BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Summary

A proposed compromise about the rates to be paid by some ratepayers, which was to

be considered at a meeting of the Waitakere City Council that evening, was discussed

in an item on ATV news broadcast between 5.30–6.00pm on Wednesday 17 July

1996. The discussion involved a representative in the studio from Sunnyvale

Ratepayers (Ms Brady) and, by telephone, Mr Lovelock of Ratewatch, the

organisation which had successfully challenged the Council's rating process in the

High Court.

Mr Lovelock, Chair of Ratewatch, complained to Horizon Pacific Television Ltd, the

broadcaster, that the item was unbalanced. He referred in some detail to the

discussions he had held with various people at ATV before the broadcast and also

objected, first, to the presenter's implication at one point that he was not telling the

truth, and secondly, the presenter's statement that he had "threatened" the

programme's producer.

Pointing out that Mr Lovelock had participated in the studio discussion, and

maintaining that the other comments were a fair reflection of the afternoon's events,

HPTV declined to uphold the complaint.

Dissatisfied with that decision, Mr Lovelock of Ratewatch referred the complaint to

the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the balance aspect of the

complaint and declines to determine the fairness aspect.

Decision

The members of the Authority have viewed the item complained about and have read

the correspondence (summarised in the Appendix). As is its practice, the Authority

determines the complaint without a formal hearing.

Ratewatch, a group of Waitakere City ratepayers, was successful in its High Court

challenge to the City's process by which some rates were assessed. Rather than

appeal, it appears that the group and the City negotiated a compromise which was to

be put before the Council on 17 July 1996 for approval. As part of the agreement, the

group agreed to withhold any protest action against the City.

ATV, the regional channel based in Auckland, decided to deal with Waitakere City

rates issue and the challenge from Ratewatch in its news on 17 July from 5.30 -

6.00pm. In the early afternoon, it approached Mr Jack Lovelock, the Chair of

Ratewatch, who was reluctant to appear at that stage in view of the group's agreement

with the City. Mr Lovelock and HPTV have both provided the Authority with

considerable information about their subsequent interaction that afternoon and Mr

Lovelock has referred to some of his conversations with other involved people, in

particular, with Cr Janet Clews who, seemingly, had earlier that day agreed to appear

on the ATV item.

However, following telephone conversations with Mr Lovelock, she apparently

proposed that a spokesperson for Sunnyvale Residents and Ratepayers, Ms Brenda

Brady, appear in her place. On being informed of Ms Brady's appearance, Mr

Lovelock advised ATV that not only did he now want to appear, but that the item

would be unbalanced should he be excluded and that he would formally complain to

this effect.

Further details of the relevant events during the afternoon of 17 July are recorded in

the Appendix.

When the live broadcast went to air between 5.00–6.00pm, Ms Brady was in the

studio while Mr Lovelock participated by telephone, an arrangement which he and

ATV had necessarily agreed on late in the preparation of the item. Upon introducing

Mr Lovelock, the presenter commented that there had been some "toing and froing" as

Mr Lovelock had, first, not wanted to appear, and later, demanded to appear. The

presenter noted that a compromise had been reached. Mr Lovelock's attitude towards

participating was the subject of a question towards the end of the item when he was

asked why he had not wanted the issue to be discussed on television, and why he had

persuaded Cr Clews not to appear. After explaining that the rates matter was an

internal Council dispute, Mr Lovelock retorted that his request to participate had been

declined. The presenter replied: "I'm sorry, you know that not to be true" and, when

Mr Lovelock objected, added: "Making threats to the producer is not the way to go

about it".

In his complaint to HPTV, Mr Lovelock maintained that the broadcast breached the

requirement for balance in s.4(1)(d) of the Broadcasting Act 1989.

Following HPTV's initial brief decision not to uphold the complaint, Mr Lovelock

referred it to the Authority. He listed the following aspects in the referral.

• ATV refused to allow either myself or a fellow committee member to appear live

           to balance the views being promoted by a publicly acknowledged opponent.

• The accusation that I was telling untruths, made live on ATV.
  
  
• The statement by the General Manager that I coerced an experienced politician

          not to appear on the programme.

• The statement, made live on TV, that I threatened the producer.

• The written statement that I attempted to "dictate terms to the producer".

At that stage, ATV's Complaints Committee considered the complaint and it listed

the following matters as relevant to the broadcasting standards complaint:

1. That Mr Lovelock or a member of his committee was not given the opportunity

to appear live.

2. The contention by Mr Lovelock that he had been accused of "telling untruths"

live on air.

3. Mr Lovelock's objection to a statement on-air that he had "threatened" the

producer.

On the basis that Mr Lovelock had sought to "manage" the events on the day, and that

after telling the producer at 3.45pm he did not want to appear, had changed his mind

at 4.45pm, HPTV did not uphold the complaint. HPTV concluded by stating that

because of an oversight, it had not dealt with Mr Lovelock's initial letter

appropriately as a formal complaint.

The Authority would like to address this point before considering the substance of the

complaint. The Authority expects broadcasters to adhere to the complaints process

as set out in the legislation. Mr Lovelock in his letter to ATV dated 21 August made

it absolutely clear that his complaint was a formal one. However, it was dismissed by

ATV's General Manager in a letter which can only be described as cavalier and

inadequate, there being no reference either to the standards under which the complaint

was assessed or to the complainant's right of referral as required by s.7(1) of the Act.

Fortunately, Mr Lovelock was aware of his referral rights and HPTV, when advised of

the referral, assessed the complaint competently. However, its report again omitted to

record the standards under which the complaint was assessed.

For this reason, the Authority's first task in its assessment of the complaint is to

record the standards under which it has considered the complaint. Taking into account

both the broadcast and matters raised, the first relevant standard is that nominated by

Mr Lovelock. Section 4(1)(d) of the Broadcasting Act requires broadcasters to

maintain standards consistent with:

(d) 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.

The other relevant standard is G4 of the Television code of Broadcasting Practice

which requires broadcasters:

G4  To deal justly and fairly with any person taking part or referred to in any

programme.

Dealing first with the matter of balance, the Authority agrees with HPTV that, putting

aside the exchange about participation, the on-air discussion on the question of rates

between Ms Brady and Mr Lovelock met the requirements for balance in s.4(1)(d).

The dealing fairly issue is considerably more difficult to resolve. On the one hand, the

Authority is aware that putting together an item can sometimes be difficult. However,

there is usually no necessity for the broadcaster to report those difficulties on-air

although, as telephone participation is a little unusual, a brief explanation for its use on

this occasion would probably have been expected.

On the other hand, the Authority acknowledges that some participants can make

programme production difficult when agreeing to participate in an item, and then

changing their minds or seeking conditions.

The majority of the Authority does not intend to reach a decision on the causes or

merits of the disagreement between Mr Lovelock and ATV. It intends to confine itself

to the broadcast and, to draw an analogy, the reference to the "domestic" dispute

between Mr Lovelock and ATV contained in the broadcast.

The extent of the exchanges between the parties during the afternoon of 17 July

suggests to the majority that there is some right, and, conversely, probably some

wrong, on both sides. It is not prepared on the information before it to decide the

merits of the pre-broadcast discussion. Therefore, it is not prepared to decide whether

the comments in the broadcast item, which referred to those exchanges, breached

standard G4. Because it is unable to decide authoritatively whether "airing" the

"domestic" was unfair to Ratewatch's Mr Lovelock, and therefore a standards breach

rather than a lapse in professionalism, the majority declines to determine that aspect

of the complaint.

The minority agrees, despite having read a copious amount of material concerning the

details of the way the item was planned and compiled, that it is not the role of the

Authority to reach a decision on the causes of the disagreement between Mr Lovelock

and ATV. It believes that such detail is outside the realm of the item and that, by

introducing it into an item which had hitherto stood strongly and without need of

further explanation, the presenter acted unfairly towards Mr Lovelock. The minority

would uphold the complaint that the broadcast breached standard G4.

For the above reasons, the Authority declines to uphold the balance aspect of

the complaint and, under s.11(b) of the Act, a majority declines in all the

circumstances to determine the fairness aspect.

Signed for and on behalf of the Authority

Judith Potter
Chairperson
14 November 1996

Appendix

Ratewatch's Complaint to Horizon Pacific Television Ltd - 26 July 1996

Jack Lovelock of Titirangi, Chairman of Ratewatch, complained to Horizon Pacific

Television Ltd about a news item broadcast on ATV between 5.30 - 6.00pm on

Wednesday 17 July 1996.

Mr Lovelock explained in some detail the events leading up to the broadcast.

Ratewatch, he wrote, had successfully challenged an aspect of Waitakere City's rating

process in the High Court. Rather than challenge the ruling, he continued, the City had

reached a settlement with Ratewatch which it intended to put before the City Council

for approval at a meeting on 17 July. In view of the proposed settlement, Mr

Lovelock said that Ratewatch had agreed with the City to adopt a low public profile

and to cancel a protest it had planned for the meeting and, he reported:

We also had assurances from the CEO that key councillors, such as Janet Clews,

who has vigorously opposed Ratewatch for years, were prepared to support the

settlement package. This later proved to be false information.

Recording some critical comments about the Council made by the High Court Judge,

Mr Lovelock noted that Sunnyvale Ratepayers - represented by Brenda Brady -

publicly opposed Ratewatch.

As for the events on 17 July, Mr Lovelock reported:

When Jessica [of ATV] spoke to me, about 2.00pm Wednesday on appearing on

ATV, I simply could not believe that Councillor Clews planned to appear.

Jessica had also mentioned that Brenda Brady had set up the TV interview,

which seemed most strange considering the CEO convinced us that Clews was

now on our side on this issue, yet she was clearly working with Brenda on the

planned TV appearance??

Mr Lovelock stated that a Councillor was unable to comment publicly on an issue on

the Council's agenda before it is debated and, accordingly, he rang Cr Clews to point

out this requirement to her and she had promised that she would not appear.

Nevertheless, after checking, he was again told by ATV that Cr Clews continued to

plan to appear so he telephoned her again. She again agreed not to appear, but

suggested Ms Brady might be prepared to do so. Cr Clews said that she would advise

him if Ms Brady agreed to appear but, as he heard nothing further from her, he had

decided to check with ATV which confirmed that Ms Brady would be agreeing. He

added in his letter HPTV:

My repeated request to you, to balance the debate, was declined.

Mr Lovelock also pointed out that Ms Brady had headed a deputation to the Council

and organised her supporters to oppose the settlement on 17 July after it was too late

for him to respond.

Observing explicitly that HPTV could reach its own conclusions on the reasons why

Cr Clews and Ms Brady had approached ATV, Mr Lovelock opined:

We believe we were set up.

Mr Lovelock did not receive a reply to this letter and, on 21 August, he wrote again

stating that he had been expecting an apology as, on the news item on 17 July, he had

been accused of threatening a producer and telling untruths. He recalled the events on

the afternoon of the 17th.

From when I was aware that an acknowledged opponent of our group was to be

interviewed on your news programme I did everything possible to obtain the

right to appear on that same programme. I could not believe that any TV

channel would refuse the opportunity to present a balanced view. As I

understand it, the reason that Brenda Brady had made a condition that as she

was not an expert on rating issues, she refused to appear on the programme if I

was also to be present. I asked at least a half dozen times to be included in the

interview, and finally in frustration at the repeated refusal of your producer, I

made it clear that I would lodge a complaint with the TV Complaints

Committee. Still you refused to allow me to appear, my final remark being "It's

your decision, I hope you can live with it!"

After discussing the matter with another member of Ratewatch who was prepared to

participate in a studio discussion, Mr Lovelock said, nevertheless, that the offer was

"repeatedly refused".

Moreover, Mr Lovelock advised, Cr Clews had later made political capital when she

claimed that he had declined to appear on television to debate the issue with her.

On the basis that the circumstances described at least a serious breach of ethics, Mr

Lovelock sought an apology and a correction which stated that he had not threatened

the producer, that he had not told any untruths, and that he had wanted to appear on

the television item. An apology approved by his solicitor within seven days, he

concluded, would bring the matter to an end.

In another letter to HPTV dated 21 August, Mr Lovelock stated that his two letters

were to be treated as a formal complaint alleging a breach of the balance requirement in

s.4(1)(d) of the Broadcasting Act 1989.

HPTV's Response to the Formal Complaint - 27 August 1996

Reporting that Mr Lovelock's initial refusal to appear on the news programme had

created difficulty for its news staff, HPTV wrote:

We take some exception to attempts by members of the public to shut down

debate on matters of public interest on our news and current affairs programmes,

by either their refusal to appear, and their attempts to coerce others not to

appear.

HPTV objected to what it saw as Mr Lovelock's attempts to dictate terms and

pointed out that he had, in fact, participated in the programme via the telephone. It

believed that balance was achieved

Ratewatch's Complaint to the Broadcasting Standards Authority - 30 August

1996

Describing HPTV's reply as unacceptable, Mr Lovelock of Ratewatch referred the

complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting

Act 1989.

Mr Lovelock recalled that there had been an agreement between Ratewatch and the

Waitakere City CEO for Ratewatch to maintain a low profile while the negotiations

were in progress. Because of that, he had hesitated when asked at about 2.00pm to

take part in a televised discussion that evening with Cr Janet Clews. As for the

broadcast itself, he wrote:

The statements made live on TV were obnoxious, insulting and grossly unfair. I

did not threaten the producer but made it clear that if she persisted in refusing

me, or another committee member, the opportunity to present a balanced view,

then I was left with no alternative but to complain to the TV Complaints

Authority. This statement was made only after repeated requests to the

producer, had been declined. The very fact that I was obliged to make these

statements, and that they are acknowledged by ATV, is clear evidence that I was

being refused time on TV.

He considered that the broadcaster had taken the action either because it was piqued

that Cr Clews had changed her mind about appearing or it had agreed with Ms Brady

to give her an exclusive interview.

It was nonsense, he wrote, that his organisation was able to influence Cr Clews - an

experienced local body politician. She had been reminded of her responsibilities and

she had responded by advancing Ms Brady for the interview. During the broadcast,

he recalled, he had stated, that he had been trying to appear on the programme (after

he became aware of Ms Brady's appearance) but had been called a liar. He listed the

following specific aspects of his complaint.

· ATV refused to allow either myself or a fellow committee member to appear

live to balance the views being promoted by a publicly acknowledged

opponent.

· The accusation that I was telling untruths, made live on ATV.

· The statement by the General Manager that I coerced an experienced

politician not to appear on the programme

· The statement, made live on TV, that I threatened the producer

· The written statement that I attempted to "dictate terms to the producer".

As he had first heard of the proposed interview at 2.00pm, he found it difficult to

accept that his initial refusal caused difficulty, and furthermore, his request to appear

an hour later should have overcome the problem. Mr Lovelock concluded:

This unfortunate incident has occurred because I went out of my way to protect

the professional integrity of Cr Clews. For my efforts I have had my integrity

questioned and now have attempts by Brenda Brady, to display the video tape

at a public meeting, to portray the chairman of Ratewatch as a bullying, and

devious character. I am now forced to attempt to reduce the damage as best I

can.

HPTV's Response to the Authority - 17 September 1996

HPTV began by outlining what it regarded as the relevant parts of the complaint:

1. That Mr Lovelock or a member of his committee were not given the

opportunity to appear live.

2. The contention by Mr Lovelock that he had been accused of "telling

untruths" live on air.

3. Mr Lovelock's objection to a statement on-air that he had "threatened" the

producer.

It then dealt with each aspect.

The first aspect was dismissed because, HPTV argued, Mr Lovelock participated by

telephone during the item and was given adequate air-time to express his views.

With regard to the second point, HPTV said it was concerned with Mr Lovelock's

closing comment that "he had tried extremely hard" to be part of the discussion to

which the presenter had responded by saying that Mr Lovelock knew that was not

true.

HPTV provided the programme producer's report recording the events which had

occurred during the afternoon. In summary, HPTV said it disclosed:

Mr Lovelock had refused to appear on the programme, and had persuaded

another local politician Janet Clews, not to appear. Late in the day (45 minutes

before on-air) Mr Lovelock had demanded to be on the programme after hearing

that an opponent Brenda Brady, was to appear live to discuss the issue. This

sequence of events indicates the misleading nature of Mr Lovelock's comment

that he had tried extremely hard to be on the channel, and therefore the

Committee felt that [presenter] Mr Dower's comment that he (Mr Lovelock)

knew the statement to be untrue, was a fair and reasonable comment.

It declined to uphold that aspect.

Turning to the third point, HPTV expressed the opinion that Mr Lovelock "had

attempted to manage events on the afternoon in question". It listed the events noted

by Mr Lovelock in his complaint and added that he was "rude and abusive" to the

producer in his telephone call at 4.45pm. It argued that the "making threats to the

producer" observation was a fair reflection of Mr Lovelock's behaviour and the

presenter's statement was technically correct. It added:

Mr Lovelock's inability to provide a reason to the producer on why he could

appear with Brenda Brady, but not with Janet Clews, was considered significant

by the Committee.

TV3 also advised the Authority:

Mr Lovelock's statement to the Broadcasting Standards Authority that he first

heard of the interview at 2pm and had agreed to appear an hour later is

inaccurate and misleading. He told the ATV producer at 3.45pm that he did not

want to appear, reversing this decision at 4.45pm - two hours and forty-five

minutes after 2pm not an hour as Mr Lovelock claims.

Ratewatch's Final Comment - 24 September 1996

Stating that he considered that HPTV's report did not excuse its actions, Ratewatch's

Mr Lovelock replied:

The essence of my complaint is that at 2.00pm on the day of the interview I was

invited by ATV to appear live on the early news programme of the same day, to

balance a pre-arranged interview (without my knowledge) with Cr Clews an

acknowledged opponent of Ratewatch. By approx. 4.00pm I confirm that I

wish to take up the offer but by then ATV refuse to allow me to appear. I

repeatedly ask for permission, but am repeatedly refused. Neither party was

angry, rude or abrasive.

The broadcaster, he continued, also refused at about 5.00pm for another member of

the Ratewatch committee to appear and, he concluded on the first point:

We therefore appear to have ended up with ATV agreeing to interview a person

who had laid down conditions that she would only appear on the programme if

she did not have to answer to any knowledgeable spokesperson who may

oppose her very lightweight understanding of the issues. Surely a breach of TV

ethics standards?

Dealing with the next point made by HPTV, Mr Lovelock began by describing the

sequence posited by HPTV as incorrect. At about 2.00pm, he recalled, he was invited

to balance a planned interview with Cr Clews. Although surprised that Cr Clews was

to appear, he did not decline the interview. He finally spoke to Cr Clews at about

3.15 and he said it was "absolutely ludicrous" to suggest he was able to bully her.

Having pointed out the issues to her, he said, Cr Clews agreed not to appear and he

had telephoned HPTV. HPTV told him that Cr Clews still intended to appear so he

had spoken to her again:

I repeated my earlier comments to her and she again agreed that it was not

appropriate for her to appear. Then, totally out of the blue, she said that she

would ask Brenda Brady to appear in her place. This was the first time that

Brenda's name had surfaced, although it is now apparent that she had in fact

orchestrated the entire sequence of events. I made it very clear to Clews that if

she encouraged Brenda to appear then I would be placed in an impossible

position and would have no alternative but to also appear to balance the debate.

She replied that: "She had no control over what Brenda could do as a private

individual".

Mr Lovelock said that the following occurred:

Some ten minutes later I called ATV to have it confirmed that Brenda was to

appear, and I immediately attempted to take up their offer to also appear. This

was no refused. No explanation was given for the change of mind. I reminded

ATV of their ethical responsibilities to present balanced argument, in a calm

professional way. Still a refusal. I stated that this left me with no alternative

but to lodge a complaint with the TV Complaints Authority. Still a blunt

refusal. I again went over the ethics argument, and asked the producer to explain

exactly the reasons why I was being refused, so I could put this to the

Complaint Authority. Still no explanation but again a blunt refusal. The

accusation that I was "rude and abrasive" is absolutely and completely untrue.

Shortly afterwards, he had called HPTV again as he now assumed, correctly, that

Brenda Brady had agreed with ATV that she would appear only if he was not present.

Standing by his complaint, Mr Lovelock concluded:

How could I possibly "manage" events. Brenda Brady had apparently set up

the interview, and it was very late in the day when I first received an invitation,

and even later before I appreciated that Brenda was behind the scenes.

If a TV channel appears to be flagrantly breaching TV standards, and stubbornly

maintains this position, then is it a "threat" to remind them respectfully of their

responsibilities and if they continue to ignore them, to make it clear that a formal

objection will be lodged. To me it only highlights the arrogance of the channel in

that they interpret anyone who questions their decision making as being a

"threat".

I was not "rude and abrasive". I was professional, direct, and am prepared to

stand up for the principles that I believe in. In any case is this relevant? Does a

TV channel have an obligation only to give interviews to members of the public

who are kind and gentle, and don't ask difficult questions of its management.