Charley and Television New Zealand Ltd - 2012-073
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Peter CharleyNew South Wales, Australia
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Media 7 – included interview with investigative journalist and foreign correspondent – made comments that were critical of a reporter and her story which was broadcast on Australian current affairs show Dateline – allegedly in breach of standards relating to fairness and accuracy
Standard 6 (fairness) – Media 7 is a programme with very high value in terms of freedom of expression – the ability to analyse, review and critique media is essential to the functioning of a healthy democracy – the Dateline item was ambiguous in terms of its presentation of eye witnesses – the important principle of freedom of speech that public officials are open to criticism in their professional capacity applies equally to journalists, particularly as they are familiar with how media operate – criticisms overall were aimed at Ms Hakim in her professional, as opposed to personal, capacity – complainant was provided with a fair and reasonable opportunity to comment and his response was fairly summarised – use of Dateline extracts was not unfair – Ms Hakim and the complainant were treated fairly – not upheld
Standard 5 (accuracy) – Mr Stephenson’s comments were clearly distinguishable as his personal and professional opinion and therefore exempt from standards of accuracy under guideline 5a – programme not inaccurate or misleading – not upheld
This headnote does not form part of the decision.
 An episode of Media 7, a weekly commentary and review show focusing on the week’s news and new media developments, contained an interview with Jon Stephenson, an investigative journalist and foreign correspondent in Afghanistan. During the interview, Mr Stephenson commented on, and critiqued, a reporter, Yalda Hakim, and her story on the current affairs programme Dateline, produced by Australia’s SBS television network. The Dateline item reported on the massacre of 16 civilians in Afghanistan in March 2012 (the Kandahar massacre). The Media 7 episode was broadcast on TVNZ7 on 26 April 2012.
 Peter Charley, the Executive Producer of Dateline, made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that Mr Stephenson made comments that were inaccurate and unfair to the Dateline reporter. He also argued that his response to the criticisms was “selectively” summarised and that Media 7 used extracts from Dateline in a manner that was misleading and unfair.
 The issue is whether the Media 7 episode was inaccurate or unfair in breach of Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.
 The members of the Authority have viewed a recording of the broadcast complained about, as well as the Dateline report, and have read the correspondence listed in the Appendix. We note that it is unusual for the Authority to view programmes from outside its jurisdiction, which have not been the subject of a complaint. However, on this occasion it was necessary for us to view the Dateline programme in order to interpret the complaint and the response from the broadcaster.
Nature of the programme and freedom of expression
 In assessing an alleged breach of broadcasting standards, we must give proper consideration to the right to freedom of expression. Any restriction on the right to free speech must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society.1 The starting point is to assess the value of the particular speech, and then to balance this against the potential harm that is likely to result from allowing the unfettered dissemination of that speech.
 Media 7 was a serious media analysis and review programme focused on commentary and discussion, including critique, of media matters in New Zealand and abroad.2 Mr Stephenson, who was the focus of the episode, is an independent New Zealand journalist, renowned for his work as a foreign correspondent in Afghanistan. The interview was introduced as follows:
When we last heard from independent journalist Jon Stephenson he was headed to the scene of our present war in Afghanistan to pursue the stories he wrote in this Metro magazine feature ‘Eyes Wide Shut’. He is now Kabul correspondent for McClatchy, the third largest newspaper chain in the US. So what does a foreign correspondent in Afghanistan get up to?
 The comments subject to complaint were made by Mr Stephenson when he was asked for his opinion on the way the Kandahar massacre had been covered by another media outlet, SBS Australia, on the programme Dateline. This accorded with the purpose of Media 7, which was to examine and challenge how events are reported by other media outlets. There was a high level of public interest in the programme. A free and independent media is considered to be at the core of a healthy democracy. It naturally follows that analysis of media is of equal importance.
 The Dateline report was also of high value. It put forward a legitimate theory – described as the ‘multiple shooter theory’ – that was worthy of discussion and dialogue. The theory was based on accusations from Afghan villagers and the observations of children that more than one soldier was involved in the massacre. The dissemination of alternative perspectives and the ability to ask questions is essential to finding truth, stimulating debate, and ensuring accountability.
 We think that freedom of expression values are engaged here to the highest degree, and therefore that any restriction on these values by upholding this complaint requires a strong justification under the New Zealand Bill of Rights Act 1990. The alleged harm, in terms of the underlying objectives of the accuracy and fairness standards, was a representation of Ms Hakim and the Dateline report in a manner that was purportedly misleading and potentially damaging to her reputation, as well as to the reputation of the complainant as Dateline’s Executive Producer.
 We approach the complaint cautiously, keeping in mind that we may only limit the right to freedom of expression to an extent that is reasonable and with proper justification.
Was any person or organisation treated unfairly?
 Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.
 One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.3
 Mr Charley argued that Media 7 allowed Mr Stephenson to engage in an “unprovoked and sustained attack on the integrity” of Ms Hakim. In particular, he argued that Ms Hakim was unfairly accused of:
- knowingly constructing a “false narrative” by presenting interviewees as eye witnesses to support the ‘multiple shooter theory’
- lying about being the first western journalist at the scene of the massacre
- constructing the report in this manner for reasons of “ego or less altruistic reasons”.
 TVNZ considered that it was fair for Mr Stephenson to criticise Ms Hakim and the Dateline report because she did not make it clear which of the interviewees were eye witnesses, and which were giving second-hand accounts of events. It considered that Mr Stephenson’s comments amounted to his expert opinion and were protected under the New Zealand Bill of Rights Act 1990. It stated, “Indeed one of the great freedoms of a democratic society is to be able to offer opinion and analysis on news items about internationally important incidents such as this killing. Such discussion is considered to be ‘high [value] speech’ and is therefore protected”. The broadcaster said that Mr Stephenson’s comments related to Ms Hakim’s work and were not a “personal attack” on her.
 In assessing the fairness complaint we have carefully considered all of the relevant material, and as noted earlier we have viewed the Media 7 item as well as the Dateline report. We accept that Mr Stephenson made comments that were critical of Ms Hakim and the way she chose to construct and present her report on the Kandahar massacre. In particular, he said:
“I mean it’s very clear that [the reporter] presented [the man] at the top of the programme, and [another man] who I also interviewed, as eye witnesses to what happened... they weren’t eye witnesses and it’s very disturbing, particularly because in the programme she also goes on to point out that [Afghan President Hamid] Karzai says there were multiple shooters and of course [Afghan President Hamid] Karzai was relying on the same people who are not eye witnesses that [Ms Hakim] relies on in the programme, so it’s kind of like giving momentum and truth to a narrative which is almost certainly false...”
“…it’s a little bit disturbing that there’s this kind of narrative for political reasons and perhaps in the case [of] some journalists, for reasons of ego or for less altruistic reasons…”
 These were serious criticisms, and we have given careful consideration, having regard to the Dateline report, to whether the criticisms were unfair. The first statement above discussed the ‘multiple shooter theory’ and challenged how it was advanced by Dateline. We believe this is precisely what viewers would expect from a media analysis programme. Mr Stephenson’s assessments were his opinion, based on his knowledge on the ground and the villagers he interviewed. The second comment moved on to question why Ms Hakim chose to advance the ‘multiple shooter theory.’ We consider this is the comment that the complainant interpreted to be an attack on Ms Hakim’s integrity. We appreciate that broadcast journalists tell stories in different ways to print journalists. The Dateline style of storytelling was to take the viewer on a journey with the reporter. This is a skilful and commonly used device to interest viewers and hold their attention. We are also aware that in the competitive nature of journalism, some print journalists object to this style of reporter-centred storytelling. While we accept that some of Mr Stephenson’s comments were challenging and reflected an apparent dislike for the style of storytelling adopted by Ms Hakim, we find that, overall, Ms Hakim and the complainant were treated fairly. Our reasons can be summarised as follows:
- viewers would have understood that the premise of Media 7 is to analyse and review media matters in detail
- the Dateline report was ambiguous in terms of its distinction between commentary and eye witness accounts
- Ms Hakim’s position as a journalist and the presenter of a prime-time current affairs programme, and her understanding of the media industry, mean that she should reasonably expect some professional criticism
- the complainant was provided with a fair and reasonable opportunity to respond to the criticisms and his response was adequately summarised in the item.
 We reiterate that Media 7 was a media analysis and review programme with serious intent and an important underlying function. Here, that function involved an examination of how an internationally important incident, the Kandahar massacre, had been reported by another media outlet. We have viewed the Dateline report, and are of the opinion that it was not made clear in that report which, if any, of the people interviewed, were eye witnesses to the shootings. Some of the interviewees were named, but it was not explained anywhere in the item if they were present when the massacre took place or how they were otherwise involved, nor was it made clear which of the interviewees supported the ‘multiple shooter theory’ and which did not, though we accept that the theory was disputed in the item by Afghan soldiers. The broadcaster appeared to rely on subtleties in terms of tense or reference to indicate whether an interviewee was actually an eyewitness. However, the overall impression was a lack of clarity which we believe justified the analysis made by Mr Stephenson.
 Given this ambiguity in the Dateline report, and Ms Hakim’s position as a journalist and the presenter of a long-running current affairs programme that screens during prime-time viewing, we do not think that Mr Stephenson’s comments resulted in unfairness.
 While some of Mr Stephenson’s comments could be considered challenging, his criticisms were targeted at Ms Hakim in her professional, as opposed to personal, capacity. The Authority has previously stated, with regard to public figures, that:4
[T]he fairness standard does not prevent criticism of public figures. Indeed, it is an essential element of free speech that even the most trenchant criticism of public figures be allowed… The question for the Authority is whether that criticism overstepped the boundaries of fairness, that is, whether it strayed into abusively personal territory.
 We consider that the important principle of freedom of speech that provides for public officials to be open to criticism in their professional capacity must apply equally to journalists who put themselves in the public domain and who perform a public function by reporting on news and current affairs matters.
 We accept that Mr Stephenson questioned Ms Hakim’s motives for taking the angle she did with this story. While we acknowledge the validity of the angle adopted by Dateline, we also acknowledge that in terms of freedom of expression Mr Stephenson and Media 7 had a right to challenge that approach and the reasons it was taken. Mr Stephenson implied that Ms Hakim could have been motivated by “ego.” We do consider that this comment was challenging and potentially distressing to Ms Hakim and her colleagues. However, the comment was made in the context of evaluating the professional approach taken by Ms Hakim in her telling of Dateline’s Kandahar story; it was aimed at Ms Hakim in her professional capacity, in her role as a journalist, and could not be considered to be “abusively personal”. We believe that this is part of the robust nature of the media environment in which Dateline and Media 7 operate.
 Further, Mr Charley, on behalf of SBS Australia, was made aware of the likely comments to be included in the broadcast, and was given an opportunity to comment. His response was summarised in the item, both visually and verbally, as follows:
I fully stand by Yalda Hakim’s report on the recent massacre of civilians there. In a range of interviews contained in her report, testimony from three “eye witnesses” to the shootings was clearly identified as being separate from commentary…
Yalda was the first western reporter to visit the village of Alkozai – a different location – which, according to Afghan officials, no other western journalists have visited since the killings.
 Mr Charley argued that the item did not refer to that part of his response which specifically addressed the claims of dishonesty in terms of the alleged misrepresentation of eye witnesses. In particular, he said that his response explained how a specific interviewee was distinguished, in the Dateline item, as providing commentary, as opposed to being an eye witness. We are satisfied that the Media 7 summary contained the key points of the response. It was not necessary, in the interests of fairness, to refer to Mr Charley’s argument about how a specific interviewee was presented; it was sufficient, in our view, to refer to his comment that “eye witnesses to the shootings [were] clearly identified as being separate from commentary”.
 Mr Charley also argued that the item used extracts from Dateline out of sequence so as to misrepresent the nature of the report. TVNZ, on the other hand, said the excerpts were chosen to “give the flavour” of the story and to provide viewers with the “necessary background to the story that Jon Stephenson wished to comment on”. We consider that the Dateline excerpts were ordered in a way that made the story understandable for viewers, without recourse to running the entire report, and in accordance with standard practice in a programme of this length. This was a media analysis programme and not a current affairs programme that could be expected to show the item in full. Our view is that the Dateline report was not deliberately presented out of sequence to create a misleading or unfair impression. It was clear from the programme that only parts of the Dateline item were shown, and for those who wished to view the entire item, they could access it online.
 For these reasons, we find that upholding the fairness complaint would be an unjustifiable limit on the right to freedom of expression. We therefore decline to uphold the Standard 6 complaint.
Was the programme inaccurate or misleading?
 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.5
 Mr Charley argued that a “fundamental failure… to establish truth and balance… points to a prejudice against Dateline from the outset”. We are puzzled by this remark given that the Dateline item was unable to establish truth but, like Media 7, raised alternative views and opinions. We also disagree with the characterisation of the programme as “prejudiced”. The very nature of Media 7 meant that it discussed controversial issues, just as Dateline identified an alternative viewpoint to that already reported in relation to the Kandahar massacre.
 Mr Charley also considered that Media 7’s failure to acknowledge that errors had occurred and its failure to broadcast a correction, in particular with regard to Mr Stephenson’s statements about Afghan President Hamid Karzai and General Karimi (see paragraph ), breached guideline 5b. Guideline 5b states that in the event that a material error of fact has occurred, broadcasters should correct it at the earliest appropriate opportunity.
 TVNZ maintained that the comments were made during an interview about Mr Stephenson’s work in Afghanistan, his employer, and his perception of how other news media reported on the stories he covered. The comments were clearly framed as his expert opinion on the situation and the Dateline item, and in the context of the interview this is how his comments would have been interpreted and understood by viewers, it said.
 Given the nature of the programme and the premise of the interview, we accept that Mr Stephenson’s comments were clearly distinguishable as his personal and professional opinion, and were therefore exempt from standards of accuracy under guideline 5a. Guideline 5a states that the accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion. As his comments amounted to opinion, and no material errors of fact were made, guideline 5b is not applicable.
 Accordingly, we 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
4 December 2012
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Peter Charley’s formal complaint – 11 May 2012
2 TVNZ’s response to the complaint – 6 June 2012
3 Mr Charley’s referral to the Authority – 28 June 2012
4 TVNZ’s response to the complaint – 20 August 2012
5 Mr Charley’s final comment – 31 August 2012
6 TVNZ’s final comment – 21 September 2012
1See sections 5 and 14 of the New Zealand Bill of Rights Act 1990
2Media 7 is no longer broadcast, following the closure of TVNZ7
3Commerce Commission and TVWorks Ltd, Decision No. 2008-014
4Kiro and RadioWorks Ltd, Decision No. 2008-108
5Bush and Television New Zealand Ltd, Decision No. 2010-036