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 comments by Mike Hosking regarding Director General of Health, Dr Ashley Bloomfield. Mr Hosking said Dr Bloomfield ‘lied to the Select Committee’ and was a ‘liar’. The Authority found the accuracy and fairness standards were not breached as the comments were distinguishable as the opinion of the presenter and they did not result in Dr Bloomfield being treated unfairly. Given Dr Bloomfield’s high profile position, he can reasonably expect to be the subject of robust scrutiny.

Not Upheld: Accuracy, Fairness  

The broadcast

[1]  During Mike Hosking Breakfast, broadcast at 7.26am on 9 August 2021, presenter Mike Hosking discussed statements made by the Director General of Health, Dr Ashley Bloomfield, to the Health Select Committee.

[2]  When Dr Bloomfield appeared before the Health Select Committee he advised that he had not discussed the case of a Fijian United Nations worker, who was diagnosed with Covid-19, with officials from the Ministry of Foreign Affairs and Trade. Following his appearance before the Select Committee, Dr Bloomfield corrected his earlier comments to the Select Committee and advised that he had previously exchanged text messages with Chris Seed, the Secretary of Foreign Affairs and Trade about the Fijian United Nations worker. Dr Bloomfield apologised for not providing this information to the Select Committee and explained that it was not his intention to mislead them.

[3]  During the broadcast Mr Hosking discussed Dr Bloomfield’s actions and made the following comments:

• ‘Ashley Bloomfield lied to the Select Committee.’
• ‘Are you honestly telling me he couldn’t remember something that happened a week ago, in one of the most contentious stories of the week? Sorry, he’s a liar.’

The complaint

[4]  Alan Brown submitted the broadcast breached the accuracy and fairness standards as:

• ‘While Mr Hosking had the right to provide his opinion and question aspects of Mr Bloomfield’s communications this right did not extend to calling him a liar’.
• Mr Hosking’s comments were presented as a statement of fact and were distinguishable from an opinion.
• The comments omitted ‘reference to Dr Bloomfield’s reported explanation and apology’ and therefore were misleading as ‘they did not present all known information’.
• No comment, clarification or input was sought from Dr Bloomfield.
• The comments were ‘an unproven allegation impugning Dr Bloomfield’s integrity’ which went ‘well beyond the trenchant criticism of public figures allowed under the fairness standard’.
• ‘Mr Hosking has shown a reckless disregard for the reputation of a public figure whose integrity is central to the important role he plays as Director General of Health’.
• ‘Calling someone a liar is personal criticism’.
• ·If a person referred to in a broadcast might be adversely affected the fairness standard requires the person to be given a fair and reasonable opportunity to comment. Dr Bloomfield was not given this opportunity.

The broadcaster’s response

[5]  NZME did not uphold the complaint for the following reasons:

• Mr Hosking’s comments were statements of opinion and therefore the accuracy standard does not apply.
• If the comments are found to be statements of fact to which the accuracy standard applies then the segment was not inaccurate or misleading as the host explained why he did not believe Dr Bloomfield’s explanation.
• The comments did not result in unfairness to Dr Bloomfield when weighed against the high value in terms of freedom of expression and the media’s role in ‘casting a critical eye on the Government’s decisions and holding the Government to account’.
• The comments and characterisation of Dr Bloomfield as a liar has not caused ‘unfair harm’ to Dr Bloomfield.
• Dr Bloomfield has appeared regularly on the programme and as such is well accustomed to Mr Hosking’s style and habit of engaging in robust criticism and commentary of public figures.

The standards

[6]  The accuracy standard¹ states broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead. The objective of this standard is to protect audiences from being significantly misinformed.² The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.³

[7]  The fairness standard⁴ states broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.⁵ The purpose of this standard is to protect the dignity and reputation of those featured or referred to in broadcasts.⁶

Our analysis

[8]  As part of our consideration of this complaint, we have listened to a recording of the broadcast and read the correspondence listed in the Appendix.

[9]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only intervene and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

Accuracy

[10]  The first issue we considered was whether the presenter’s statements were statements of fact to which the standard applies rather than an expression of comment or opinion. A fact is something which can be proven right or wrong, while an opinion is someone’s view. An opinion is contestable and others may hold a different view.⁷

[11]  The context in which the words are spoken will assist in determining whether a statement is one of fact or opinion. Having reviewed the presenter’s statements we are of the view that the statements were distinguishable as comment or opinion, taking into account the following:

• Mr Hosking is known for his adversarial presenting style and as someone who offers strong and at times controversial opinions.
• Mr Hosking provides no proof to support his conclusion. The broadcast reflects an effort to persuade listeners to his interpretation of the available facts (eg ‘he couldn’t remember something that happened a week ago, in one of the most contentious stories of the week’).
• The language used made it clear that the comments were his own and others may have different views (ie ‘Am I the only one going to call it?’ and ‘I call it a lie.’).

[12]  Accordingly we find no breach of the accuracy standard.

Fairness

[13]  Individuals and organisations have the right to expect they will be dealt with justly and fairly and protected from unwarranted damage.⁸ A consideration of what is fair depends on the nature of the programme and the context, as well as the nature of the individual or organisation referred to.⁹

[14]  We are satisfied that Dr Bloomfield was not treated unfairly, taking into account the following factors:

• Dr Bloomfield is a high profile public servant who can reasonably expect his actions to be scrutinised by the media.
• The comments related to Dr Bloomfield’s actions in relation to his role as Director General of Health.
• The reference to Dr Bloomfield having lied is unlikely to have resulted in viewers being left with an ‘unduly negative’ impression of him.
• The comments were a legitimate expression of free speech and concerned issues of public interest given their connection to the Government’s management of COVID-19.

[15]  Therefore 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
Acting Chair
17 November 2021

Appendix

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

1  Alan Brown’s complaint to NZME – 9 August 2021

2  NZME response to Mr Brown – 7 September 2021

3  Mr Brown’s referral to the BSA – 10 September 2021

4  NZME further comments – 1 October 2021

5  Mr Brown further comments – 12 October 2021

¹ Standard 9 of the Radio Code of Broadcasting Practice
² Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
³ Guideline 9a
⁴ Standard 11 of the Radio Code of Broadcasting Practice
⁵ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁶ As above
⁷ Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 64
⁸ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁹ As above