BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
One News – item reported on the National Party’s proposed asset sales policy – stated that the Government had refused to release information under the Official Information Act and that a complaint to the Ombudsman revealed that the Government had very little official advice regarding its claim about limiting foreign ownership – allegedly in breach of accuracy standard

Findings
Standard 5 (accuracy) – item highlighted that the Government received limited official advice on limiting foreign ownership and questioned its decision not to release further information about that aspect of the policy – was not overly critical of the Government – high value speech – included comment from Prime Minister John Key – item was not inaccurate or misleading – not upheld

This headnote does not form part of the decision.

Introduction

[1]  An item broadcast on One News and One News Tonight on TV One on 22 November 2011, reported on the National Party’s proposed asset sales policy. Essentially, the item reported that the Government had refused to release information about the asset sales under the Official Information Act (OIA) and that One News had called on the Ombudsman to investigate that decision. The One News political editor stated:

Finally, this morning we found out that despite claims that up to 90 percent of these assets will remain in New Zealand hands, the Treasury has not provided the Government with any detailed analysis of that aspect of the asset sales policy.

[2]  The political editor stated that there were five official reports being “kept secret” and that the Ombudsman had made an initial ruling that the Government was right not to release the papers. He said that One News was of the view that “the people need this information to judge whether the asset sales policy stacks up given they’re about to go the polls in a few days’ time”.

[3]  Elizabeth Carroll made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item amounted to “media manipulation” in the lead-up to the election. In her view, the item was constructed to suggest that the Government was being “obstructive and deliberately secretive” in refusing to release details of the partial asset sales policy, and sought to discredit the policy by stating that the Government had very little advice from Treasury on limiting foreign ownership. 

[4]  The issue is whether the item breached Standard 5 (accuracy) of the Free-to-Air Television Code of Broadcasting Practice.

[5]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Was the item inaccurate or misleading?

[6]  Standard 5 (accuracy) 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. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.¹

[7]  Ms Carroll objected to the item’s alleged criticism of the National Party for not providing detailed information to One News on its asset sales policy, and the implication of secrecy, or an “ill-thought out” policy. The complainant said that she expected journalists to present information accurately and without any intention to influence viewers on political issues. The complainant’s main concern was that the item was not impartial as required by guideline 5c.

[8]  In assessing an alleged breach of broadcasting standards, we must give proper consideration to the right to freedom of expression which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. Any restriction on the right to free speech must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5).  

[9]  The starting point is to assess the value of the particular speech in issue, and then to balance this against the potential harm that is likely to result from allowing the unfettered dissemination of that speech. On this occasion, the type of speech engaged amounted to political commentary on a major policy issue in the lead-up to the general election. It was high value speech, and therefore a strong justification is required to restrict the broadcaster’s right to impart such information and the audience’s right to receive it.

[10]  In our view, the item was not overly critical of the Government and its asset sales policy. Rather, it was a straightforward news report on the nature of the OIA request and the information obtained as a result of that request – namely, that the Government had limited official advice to support its claims about limiting foreign ownership. The item also questioned the Government’s decision not to release further information on this aspect of the asset sales policy. 

[11]  We consider that it was legitimate for the item to raise these issues given that the focus of the story was a highly charged and controversial political issue that had been a key component of the National Party’s election campaign. It is an important tenet of democracy that the media be allowed to question those in power, and in particular with regard to the non-disclosure of information in which there is a high level of public interest. We note that the political editor stated:

One News has argued that people need this information to judge whether the asset sales policy stacks up, given they are about to go to the polls in a few days time. The Ombudsman  will hear our final case tomorrow and make a final ruling probably by Thursday. That would leave perhaps one day for this to be debated before people go to the polls to vote on Saturday.

[12]  The item provided balance through presenting comment from Prime Minister John Key with regard to asset sales policy and advice on limiting foreign ownership. For example:

• “There’s advice, as I understand it some of it’s oral, some of it’s advice that they’ve taken from industry experts, it’s a range of different factors that have been put together to come up with that number.”
• “You could say, 100 percent of shares to New Zealanders. Obviously we could say less, but we are targeting that 85 to 90 percent and I am confident we will reach that.”

[13]  Further, the political editor stated:

The ombudsman has made an initial ruling that the Government was right to refuse the release of these papers. The ruling says it’s too early in the sales process and if the information got out now it could affect the amount of money gained from these assets. The ruling also says the negative economic impact of that could be significant given the total asset sales price is expected to be between five and seven billion dollars...

[14]  Viewers were provided with arguments for and against the release of the information and with regard to the advice relied on for limiting foreign ownership. In this sense, viewers were left to form their own opinions about the issue under discussion.  

[15]  For these reasons, we do not consider that the item was biased against the National Government and its asset sales policy, or that viewers would have been misinformed by the information broadcast, such that any harm was caused in terms of the objectives of Standard 5.  

[16]  Accordingly, we consider that upholding the complaint would place an unreasonable and unjustifiable limit on the broadcaster’s right to freedom of expression, and we therefore decline to uphold the Standard 5 complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
1 May 2012

Appendix

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

1                  Elizabeth Carroll’s formal complaint – 23 November 2011

2                 TVNZ’s response to the formal complaint – 22 December 2011

3                 Ms Carroll’s referral to the Authority – 25 January 2012

4                 TVNZ’s response to the Authority – 21 February 2012

¹Bush and Television New Zealand Ltd, Decision No. 2010-036