BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

[This summary does not form part of the decision.]

The Authority has not upheld complaints about a Breakfast interview with Labour MP Tangi Utikere. During the interview, Utikere was asked about reports of a ‘leaker’ within the Labour caucus, and was repeatedly questioned on whether he himself was the leaker. The complainants alleged the interview amounted to bullying and denigrated Utikere. The Authority acknowledged the questioning was sustained, but was within the scope of the type of questioning expected of a politician, particularly in the lead up to an election, and the broadcast was not in breach of the fairness standard (with respect to treatment of Utikere or former Minister Kiritapu Allan). The balance and discrimination standards were either not applicable or not breached. 

Not Upheld: Fairness, Balance, Discrimination and Denigration

The broadcast

[1]  On 27 July 2023, on Breakfast, host Jenny-May Clarkson interviewed Labour MP Tangi Utikere and National MP Simeon Brown. The segment was introduced with the following:

Clarkson:       … as if the week couldn't get any worse for Labour, they now have a leaker inside their caucus. The Post is reporting a first term MP is understood to have said that Kiritapu Allan bullied and yelled at them and accused Labour of turning a blind eye to what was going on. We're now joined by National MP Simeon Brown and Labour MP Tangi Utikere. I feel quite sorry for you coming into this interview, Tangi, because there ain’t much to celebrate at the moment. You've got a leaker, is it you?

[2]  The interview continued with Clarkson and Brown asking whether, or insinuating that, Utikere was the leaker approximately 12 times. Utikere responded to these questions with variations of statements advising that he would not speak on caucus matters, and that he was a person of principle. The questioning continued after Utikere expressly advised that he was not the leaker. 

[3]  While the interview played, a banner below the participants continuously ran through three headlines: ‘Leaker inside Labour caucus’; ‘A junior Labour MP accuses Kiri Allan of bullying’; and ‘Stuff reporting police dogs used to find Allan after crash’.

The complaint

Fairness to Utikere

[4]  Diane Casley and Dave Stewart complained the broadcast was unfair to Utikere and amounted to ‘bullying’. The complainants added:

• Utikere repeatedly explained why he could not comment on caucus matters, and yet he was ‘scoffed at by Ms Clarkson and Mr Brown’. The hosts questioning amounted to ‘bullying’ and ‘haranguing’ of Utikere, and was a ‘sustained attack’. It was ‘disturbing’ and ‘disgusting’ to watch. (Casley)
• Clarkson asked a ‘straight forward question and was given a clear emphatic answer’. ‘She then joined Mr Brown in laughter as the question was asked again and again and again in what can only be described [as] a campaign to deliver a fake narrative to denigrate a member of our government.’ (Stewart)

Fairness to Allan

[5]  Casley added that the broadcast was unfair to former Minister Kiritapu Allan as Clarkson ‘scoffed’ and ‘gloated’ about Allan while Allan was suffering a mental health crisis, and that discussing it in this manner was ‘damaging to her’. Casley argued that having ‘a public trial using unsubstantiated material about a person in mental health crisis’ is unfair and unjust.

Balance

[6]  Stewart considered the ‘attack’ on Utikere by Clarkson and Brown showed a ‘sheer lack of balance’. They added that the programme was ‘National aligned’ and ‘biased’.

Discrimination and Denigration

[7]  Both complainants argued that Clarkson and Brown ‘denigrated’ Utikere.

[8]  Casley submitted Clarkson’s ‘continued haranguing of her guest was bullying’ and Casley ‘personally felt sick and shocked witnessing this sustained attack on Tangi’.

The broadcaster’s response

[9]  TVNZ did not uphold the complaints for the following reasons:

• ‘The question over whether there is a leaker/s from inside caucus and who the person leaking may be is a relevant one. [Clarkson] was justified in pressing [Utikere] for clarity as he does skirt the issue at the start and there seemed to be more in it.’

Fairness

• ‘While the questioning is sustained, the discussion is amiable and Mr Utikere is not questioned aggressively. The discussion focused solely on the Labour government and Mr Utikere in his professional capacity as Chief Whip.’
• Minister Utikere is confident in the programme; is familiar with the media; handled the discussion adeptly; and was able to put his position across.

Balance

• While TVNZ considered the balance standard did not apply as it believed the topic was not a controversial issue of public importance, it advised that should the standard apply, ‘significant viewpoints were included on the subject of a potential Labour caucus leak in the discussion, and that Tangi Utikere, as the Labour Party Chief Whip, and a potential subject of this issue was able to respond fulsomely to the matter.’

Discrimination and Denigration

• The discrimination and denigration standard does not apply to individuals, and further, there was no material in the programme that expressed a high level of condemnation of any section of the community. 

The standards

[10]  The fairness standard is most relevant to both complaints. Accordingly we focussed our determination on that standard. We briefly address the remaining standards at paragraph [19] below.

[11]  The fairness standard¹ protects the dignity and reputation of those featured in programmes.² It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

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

[13]  We recognise the value of robust political discourse in the media and the role of media in holding to account those in positions of power. This enables the public to be informed and engaged, which is critical to a free and democratic society. When we consider a complaint that a broadcast has breached broadcasting standards, we weigh the value of the programme, and the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused by the broadcast.³

[14]  The fairness standard states broadcasters should deal fairly with any individual or organisation taking part or referred to in a broadcast.⁴

[15]  At the outset, we note it is well established that the threshold for finding a breach of the fairness standard in relation to politicians and public figures is higher than for someone unfamiliar with the media. Politicians and public figures hold a position in society where robust questioning and scrutiny of their policy, roles and behaviour is encouraged and expected. They are frequently capable interviewees, experienced in handling aggressive or inflammatory questioning or other coverage that may be considered unfair for an ordinary person.⁵

Fairness to Utikere

[16]  With respect to whether the fairness standard has been breached in relation to Utikere, a consideration of what is fair depends on the nature of the programme and other relevant context.⁶ We consider the following factors to be relevant in this situation:

• Breakfast is a morning news and current affairs show.
• The broadcast carried high public interest as the reports of a leak in the Labour caucus came during a series of high profile issues for the Labour Party.  
• Utikere is an experienced politician, familiar with the media and was a voluntary participant in the interview. Given his role as Chief Whip, Utikere would expect to be challenged on concerns such as leaking within caucus.
• Utikere was given a fair and reasonable chance to respond to the questions posed (answering and repeating that he respected the confidentiality of caucus and was a person of principle who did not speak on what was said in caucus).
• The presenter’s questioning of Tangi related to his conduct in his professional role and the manner in which he responded to questions about potential involvement in the leak, not his personal life.  
• While Clarkson and Brown’s questioning was sustained, the questions did not go beyond what could be expected from political analysis or commentary, particularly during an election year. Further, Utikere remained calm and composed and the participants engaged in the questions and answers good-naturedly. We consider the interview would not have left audiences with an unduly negative impression of Utikere.
• The decisions of the Authority issued over time provide guidance to broadcasters and complainants about what is acceptable under the broadcasting standards. We have consistently not upheld complaints about fairness to politicians when being interviewed and this is reflected in BSA’s published guidance on complaints that are unlikely to succeed.⁷

[17]  Overall, taking into account the above factors, and noting the interviewing of politicians by journalists is an important feature of the exercise of freedom of expression, we do not consider the questions went beyond the level of  scrutiny and political analysis that could be reasonably be expected in an interview with a politician. While we acknowledge the questions were sustained, and continued after Utikere had answered the question, we do not consider the broadcast caused harm at a level outweighing the broadcaster’s right to freedom of expression in this case, and we do not uphold the complaint under the fairness standard in relation to Utikere. 

Fairness to Allan

[18]  While we appreciate the complainant’s concern for Allan, the host’s action in raising reports about a politician’s alleged poor behaviour was reasonable in the circumstances, as it related directly to the leak which was the centre of the discussion. The reference was brief, noted something ‘reported’ to have been said (without endorsing or further mentioning it) and did not prompt any sustained discussion about Allan. The on-screen banners regarding events surrounding Allan simply alerted viewers to relevant events and the subject of discussion. In addition, Utikere had the opportunity to respond to Clarkson’s reference to Allan, noting that it had been a sad week for Allan, and Labour’s focus was on supporting Allan. Noting in particular our comments at [15] and the factors above, we do not consider references to Allan in this broadcast resulted in any unfairness.

Remaining standards

[19]  The remaining standards either do not apply or have not been breached:

• Balance:⁸ This standard requires reasonable efforts to be made to reflect significant perspectives when ‘controversial issues of public importance’ are discussed in news and current affairs programmes.⁹ While the issue of leaking caucus material might amount to a controversial issue of public importance, the complaint does not concern a failure to present alternative perspectives on that topic. It is focused on Clarkson’s and Brown’s treatment of Utikere which is a matter better addressed under the fairness standard. Insofar as the complainant considered the broadcast to be biased, the balance standard is not directed at bias in and of itself. Provided the standard is not breached with regard to the discussion of a controversial issue of public importance, broadcasters are entitled to present stories from particular perspectives. This approach to the balance standard reflects the present broadcasting environment and the increased flows of information available to the public from sources and on topics of all kinds.¹⁰
• Discrimination and Denigration:¹¹ This standard protects against broadcasts which encourage the discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief.¹² The standard does not apply to individuals (such as Utikere), or organisations (such as the Labour caucus), which are dealt with under the fairness standard.¹³ In addition, with regard to Casley’s comment about feeling ‘sick and shocked’ by the broadcast, the discrimination and denigration standard is not focused on content which causes such reactions in the audience but on content which ‘encourages discrimination and denigration’.

Complainant language

[20]  Lastly we note a warning in regard to the language and tone used by one of the complainants (Stewart) in their initial complaint and referral to the Authority. Our policy allows for us to decline to determine complaints where a party’s language or behaviour is abusive or threatening. The language in this case did not quite reach that threshold. However, it was still rude, and we ask that parties be polite and respectful in their communications with each other, and with the Authority.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
29 November 2023    

Appendix

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

1  Diane Casley’s formal complaint to TVNZ – 27 July 2023

2  Dave Stewart’s formal complaint to TVNZ – 28 July 2023

3  TVNZ’s response to Casley’s complaint – 16 August 2023

4  TVNZ’s response to Stewart’s complaint – 22 August 2023

5  Casley’s referral to the Authority – 17 August 2023

6  Stewart’s referral to the Authority – 23 August 2023

7  TVNZ’s confirmation of no further comment on both complaints – 25 August 2023

¹ Standard 8, Code of Broadcasting Standards in New Zealand
² Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
³ Introduction, Code of Broadcasting Standards in New Zealand at page 4; and Hagger and MediaWorks TV Ltd, Decision No. 2020-032 at [8]
⁴ Standard 8, Code of Broadcasting Standards in New Zealand
⁵ See Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Complaints that are Unlikely to Succeed” at “Fairness applied to politicians/public figures”
⁶ Guideline 8.1
⁷ Broadcasting Standards Authority “Complaints that are unlikely to succeed” (see “Fairness applied to politicians/public figures”); See also: Frewen and Television New Zealand Ltd, Decision No. 2020-146B; Bowkett and Discovery NZ Ltd, Decision No. 2020-103; Cowie and Radio New Zealand Ltd, Decision No. 2020-133; Downes, Penning, Maltby, Massie & Tang and NZME Radio Ltd, Decision No. 2020-123; and Marra and Mediaworks Radio, Decision No. 2019-023
⁸ Standard 5, Code of Broadcasting Standards in New Zealand
⁹ Standard 8, Code of Broadcasting Standards in New Zealand
¹⁰ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 15
¹¹ Standard 4, Code of Broadcasting Standards in New Zealand
¹² Standard 4, Code of Broadcasting Standards in New Zealand
¹³ Pascoe and Television New Zealand Ltd, Decision No. 2020-090 at [15]