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 an item on Newshub Live at 6pm reporting on an instance of alleged illegal fishing in a marine reserve. The introduction stated, ‘A dive company owner has described [the fishing] as a “blatant and reckless raiding party”. Video posted on social media appears to show the men at the Poor Knights Islands [which has] been protected for decades…’ Clips of the video were shown in the item, with the individuals’ faces blurred. The complaint was that the story was ‘ill informed’ and had caused ‘a lot of harm’ to the individuals involved and their families, including death threats. The Authority found no breach of the accuracy or fairness standards, noting: the incident was accurately reported as ‘alleged’ and under investigation; the public nature of the content prior to the broadcast; the high public interest in the alleged illegal fishing; the reporter had contacted the person who posted the content, giving an opportunity to comment; and Newshub reported on that person’s apology and explanation posted on social media the following day.

Not Upheld: Accuracy, Fairness

The broadcast

[1]  An item on Newshub Live at 6pm, broadcast on 14 May 2024, reported on an instance of alleged illegal fishing within the Poor Knights Islands marine reserve. The item was introduced:

A dive company owner has described a group apparently fishing inside a marine reserve as a ‘blatant and reckless raiding party’.

Video posted on social media appears to show the men at the Poor Knights Islands off Tūtūkākā coast and Northland. The area has been protected for decades and is known as one of the world’s best dive spots.

[2]  The item by Newshub’s Investigations Correspondent, Michael Morrah, included clips taken from the videos posted on social media, showing a group of people on a fishing vessel. The individuals’ faces were blurred; their hair, bodies and clothing were visible in some shots (blurred in others); and their voices could be heard in the video showing them fishing and the fish they had caught:

Fisherman: Boys just doing a bit of a clean-up in here…

…

Fisherman: Stop picking on the marine life, leave him alone.

…

Fisherman: King’s [kingfish] on the menu [being reeled in]. That’s legal.

[3]  Comments were included from three interviewees who strongly condemned the fishing:

Interviewee (Dive Tūtūkākā): I felt sick to the stomach. It was really blatant. It’s a total disregard. It’s disrespectful. It’s like a raiding party.

…

I had to look twice. I couldn’t believe they were doing that in broad daylight and put it up on their socials [social media].

…

Interviewee (LegaSea): This isn’t a reflection of recreational fishers. This is poaching and the two are completely different. You know, you look at these guys they’re out there with the cavalier attitude, they’re pulling in semi-tame fish from the marine reserve. This is highly illegal.

Reporter: [Name] of Northland Dive tells Newshub she’s 100% sure that the video shows fishing at the Poor Knights and she feels sick about it.

[4]  Morrah later referred to the person who posted the videos, saying:

The videos were posted on Instagram by a Northland fishing and hunting enthusiast who has 33,000 followers. He’s since deleted the videos.

[5]  The item ended with the reporter stating:

Penalties for fishing in marine reserves range from being fined to having your boat seized, or even jail. Newshub sought comment from the man who posted the videos. He’s yet to respond.

The complaint

[6]  Samuel Bott complained to Warner Bros. Discovery (WBD), asking that the video and story be removed, and the families involved apologised to, saying it was an ‘ill informed story’ which ‘has now caused a lot of harm and put the people and the families involved in this video at risk’. They added:

• There had been multiple instances of death threats towards the people featured in the social media footage, as well as threats of harm to their families and children.
• Those people had since ‘come forth admitting to an error in judgement and apologies have been made, owning up and [accepting] the consequences for their actions’. Newshub should do the same and apologise for the ‘half informed’ story and ‘lazy reporting’ that has put innocent children in harm’s way.

Jurisdiction – Scope of complaint

[7]  This initial complaint to WBD was expressed in general terms and did not explicitly allege a breach of broadcasting standards. WBD nevertheless accepted it as a valid complaint and addressed the complaint under the accuracy standard. 

[8]  On referral to the Authority, the complainant nominated the accuracy, privacy and discrimination and denigration standards, adding comments responding to the broadcaster’s decision, including that WBD did ‘not [protect] the person correctly as they are well known due to their voice’, and the item was ‘deliberate race baiting’.

[9]  Under section 8(1B) of the Broadcasting Act 1989, the Authority is only able to consider complaints under the standard(s) raised in the original complaint to the broadcaster. The High Court has clarified that the Authority should not ‘enquire beyond the terms of complaint’ but that in certain circumstances:¹

…it is permissible [for the Authority] to fill gaps… or cross boundaries between Code standards… but only if these things can be done within the wording, reasonably interpreted, of the original complaint, and if a proper consideration of the complaint makes that approach reasonably necessary…

[10]  We agree with the broadcaster that the accuracy standard was implied by statements in the complaint that the story was ‘ill informed’, ‘half informed’, and that media should be ‘getting it right instead of click bait’.

[11]  Although it was not raised in the original complaint or at the referral stage, we consider the fairness standard is reasonably implied from the wording of the complaint, and necessary to properly address the complaint. The fairness standard protects individuals referred to in broadcasts from undue harm to their dignity or reputation. In our view this is most applicable to the complainant’s concerns about the story causing ‘a lot of harm’ to the people involved, and requests for the broadcaster to apologise to them.

[12]  We do not consider that either the privacy standard or the discrimination and denigration standard is reasonably implied in the wording of the original complaint. Nor do we think these standards are reasonably necessary to address the issues raised, given our view they are better addressed as a matter of fairness to the individual participants. This is because:

• The wording of the original complaint was focused on the ‘harm caused’ to the individuals and their families because of the ‘ill informed’ story; it did not suggest an alleged breach of privacy or disclosure of private information about the individuals featured. In any event, we do not consider there was a reasonable expectation of privacy in the material broadcast, given its distribution on social media to a significant audience and the response it attracted before the broadcast.
• The discrimination and denigration standard applies only to recognised sections of the community, not to individual participants. The concerns expressed in the original complaint focused on alleged harm to the individuals shown in the broadcast. This is appropriately addressed under the fairness standard.

[13]  For these reasons, our decision is limited to the accuracy and fairness standards.

The broadcaster’s response

[14]  WBD did not uphold the initial complaint under the accuracy standard, noting:

• The complaint did not specify any points of fact the complainant considered were incorrect in the broadcast.
• ‘Care was taken not to name any of the people involved and all of the men onboard the boat were blurred in the footage taken from the Instagram post.’
• In WBD’s view, ‘any harm which may have arisen is the result of the footage being posted on social media rather than from the Broadcast which did not identify any of the fisherman, particularly as one of the social media accounts that posted the footage has 33,000 followers’.

[15]  The Authority gave WBD an opportunity to provide submissions under the fairness standard. WBD submitted:

• The individuals would need to be identifiable for the fairness standard to apply. WBD maintained it ‘took appropriate care by blurring the participants to ensure they were not identified solely by the Broadcast’, although it ‘acknowledge[d]… the social media component of this story may have contributed to people recognising the participants’.
• ‘The source of the footage is relevant to a consideration under this standard. Newshub broke this story after it became aware of the incident via a social media post. The footage stemmed from social media and had been posted by one of the fishermen with a significant number of followers for his account.’
• ‘The reporter made numerous attempts to seek comment directly from the men involved and received no response on the day which was reported in the Broadcast. They were not identified explicitly by Newshub until they themselves acknowledged and apologised for their actions on social media to thousands of followers the next day.’
• ‘In taking steps to blur the participants involved in this incident for the first Broadcast, the Committee maintains that Newshub has treated the men fairly as these steps were taken to minimise any potential unwarranted damage or harm to them.’
• ‘We do not agree that Newshub treated the fishermen unfairly and recommend the complaint is not upheld under this standard.’

The standards

[16]  The accuracy standard² 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. The purpose of this standard is to protect the public from being significantly misinformed.³

[17]  The fairness standard⁴ states broadcasters should deal fairly with any individual or organisation taking part or referred to in a broadcast (it does not require that they were ‘identifiable’, as submitted by the broadcaster).

[18]  The standard protects the right of individuals and organisations taking part or referred to in broadcasts, to expect they will be dealt with justly and fairly and protected from unwarranted damage to their dignity or reputation. In assessing fairness, this right is weighed against the broadcaster’s right to freedom of expression and its role in disseminating information in the public interest.⁵

Our analysis

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

[20]  We have also considered the right to freedom of expression, which is our starting point. It is our role to weigh up the right to freedom of expression, including the value and public interest in the broadcast, against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where the resulting limit on the right to freedom of expression is reasonable and justified.⁶

Accuracy

[21]  The initial complaint was that the story was ‘ill informed’, ‘half informed’, ‘lazy reporting’ and the media should be ‘getting it right’. On referral, the complainant added that Newshub had ‘[jumped] on a story without all the facts, interviewing a random someone from a dive shop with no knowledge of how a mistake was made’, and threats to the people involved were ongoing ‘because of an inaccurate story’.

[22]  We find no breach of the accuracy standard, for the following reasons:

• The complainant has not identified any particular point of fact in the item considered to be inaccurate.
• The incident was clearly reported as ‘alleged’ illegal fishing that was ‘apparently’ or ‘appeared to be’ in the Poor Knights Islands, and as being investigated by the relevant authorities. This was accurate.
• The views of the interviewees were clearly their opinion and analysis of the social media video, which is not subject to the standard’s requirement for factual accuracy.⁷
• To the extent the referral could be read as suggesting the item was misleading by omission regarding the fishermen’s ‘mistake’, this was reported by Newshub the following evening once the person who posted the content had publicly responded and apologised, saying they did not know they were ‘out of bounds’.
• The reporter also contacted that person by text message on the morning of the 14 May broadcast inviting an interview, which in our view amounted to reasonable efforts to verify the situation and get comment in response. The reporter did not receive a response until one week after the broadcast.
• The alleged illegal fishing carried high public interest, noting the marine reserve had been protected since 1998, and had generated a strong public response prior to the broadcast.

[23]  Accordingly, we find no harm caused under the accuracy standard that outweighed the public interest or the broadcaster’s right to freedom of expression in choosing to report the allegations. We do not uphold this part of the complaint.

Fairness

[24]  A consideration of what is ‘fair’ and the threshold for finding unfairness takes into account a number of factors, including: the nature of the content; the source of the content; the nature of the individual involved; whether an ‘unfairly negative’ impression was created of them; whether any criticism was aimed at their professional or personal life; and the value and public significance of the broadcast.⁸

[25]  Applying these factors to this case, we do not consider the individuals featured in the item were treated unfairly by the broadcaster or that the broadcast caused potential harm to them that outweighed the public interest in the story:

• Social media influencing inherently involves creating and posting content intended to attract attention and public response – which may sometimes be negative. The threshold for finding unfairness to individuals engaging in this activity, is therefore higher than for someone who does not similarly seek public exposure.⁹
• The broadcaster has advised the videos which formed the basis for the item had been posted to a public social media profile with over 33,000 followers. Comments on the original post pointed out the potential illegality, for example, ‘bit of a poaching mission you reckon’, and ‘wait til those infringements get issued’. It was evident this video had already generated widespread public reaction before the broadcast – which was how the reporter became aware of the story, and resulted in it being taken down by the time the broadcast went to air.
• Importantly in this case, the broadcaster offered a fair and reasonable opportunity to comment for the broadcast, which was not responded to.¹⁰ WBD supplied a screenshot of a text message from the reporter to the person who posted the video, sent the morning of the broadcast. The reporter clearly identified himself and the subject matter, and indicated he was keen to do an interview with them and/or the skipper. The message said (10.47am, 14 May 2024):
  
  "Hi… Michael Morrah here from TV3’s Newshub. Just watched the video you’ve posted on Insta. Did you guys know you were fishing in a marine reserve at the Poor Knights? Keen to do an interview with you and or the skipper if available. Let me know. Many thanks, Michael."
• The reporter did not receive a response to that text until one week after the broadcast, on 21 May 2024. The broadcaster also noted that in the individual’s apology posted on 15 May, he ‘referred to the media as a “bunch of vultures” and explained that was “why I haven't responded to any of you yet”’ confirming he had chosen not to respond to media earlier. The broadcaster nevertheless took steps to minimise any further potential harm to those in the video by not naming them and blurring them in the video.
• Newshub then also ran a follow-up story reporting on the apology video, which fairly presented the fishermen’s position.
• The item and the alleged illegal fishing carried high public interest and freedom of expression value, demonstrated by the strong public response both on social media and in other coverage following the incident, as well as the investigation initiated by authorities.

[26]  In these circumstances, we do not uphold the complaint under the fairness standard. 

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  Samuel Bott’s complaint to WBD – 16 May 2024

2  WBD’s response to the complaint – 12 June 2024

3  Bott’s referral to the Authority, and comments responding to WBD – 12 June 2024

4  WBD’s comments on the referral and further submissions on implied standards – 22 July 2024

5  WBD’s response to Authority’s request for further information regarding opportunity to comment and social media activity prior to broadcast – 3 September 2024

¹ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
² Standard 6, Code of Broadcasting Standards in New Zealand 
³ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand, page 16
⁴ Standard 8, Code of Broadcasting Standards in New Zealand
⁵ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand, page 20
⁶ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁷ Guideline 6.1 
⁸ Guideline 8.1
⁹ Broadcasting Standards Authority “Complaints that are unlikely to succeed” <bsa.govt.nz> (see “Fairness applied to politicians/public figures”); See also: Watkins & Yardley and Radio New Zealand Ltd, Decision No. 2022-142; Owen & Healing and Television New Zealand Ltd, Decision No. 2023-037; Spring and Radio New Zealand Ltd, Decision No. 2023-079; and Chapple, Grieve & Shierlaw and Television New Zealand Ltd, Decision No. 2018-085
¹⁰ Guideline 8.4