BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Sunday – item looked at the disputed territory of East Jerusalem – allegedly in breach of controversial issues, accuracy and fairness standards

Findings
Standard 4 (controversial issues – viewpoints) – item discussed a controversial issue of public importance – both sides given adequate opportunity to explain their point of view – broadcaster provided viewers with the significant viewpoints required – not upheld

Standard 5 (accuracy) – UNICEF representative’s comments were opinion – Mr Kuttner provided his opinion on evictions and explained why barriers and guards were needed – viewers would not have been misled – not upheld

Standard 6 (fairness) – Mr Kuttner given opportunity to provide his point of view on the issues discussed – dealt with fairly by broadcaster – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An item on Sunday called “Across the Divide”, broadcast on TV One at 7.30pm on Sunday 1 November 2009, looked at the disputed territory of East Jerusalem and the eviction of some Palestinian families from their homes by Israeli authorities.

[2]   The item included interviews with members of the Hanoun family, one of the evicted families; with Doug Higgins, a representative from UNICEF; and with Michael Kuttner, a New Zealand Jew living in Israel and a member of an organisation called Kiwis for Balanced Reporting in the Middle East (KBRM).

[3]   The item was in two segments and began with footage of Jana Hanoun’s family being evicted. Introducing the item itself, the presenter said:

Jana Hanoun is a teenager pretty much like any other: smart, driven, the world ahead of her. But Jana now finds herself the unwitting face of a nation’s despair – the Palestinian nation. She and her family have just been driven out of their home at gun point and on to the street. This is after they’ve lived there for half a century.

That very same day, a Jewish family moved in. They say they’ve got right and the law on their side. Both sides claim it’s their birthright.

[4]   Part of the presenter’s outline for the programme included him saying:

[5]   Now, you’ve lived in the house for 50 years. Then someone else comes along and claims it’s theirs. You’re on the street with the kids and the other crowd have moved in. No comeback, nothing.

[6]   Footage of a Palestinian family being evicted and a woman crying was shown, during which a voiceover by the presenter stated, “Just another day in the promised land”. One of the evictees, a teenage girl, was shown talking about her windows being broken by the authorities and alleged violence during the eviction. During this footage, a voiceover said, “It’s homeland, holy land, but whose land?”

[7]   Ms Hanoun was interviewed and described the events that took place and the violence she and her family encountered, including having her tooth broken. Referring to the Israeli authorities she stated, “They are trying to do ethnic cleansing in Jerusalem”.  

[8]   The reporter said that the Hanoun family lived in “East Jerusalem, disputed territory, originally Arab, seized by Israel, now the scene of Jewish settlement”. He outlined the history of the dispute, saying it ran back to the Arab-Israeli war of 1948 and that an Israeli court had found that the land was in Jewish hands back then and should be returned to Jewish ownership today.

[9]   Later in the programme, the Hanoun family offered their opinion on the disputed territory and said that the paperwork shown to the court by the Jewish family who took their house was false. Footage of one of the Jewish family members who moved into the Hanoun house was shown in which he said the court had found in their favour.

[10]   Doug Higgins, a New Zealand representative from UNICEF, was interviewed. He stated his opinion that the land was Palestinian territory and voiced concerns about Ms Hanoun and people like her in the region. He spoke in general terms about his views on the situation in Jerusalem. Mr Higgins said it was not a “level playing field”, citing water restrictions placed on Palestinian areas by Israeli authorities and refusal of building permits as examples.

[11]   The reporter introduced another evicted family and interviewed them about the circumstances surrounding their eviction and the destruction of their house by Israeli authorities.

[12]   The reporter stated the destruction of family homes by authorities was “far from an isolated incident” and that, “according to sources... an estimated 350 houses have been destroyed by the Israeli authorities within the West Bank and East Jerusalem this year alone.”

[13]   At the conclusion of the first segment, Michael Kuttner, a New Zealand Jew living in Israel, was introduced by the reporter who said that Mr Kuttner supported the demolitions. Mr Kuttner was shown saying that Palestinian families “want to use their children as human shields”.

[14]   The second segment began by showing Mr Kuttner’s car journey home along a highway screened by barbed wire and barriers. The reporter said that Mr Kuttner was a member of KBRM. Mr Kuttner stated, “This territory is not Arab territory, it is the land of Israel”. A voiceover then said, “It’s also the land of the Palestinian, or was”. The teenage evictee was shown saying, “They’re trying to do ethnic cleansing in Jerusalem”.

[15]   Mr Kuttner talked about the evictions and building demolitions saying that the Palestinians had unlawfully built homes without permits.

[16]   Mr Kuttner then discussed the working relationship between Jews and Arabs in the town of Efrat and why the two groups lived in different areas. Footage was shown of an armed security guard watching over Arab workers.

[17]   The item concluded with Mr Kuttner saying, “We have outlived every empire that has ever existed and I’m sure, given that track record, we’ll outlive the desire of the Arabs to eliminate us from this historic homeland of ours”.

Complaint

[18]   Rodney Brooks made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item was unbalanced, inaccurate and unfair to Mr Kuttner.

[19]   With respect to Standard 4 (controversial issues – viewpoints), Mr Brooks argued that the 16-minute item provided a one-sided and highly emotive view of evictions and demolitions of Palestinian homes in East Jerusalem and criticism of Israel. He contended that Arab Palestinian complaints were accepted and treated with sympathy, while answers to them were challenged or met with scepticism.

[20]   The complainant stated that 11 of the 16 minutes, including the first seven-and-a-half, were devoted to Arab complaints and accusations against Israel. He argued no effort had been made by the broadcaster to verify the Arab complaints and that there was a lack of rebuttal to balance the piece.

[21]   Turning to accuracy, Mr Brooks argued that the broadcaster had made “little effort to ensure the programme content was accurate” and that viewers had been misled, “either through out-and-out errors or the failure to provide relevant facts”.

[22]   The complainant considered that the eviction of the Hanoun family had been presented as part of a political move regarding Jewish settlement, when in fact it was a property dispute between two private parties that had gone as far as Israel’s Supreme Court. He argued that the Hanoun family had been given “at least six months to find alternative accommodation”, had been served eviction notices and had to be forcibly removed after refusing to leave.

[23]   Mr Brooks considered the demolition of the second family’s home was presented in the same way, “despite statistics that show the demolition rate is not substantially different in Arab and Jewish neighbourhoods”.

[24]   The complainant noted that the presenter had not refuted or challenged Ms Hanoun’s statement about “ethnic cleansing” and said that the Arab population had actually been growing in East Jerusalem since 1967.

[25]   Mr Brooks argued that the reporter’s statement that demolitions happen “hundreds of times a year” was inaccurate and that, as of June 2009, only 21 demolition orders had been issued for Palestinian East Jerusalem.

[26]   The complainant also argued that the reporter’s statement that East Jerusalem was originally Arab was false, as the “Jews were there long before the Arabs”. He also contended that the information regarding water restrictions was misleading, as they had been imposed because of drought and had affected Israeli communities as well.

[27]   Mr Brooks contended that the footage of the evicted families shown during an interview with Mr Kuttner gave viewers a misleading impression that he was responding to those specific claims, when in fact he had no direct knowledge of those claims.

[28]   The complainant considered that the footage of the concrete barriers and armed security guards watching Arab workers around Efrat were shown “as if they were examples of Israeli oppression of Arabs”. He considered the item had given a complete misrepresentation of the attitude of Israelis toward Arabs, and said that the Efrat community had provided funding for education and a medical centre.

[29]   With respect to fairness, the complainant stated that, after the broadcaster had informed KBRM that it was doing an item on “Kiwi settlers in modern day Israel” and asked it to point it in the direction of such families, KBRM had given Mr Kuttner’s details to TVNZ. He stated that, according to Mr Kuttner, “It was never made clear to [him] that the brief had changed from New Zealanders in Israel to evictions”.

[30]   Mr Brooks argued that TVNZ had misrepresented the use of the interview with Mr Kuttner, who thought the item was about New Zealanders living in Israel, and that he was not informed that the interview was going to represent a response to the accusations of the Hanoun family. He contended that the item included a “heavily edited and distorted version” of the interview, and that the broadcaster had treated Mr Kuttner unfairly.

Standards

[31]   TVNZ assessed the complaint under Standards 4, 5 and 6 and guidelines 4a, 4b, 5a 6a, 6b and 6c of the Free-to-Air Television Code of Broadcasting Practice. These provide:

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Guidelines

4a   No set formula can be advanced for the allocation of time to interested parties on controversial issues of public importance. Significant viewpoints should be presented fairly in the context of the programme. This can only be done by judging each case on its merits.

4b   The assessment of whether a reasonable range of views has been presented takes account of some or all of the following:

• the programme introduction;
• whether the programme approaches a topic from a particular perspective (e.g. authorial documentaries, public access and advocacy programmes;
• whether viewers could reasonably be expected to be aware of views expressed in other coverage.

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.

Guideline 5a

The accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Guidelines

6a   A consideration of what is fair will depend upon the genre of the programme (e.g. talk/talk back radio, or factual, dramatic, comedic and satirical programmes).

6b   Broadcasters should exercise care in editing programme material to ensure that the extracts used are not a distortion of the original event or the overall views expressed.

6c   Except as justified in the public interest:

• Contributors and participants should be informed of the nature of their participation
• Programme makers should not obtain information or gather pictures through misrepresentation;
• Broadcasters should avoid causing unwarranted distress to surviving family members by showing footage of bodies or human remains.

Broadcaster's Response to the Complainant

[32]   With respect to Standard 4, TVNZ argued that, while the evictions and the dispute over territory in East Jerusalem were controversial – particularly for local residents, it was not a matter of public importance in New Zealand as intended by the standard.

[33]   The broadcaster considered that, even if the issue was one to which the standard applied, “balance was achieved in the item”. It contended that significant viewpoints had been sought and presented and noted that there was no “stopwatch method for determining if appropriate balance had been achieved”.

[34]   TVNZ stated that the item had not been set up as a “definitive all encompassing treatise on what is a very big and complex issue”. It stated that the Hanoun family and their plight gave a personal focus for an item about issues facing people living in occupied territories. It noted that the reporter had received brief comment from one of the members of the Jewish family who had moved into the Hanoun’s old home and that he had also spoken with two “Kiwis living in the area to gain their perspective on the issue”.

[35]   The broadcaster stated that “the questions to all parties interviewed were matter-of-fact and were attempting to address the issues at hand”. It argued that the story “attempted to give a more personalised account of an issue well covered by international media” following pressure by the Obama administration on Israel to halt settlements in the occupied territories.

[36]   TVNZ disagreed that the tone of the item was one of disdain for Israeli responses and declined to uphold the complaint that Standard 4 had been breached.

[37]   Turing to Standard 5 (accuracy), the broadcaster argued that the evictions were “not solely a legal matter between two parties” and that there were Jewish building projects planned for the area. It contended that the personal issues shown in the broadcast mirrored the political issues facing the area and that the presentation of the Hanoun’s eviction and the other family’s home demolition had not misled viewers.

[38]   With respect to Ms Hanoun’s statement about “ethnic cleansing”, TVNZ considered that it was clearly her opinion and was permitted under the standard. It stated that the representative from the Jewish family who moved into the house and Mr Kuttner were given the opportunity to “voice their opinions about the issue of the eviction”. It declined to uphold this aspect of the accuracy complaint.

[39]   Dealing with the reporter’s statement about the number of Palestinian homes being demolished, the broadcaster argued that, “according to the Israeli Committee Against House Demolitions (ICAHD), Israeli authorities demolished nearly ninety homes in East Jerusalem in 2008”. It said, “Adding in the total number of Palestinian houses demolished last year in Area C of the occupied territories, the figure rises to 377 Palestinian homes demolished for 2008”. It declined to uphold this aspect of the accuracy complaint.

[40]   With respect to the complainant’s contention that the reporter had inaccurately said that “East Jerusalem was originally Arab”, TVNZ noted that the reporter actually said, “The Hanouns live in East Jerusalem, disputed territory, originally Arab, seized by Israel, now the scene of Jewish settlement”. It contended that the comment was a quick summary of the immediate history of the area, which was framed in terms of a dispute over land and which gave the perspective of people from both sides. It declined to uphold the complaint that the reporter’s statement was inaccurate.

[41]   Turning to the comments about water shortages, the broadcaster noted that the comments were made by Mr Higgins and considered that it was reasonable to expect he would have an understanding of the issue. It also pointed out that the item had noted that the area was particularly dry. It declined to uphold this aspect of the accuracy complaint.

[42]   Looking at Mr Brooks’ contention that footage of evictions shown during Mr Kuttner’s interview gave a false impression that he was responding specifically to them, TVNZ said that Mr Kuttner was told what the focus of the story was going to be before filming. It maintained that he had been made aware that he would be interviewed about the politics of the region and was advised that this would include questions about the history of the disputed land in Jerusalem and the West Bank.

[43]   The broadcaster considered Mr Kuttner to be a spokesperson for KBRM and, as such, “was well apprised of the issues”. It declined to uphold the complaint that the footage shown during Mr Kuttner’s interview gave viewers a misleading impression.

[44]   With respect to the footage of protective barriers and security guards in Efrat, TVNZ stated that Mr Kuttner had discussed the reasons for them in his interview. It argued that it was not necessary to discuss the provision of educational and medical services, as the Israelis were required to provide such funding as an occupying power under the Geneva Convention. It declined to uphold the complaint that the footage was misleading.

[45]   Considering Standard 6 (fairness), the broadcaster argued that it did “acquaint Mr Kuttner with the areas they would cover before the interview”. It said, however, that “the programme must reserve the right not to reveal all other elements of a story to interview subjects, where there is a concern that this may compromise their ability to work independently”.

[46]   TVNZ contended that Israeli authorities questioned all reporters extensively about the material gathered in interviews and other footage, and that it could not reveal all angles of an item in case “government agencies attempt to prevent the journalists from publishing”.

[47]   The broadcaster stated that the item was originally going to be about New Zealanders’ day-to-day lives in Israel, but that the story had evolved during ensuing conversations. It maintained that Mr Kuttner was made aware that “anyone they interviewed would be asked about the politics in the region and that this would include questions about the history of the dispute over land in Jerusalem and the West Bank”.

[48]   TVNZ argued that Sunday had informed Mr Kuttner that they had been alerted to the eviction and demolition situations and that they would be using the Hanoun house as an example. It said that it had “explained to him that they were interested in getting his views and response on these issues, in his capacity as a spokesperson for KBRM”. It contended that Mr Kuttner had not objected to any of the reporter’s questions and was able to present KBRM’s point of view. It declined to uphold the fairness complaint.

Referral to the Authority

[49]   Dissatisfied with the broadcaster’s response, Mr Brooks referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[50]   Mr Brooks reiterated his arguments that the item was unbalanced, inaccurate and unfair to Mr Kuttner. He also supplied an email in which Mr Kuttner stated that, while he was a member of KBRM, he was neither a spokesperson for the organisation nor well-versed with the media. Mr Brooks stated that Mr Kuttner had been “misled as to the purpose of the documentary”.

Authority's Determination

[51]   The members of the Authority have viewed 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.

Standard 4 (controversial issues – viewpoints)

[52]   Standard 4 states that when discussing controversial issues of public importance in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[53]   The Authority has typically defined a controversial issue of public importance as something that would have a “significant potential impact on, or be of concern to, members of the New Zealand public” (see Powell and CanWest TVWorks Ltd¹).

[54]   The item discussed the eviction of Palestinian families from their homes by Israeli authorities in the territory of East Jerusalem. In our view, this topic constitutes a controversial issue of public importance to which the standard applies, as it would be of concern and importance to members of the New Zealand public.

[55]   Mr Brooks argued that the 16-minute programme provided a one-sided and highly emotive view of evictions and demolitions of Palestinian homes in East Jerusalem and criticism of Israel. The complainant stated that 11 of the 16 minutes, including the first seven-and-a-half, were devoted to Arab complaints and accusations against Israel.

[56]   We point out that the Authority has said in previous decisions (for example The New Zealand Grocery Council Inc and TVWorks Ltd²) that balance is not achieved by the “stopwatch”, meaning that the time given to each competing party does not have to be mathematically balanced.

[57]   In our view, the programme provided viewers with the required significant viewpoints on the issues under discussion. We note that the first half of the item focused on the anti-eviction perspective of two Palestinian families and the UNICEF representative, and that the second half was dominated by Mr Kuttner, who provided the pro-Israeli viewpoint in relation to the evictions and demolitions.

[58]   We consider that each side was given an adequate opportunity to explain their differing perspectives, and that viewers would have come away with an understanding that the issues were complex and that there were competing perspectives.

[59]   Accordingly, we decline to uphold the complaint that the programme breached Standard 4.

Standard 5 (accuracy)

[60]   Standard 5 states that 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.

[61]   The complainant contended that the eviction of the Hanoun family had been presented as part of a political move regarding Jewish settlement, when in fact it was a property dispute between two private parties.

[62]   We note that the court case involving the Hanoun family was referred to on several occasions during the item. This included the Hanoun family’s claim that the documentation provided to the court was false, that Jana Hanoun would fight the case when she got her law degree, and the Jewish family’s response that the court had found in their favour. In our view, the item contained sufficient references for viewers to reach the conclusion that the Hanoun family’s eviction related to a property dispute which had been through the court system, as opposed to a “political move” as argued by Mr Brooks. In these circumstances, we decline to uphold this aspect of the accuracy complaint.

[63]   With respect to Ms Hanoun’s remark that “They’re trying to do ethnic cleansing in Jerusalem”, we find that the comment was clearly her opinion rather than a statement of fact to which the accuracy standard applied (guideline 5a).

[64]   Turning to the reporter’s comment, “...an estimated 350 houses have been destroyed by the Israeli authorities within the West Bank and East Jerusalem this year alone”, we note that the broadcaster provided figures to support the statement. We consider that the broadcaster had an evidential basis for the assertion, which was only an estimate, and therefore made reasonable efforts to ensure that the information was correct. We accordingly decline to uphold this aspect of the accuracy complaint.

[65]   Looking at the reporter’s statement that, “The Hanouns live in East Jerusalem, disputed territory, originally Arab, seized by Israel, now the scene of Jewish settlement”, we consider that the comment was a quick summation of a complex history that was used to set the context and frame the story. We also note that Mr Kuttner was later shown saying, “We have outlived every empire that has ever existed and I’m sure, given that track record, we’ll outlive the desire of the Arabs to eliminate us from this historic homeland of ours”. It is axiomatic that the ownership of the territory is disputed. This is the crux of the controversy surrounding the area. The reporter’s remark was a quick contextual summary of a complex situation, and we find that it was not misleading or inaccurate. In these circumstances, we decline to uphold this aspect of the accuracy complaint.

[66]   Dealing with Mr Brooks’ contention that the information regarding water restrictions was misleading, we note that the topic arose while Mr Higgins was presenting his views on why he believed there was an uneven playing field for Palestinians. As the comments were clearly Mr Higgins’ analysis of the situation, rather than an unqualified statement of fact, the accuracy standard does not apply. We therefore decline to uphold this part of the Standard 5 complaint.

[67]   Mr Brooks contended that the footage of the evicted families shown during an interview with Mr Kuttner gave viewers a misleading impression that he was responding to those specific claims, when in fact he had no direct knowledge of those claims. We note that it would have been clear to viewers that Mr Kuttner was talking about evictions in general when the footage was shown, and we consider that the images were used as an example to demonstrate what was being discussed. We do not consider that this was misleading and we accordingly decline to uphold this aspect of the accuracy complaint.

[68]   With respect to Mr Brooks’ concerns about the footage of the concrete barriers and armed security guards, we note that Mr Kuttner was shown explaining why the barriers had been erected and why there was an armed guard watching over Israeli and Palestinian workers in Efrat. We find that the item provided viewers with the reasons for the barriers and the guard, and we do not consider that they would have been misled by the footage.

[69]   Accordingly, we decline to uphold the complaint that the programme breached Standard 5.

Standard 6 (fairness)

[70]   Standard 6 requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme.

[71]   In our view, while Mr Kuttner may not initially have been aware of the item’s main focus, he was given an opportunity to talk about the situation in Jerusalem and to express his point of view on a number of issues including the evictions and demolitions. Further, as the day-long interview progressed and Mr Kuttner answered numerous questions without objection, it would have become obvious to him that the issue of evictions was going to be addressed in the item and that his comments on them were likely to be included.

[72]   We also note that Mr Kuttner must have been told about the Hanoun family’s accusations, because it was clear that he already knew about their situation, as evidenced by him wishing Ms Hanoun the best of luck in her intention to undertake legal study in an effort to get the family’s house back.

[73]   Overall, we consider that Mr Kuttner was dealt with fairly by the broadcaster and we therefore decline to uphold the complaint that the programme breached Standard 6.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
1 June 2010

Appendix

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

1.         Rodney Brooks’ formal complaint – 24 November 2009

2.         TVNZ’s response to the complaint – 9 February 2010

3.         Mr Brooks’ referral to the Authority – 5 March 2010

4.         TVNZ’s response to the Authority – 13 April 2010

¹Decision No. 2005-125

²Decision No. 2007-126