial.

[6]   The interview ended with Dr Hamilton saying that people promoting Holocaust denial and anti-Semitism needed to be criticised for their views

Complaint

[7]   Mr Kerry Bolton made a formal complaint to Radio New Zealand Ltd (RNZ), the broadcaster, alleging that the programme breached Standard 5 (accuracy). The complainant argued that the claims made by Dr Hamilton that he was anti-Semitic and actively promoted Holocaust denial were inaccurate.

[8]   Mr Bolton outlined a further five statements allegedly made by Dr Hamilton that he considered to be inaccurate, namely that:

• he had worked closely with Frederick Toben
• he was the “inventor” of the Celtic New Zealand theory
• he had infiltrated the anti-war movement and had shown up to meetings to air his views
• he had infiltrated the Palestine Solidarity movement
• he had exercised influence over unwary youth.

[9]   With respect to Dr Hamilton’s statements about Uncensored magazine being an anti-Semitic medium, Mr Bolton said that the magazine’s editor, Jon Eisen, was “a New York Jew” and “a veteran of the US civil rights movement”. He considered that this should have been pointed out to listeners.

Standards

[10]   RNZ assessed the complaint under Standard 5 of the Radio Code of Broadcasting Practice, which provides:

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Broadcaster's Response to the Complainant

[11]   RNZ noted that Standard 5 only applied to news, current affairs and factual programmes. It argued that “Ideas” fell into the genre of “society and people programming”, as it was a weekly segment that explored a range of philosophical, social, historical and environmental ideas. As such, the broadcaster considered that the “Ideas” segment was not news, current affairs or factual programming, and it declined to uphold the accuracy complaint.

[12]   Alternatively, if the accuracy standard did apply, the broadcaster said that Dr Hamilton stood by all of his statements.

Referral to the Authority

[13]   Dissatisfied with RNZ’s response, Mr Bolton referred his complaint to the Authority under Section 8(1B)(b)(i) of the Broadcasting Act 1989. He considered RNZ’s argument that “Ideas” was not a factual programme to be disingenuous. The complainant also contended that a broadcaster could not simply assert that an interviewee stood by their comments to prove the accuracy of them.

Further information Requested by the Authority

[14]   The Authority asked RNZ to outline the basis for the statements made by Dr Hamilton which Mr Bolton alleged were inaccurate.

[15]   With respect to the assertion that Mr Bolton exercised influence over unwary youth, the broadcaster argued that the comment was not a statement of fact, but an expression of “expert opinion” to which the accuracy standard did not apply. Likewise, it contended that Dr Hamilton’s comment that Mr Bolton was the inventor of the New Zealand Celtic Theory could not be assessed under Standard 5 because it was a statement based on Dr Hamilton’s professional opinion.

[16]   RNZ provided the Authority with the following comments from Dr Hamilton in relation to each of the allegedly inaccurate statements.

Mr Bolton had worked closely with Frederick Toben

[17]   Dr Hamilton stated that Frederick Toben was the founder and director of the Adelaide Institute, an Australian organisation which devoted its energies to denying the Holocaust. He contended that Mr Bolton was listed until recently on the Adelaide Institute’s website as the organisation's New Zealand Associate. Dr Hamilton argued that Mr Bolton had presented at least one paper at a conference of the Institute and that until recently the organisation had made a number of Mr Bolton’s works available on its website.

[18]   Dr Hamilton contended that there were a number of references in the media and on the internet that attested to the fact that Mr Bolton was closely associated with Toben's Institute. As an example, Dr Hamilton referred to the Waikato students' magazine Nexus which he said ran a collection of quotes from Mr Bolton, including quotes from texts he published on the Adelaide Institute’s website. Dr Hamilton also stated that, in 2006, Mr Bolton's connections with the Adelaide Institute were the subject of a lengthy article on the “Fightdemback Website” called “Kerry and the Holocaust deniers”.¹ The article discussed the Adelaide Institute, Holocaust denial and Mr Bolton’s material on the Institute’s website. He said the site specialised in analysing the far right in Australia.

[19]   Dr Hamilton also provided a link to a 2008 article called “Kerry Bolton: The Man, The Myth, The Manmyth”, which was available on the website of the Students’ Association of Unitec.² The article referred to Mr Bolton as a Holocaust denier and contained an alleged quote from Mr Bolton from the website of the Adelaide Institute calling the Holocaust “fictitious blather”. The Authority notes that the alleged “fictitious blather” quote in the article was undated and is now inaccessible.

[20]   The article also contained quotes from another interview with Mr Bolton by Nexus magazine, which included the following exchange:

Nexus:     Okay, but what I’m asking is would you describe yourself as a Holocaust denier?
Bolton:     Oh no, no. No. Not as such.
Nexus:     What are your views on it then?
Bolton:     Oh, I believe that certain aspects of it can be questioned, as can any part of 
               history.

[21]   Dr Hamilton argued that Mr Bolton did have close connections with the Adelaide Institute and therefore had close connections with its director Mr Toben. He provided the Authority with links to websites containing the information and articles he referred to. However, he pointed out that the link to the Adelaide Institute’s website no longer led to the information, as it was now a dead link.

Mr Bolton was the inventor of the Celtic New Zealand theory

[22]   Dr Hamilton stated that this claim was part of an exposition on the intellectual history of the notion that white people, often identified as Celts or pre-Celts, settled New Zealand in ancient times before being conquered by Māori. He said he was concerned with tracing the genealogy of this idea and that the best-known expression of the idea occurred in Martin Doutre's book “Ancient Celtic New Zealand”, which was published in 1999 by De Nanann Publishers. He said that, Mr Bolton's texts “Ngati Hotu: the White Warrior Tribe, Legends of the Patupaiarehe – NZ’s White Fey folk”, and “Lords of the Soil: the story of the turehu”, were all published before 1999, and that they all put forward the notion of a pre-Māori people of Celtic origins settling New Zealand. Dr Hamilton considered that Mr Bolton had published the idea first and that he “demonstrably deserves to be considered the inventor of what is now known as the Celtic New Zealand theory”.

Mr Bolton had infiltrated the anti-war movement and the Palestinian Solidarity Movement, and had shown up at meetings and aired his views

[23]    Dr Hamilton stated that the issue of Mr Bolton infiltrating the anti-war movement should be considered with his infiltration of the Palestinian Solidarity Movement, as they were both anti-war movements.

[24]   Dr Hamilton argued that Mr Bolton’s attempts to infiltrate the anti-war movement, and therefore the Palestine Solidarity Movement were a “matter of public record”. He stated that in 2003, Mr Bolton had turned up to several events organised by Wellington anti-war groups, including Peace Action Wellington, and distributed leaflets in the name of a group called “Anti-Zionist Action”. Dr Hamilton contended that this group was regarded as a front for Mr Bolton and a small group of his supporters.

Mr Bolton exercised influence over unwary youth

[25]   Dr Hamilton stated that this claim was partly a matter of opinion. He argued that Mr Bolton had held leadership positions within organisations with overwhelmingly youthful memberships. For instance, Dr Hamilton said in 2004 Mr Bolton became the National Secretary of the National Front, which he argued was a far right political organisation that recruited young people from the “skinhead gang scene”. Dr Hamilton argued that it was reasonable to consider that, in such a position, Mr Bolton was able to wield “unhealthy” influence over youths.

Complainant’s Response to the Further Information

Mr Bolton had worked closely with Frederick Toben

[26]   Mr Bolton argued that he had never “presented” a paper to the Adelaide Institute and that he was not listed as the New Zealand “Associate” on the Institute’s website. He stated that he had not been to Australia for over 20 years.

Mr Bolton was the inventor of the Celtic New Zealand theory

[27]   Mr Bolton argued that he had not heard of the theory about Celts until reading Martin Doutre’s book. He contended that the authoritative text on such theories was Dr K R Howe’s 2003 book “The Quest for Origins”. Mr Bolton pointed out that he was not mentioned in the book’s discussions on the theory, but that Dr Doutre and others were.

[28]   Mr Bolton argued that none of the books referred to by Dr Hamilton “put forward a Celtic theory” and that all apart from one of the books mentioned by Dr Hamilton were published after 1999. He maintained that he was not the inventor of the Celtic New Zealand theory.

Mr Bolton had infiltrated the anti-war movement and the Palestinian Solidarity Movement, and had shown up at meetings and aired his views

[29]   Mr Bolton stated that he and his wife had attended a Wellington anti-war protest in 2003 which was attended by several hundred people. He contended that there were people from many different groups, including anarchists, Trotskyists and Maoists, and ordinary anti-war liberals and that it was a nonsense that he had tried to infiltrate any anti-war movements.

[30]   With reference to Dr Hamilton’s claim that he had attended “several events” in 2003, Mr Bolton argued that this was incorrect and he was unsure what events Dr Hamilton was referring to.

Mr Bolton exercised influence over unwary youth

[31]   Mr Bolton noted that Dr Hamilton had claimed he had, at times, held leadership positions within organisations with overwhelmingly youthful memberships. He pointed out that, apart from referring to the National Front, Dr Hamilton did not name any other organisations.

[32]   Mr Bolton stated that he was the Secretary for the National Front organisation for a year in 2004, but left after he could not change the organisation’s course with respect to race relations. He stated that he had explicitly opposed racist and nazi-esque influences in the organisation and that he could provide statements to that effect from ex-members if necessary.

[33]   Mr Bolton argued that there was no basis to the claim that he exercised an unhealthy influence over unwary youth in the National Front organisation or any other. He maintained that Dr Hamilton’s statements were inaccurate and in breach of Standard 5.

Additional Information Requested by the Authority

[34]   The Authority requested background information from the broadcaster about Dr Hamilton’s credentials so that it could understand why he was selected to speak as an expert on the topic of anti-Semitism and Holocaust denial in New Zealand.

[35]   RNZ stated that Dr Hamilton had been invited by the programme’s producer to participate in the programme “on the basis of the blogs he had written” connecting the New Zealand Celtic thesis to people promoting Holocaust denial.

[36]   The broadcaster stated that Dr Hamilton had also been interviewed by other media, such as 95bFM.

Authority's Determination

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

Factual programmes

[38]   Standard 5 (accuracy) applies to news, current affairs and “other factual programmes”. The “Ideas” segment of Sunday with Chris Laidlaw was not a news or current affairs programme, and therefore the Authority must decide whether the segment fell within the definition of a “factual programme”.

[39]   In Accident Compensation Corporation and TVNZ,³ the Authority stated that factual programmes are those which present themselves, and are reasonably understood by the audience, to be authoritative sources of information. It found that the important criterion was whether a reasonable viewer or listener was entitled to expect that the information given in the programme would be truthful and authoritative, and not just opinion or hyperbole.

[40]   The Authority notes that the presenter introduced Dr Hamilton by saying:

But as sociologist Scott Hamilton has discovered, there are groups in New Zealand, as elsewhere, that do attempt to question and downplay the Holocaust. What are their motives? I caught up with Scott Hamilton recently and began by asking him about the extent of Holocaust denial in New Zealand.

[41]   A majority of the Authority (Joanne Morris, Tapu Misa and Mary Anne Shanahan) considers that the programme presented Dr Hamilton as an expert source of information on Holocaust denial and those allegedly engaged in the practice in New Zealand and elsewhere. As a result, it considers that listeners would have expected the information provided by Dr Hamilton to be truthful, authoritative and not just opinion. In these circumstances, the majority finds that “Ideas” was a factual programme to which Standard 5 applied.

[42]   A minority of the Authority (Paul France) is satisfied that listeners would have clearly understood the nature of the programme to be largely the expression of opinion. The minority considers that the name of the programme, “Ideas”, supports this finding and clearly implied that the content would, to some extent at least, be an exploration of ideas and musing about possibilities, rather than hard and fast expression of perceived fact. Having reached the view that the programme was not a “factual programme” to which the accuracy standard applies, the minority would not have upheld the complaint at this point.

[43]   The majority of the Authority now turns to consider the points raised by Mr Bolton.

Statements of fact

[44]   The majority notes that, during the initial stages of the interview, Dr Hamilton discussed Holocaust denial and anti-Semitic discourses in general, including the history of such ideas in New Zealand and their appeal to certain small sectors of society. However, during the later stages of the interview, Dr Hamilton made specific comments about Mr Bolton. For example, Dr Hamilton stated:

I certainly think there are hardcore Holocaust deniers active in New Zealand, and they’re always trying to get their message out there. Quite a key figure is Kerry Bolton... and Bolton’s been absolutely, very industrious in pushing these ideas in New Zealand... He’ll go along to demonstrations and he’ll present himself as a legitimate critic of Israeli foreign policy and he’ll slide from that to anti-Semitism and Holocaust denial.

[45]   RNZ argued that Dr Hamilton’s comments were not statements of fact, but an expression of expert opinion and, as such, the accuracy standard did not apply. The majority of the Authority disagrees with regard to Dr Hamilton’s statements about Mr Bolton.

[46]   The majority notes that Dr Hamilton’s statements about Mr Bolton were not qualified by phrases such as “in my opinion” or “I believe”. There were no cues in Dr Hamilton’s language that would have prompted the audience to distinguish his statements about Mr Bolton as being opinion or speculation. As a result, the majority finds that Dr Hamilton’s assertions were presented to listeners as categorical statements of fact.

Material points of fact

[47]   Under Standard 5, broadcasters must make reasonable efforts to ensure the accuracy of “material points of fact”. In this case, the programme discussed the issue of Holocaust denial in New Zealand. Dr Hamilton used Mr Bolton as the one concrete example of an active Holocaust denier in this country, and therefore his statements about Mr Bolton were relevant and significant in the context of the programme. The majority therefore finds that Dr Hamilton’s statements of fact about the complainant were material to the topic subject to discussion.

[48]   With respect to Mr Bolton’s contention that Dr Hamilton should have pointed out to listeners that the editor of Uncensored magazine was a “New York Jew” (see paragraph [9]), the majority does not consider that point to be a material point of fact to which the accuracy standard applies, and therefore it does not uphold that part of the complaint.

Accuracy of the statements

[49]   The majority notes that it can be difficult for a complainant against whom serious allegations have been made to prove that they are not true. In this instance, it is difficult to imagine how Mr Bolton could prove that he is not a Holocaust denier. However, by the same token, the Authority cannot require RNZ to prove the truth of what Dr Hamilton said in the programme⁴. It can only ask both parties to provide whatever evidence or information they have, and make a decision based on that evidence.

[50]   On the information provided by the parties, the majority is unable to determine whether Dr Hamilton’s statements were accurate. Accordingly, it does not make a finding as to whether Mr Bolton is an active Holocaust denier.

[51]   However, the majority observes that the evidence provided by Dr Hamilton is scant and, based on that information alone, the majority finds that Dr Hamilton did not have a strong basis upon which to make such serious allegations about Mr Bolton’s character. To label Mr Bolton as an active and “hardcore” Holocaust denier requires, in the majority’s view, much more than one website page in which an undated quote attributed to Mr Bolton referred to the Holocaust as “fictitious blather”. Dr Hamilton has not been able to provide any other supporting material – such as publications or quotes – that would lend support for his assertion that Mr Bolton is actively, and industriously, promoting Holocaust denial within this country.

[52]   The majority considers that Dr Hamilton’s other statements about Mr Bolton are of less importance, as they were simply used to bolster his point that Mr Bolton was an active Holocaust denier. However, Dr Hamilton has not satisfied the majority of the Authority that he had a sound basis for his allegations regarding Mr Bolton “insinuating” himself into anti-war movements and influencing young people. Dr Hamilton’s only evidence is that Mr Bolton appeared at one anti-war rally in 2003 and was previously the Secretary of the National Front. It does appear that Mr Bolton had contributed to the website of the Adelaide Institute at some point in time, although the links to his publications are now dead. Similarly, although Mr Bolton may have written on the subject of what could be labelled as a “Celtic New Zealand” theory, Dr Hamilton has not provided any evidence upon which the majority could reasonably conclude that Mr Bolton was the creator of that theory.

[53]   Because it has been unable to determine whether any of Dr Hamilton’s statements of fact were accurate, the majority of the Authority now turns to consider whether RNZ made “reasonable efforts” to ensure that the statements made by Dr Hamilton were accurate. This test was incorporated into Standard 5 on 1 July 2008.

Reasonable efforts

[54]   Whether a broadcaster has made “reasonable efforts” to ensure the accuracy of factual statements depends entirely on the circumstances of each case.

[55]   In the majority’s view, RNZ allowed Dr Hamilton to launch a personal attack on Mr Bolton without adequately checking the basis for his statements. Stating that a person is a “hardcore Holocaust denier active in New Zealand” is extremely serious and potentially damaging to an individual’s reputation.

[56]   In the majority’s view, a higher standard of what constitutes “reasonable efforts” must be applied to pre-recorded items, such as the item under examination here, because the broadcaster has the opportunity to make its own inquiries or request supporting material from an interviewee to assess the veracity of factual statements.

[57]   In this case, RNZ had an opportunity to question Dr Hamilton about the basis for his statements about Mr Bolton, and edit them out of the programme if he could not provide a satisfactory basis for the claims. Instead, RNZ accepted what Dr Hamilton said and made no further inquiries to corroborate his assertions. While Dr Hamilton may have been an expert on anti-Semitism and Holocaust denial, the majority considers that, in light of the seriousness of the allegations and the fact that they were about a named individual, RNZ should have required Dr Hamilton to substantiate them. If he could not do so, RNZ had an opportunity to remove the comments from the broadcast version.

[58]   In these circumstances, the majority finds that RNZ did not make reasonable efforts to ensure that Dr Hamilton’s allegation that Mr Bolton was an active Holocaust denier was accurate.

[59]   Having reached this conclusion, the majority must now consider whether to uphold this part of the complaint as a breach of Standard 5.

[60]   The majority 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 Radio New Zealand,⁵ 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.

[61]   In the majority’s view, the objective of Standard 5 is to ensure that broadcasters make reasonable efforts to protect audiences from receiving misinformation and thereby being misled. Audiences of news, current affairs and factual programmes have the right to receive accurate information.

[62]   The majority considers that it would be a reasonable and proportionate limit on RNZ’s freedom of expression to uphold a breach of Standard 5 on this occasion. Upholding Mr Bolton’s complaint clearly promotes the objective of Standard 5 as outlined above in paragraph [61], because the majority has found that RNZ did not make reasonable efforts to ensure the accuracy of material points of fact. In these circumstances, the majority upholds the Standard 5 complaint.

For the above reasons a majority of the Authority upholds the complaint that the broadcast by Radio New Zealand National of Sunday with Chris Laidlaw on 8 June 2009 breached Standard 5 of the Radio Code of Broadcasting Practice.

[63]   Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It does not intend to do so on this occasion. Where a decision is not unanimous, it has been the practice of the Authority to decline to impose an order, unless the circumstances of the complaint are exceptional. In this case, taking into account that this is the first decision regarding the new requirement for “reasonable efforts” in the accuracy standard, the Authority considers the publication of the decision is sufficient.

Signed for and on behalf of the Authority

Joanne Morris
Chair
21 December 2009

Appendix

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

1.          Kerry Bolton’s formal complaint – 8 June 2009
2.         RNZ’s response to the formal complaint – 30 July 2009
3.         Mr Bolton’s referral to the Authority – 1 August 2009
4.         RNZ’s response to the Authority – 27 August 2009
5.         RNZ’s response to Authority’s request for further information – 21 October 2009
6.         Mr Bolton’s response to RNZ’s response – 22 October 2009
7.         RNZ’s response to Authority’s request for further information – 28 October 2009
8.         Mr Bolton’s final comment – 28 October 2009
9.         Additional information from RNZ about Dr Hamilton’s expertise – 19 November 2009

¹Article available at: www.fightdemback.org/2006/12/26/kerry-and-the-Holocaust-deniers/

²Article available at: www.usu.co.nz/inunison/blog/kerry-bolton-the-man-the-myth-the-manmyth/. Article no longer available.

³Decision No. 2006-126

⁴See Television New Zealand Ltd v KW PDF (129.96 KB), HC AK CIV-2007-485-001609 [18 December 2008], paragraphs 29-32.

⁵Decision No. 2008-040