BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
South – presenter visited lighthouse on Dog Island – told story about lighthouse keeper who “apparently fell to his death” – allegedly inaccurate and unfair

Findings
Standard 5 (accuracy) – factual programme – story was presented as gossip or an anecdote – prefaced with “apparently” and “it appears” – not material points of fact – not upheld

Standard 6 (fairness) – fairness standard does not apply to deceased persons – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   The first episode of South, a programme featuring presenter Marcus Lush exploring Southland, was broadcast on TV One at 7.30pm on Sunday 16 August 2009.

[2]   Mr Lush was shown setting out on his journey, and travelling first to Dog Island off the bottom of the South Island. He visited the lighthouse on Dog Island, and as he discussed its history, he said:

One of the stories that fascinates me reading about the Dog Island lighthouse was in the 1890s one of the lighthouse keepers apparently fell to his death, right down the shaft 36 metres. Nothing’s quite what it seems. It appears there were two lighthouse keepers on the island, one of them had his teenage daughter, and after the death it appears the teenage daughter was pregnant, so it appears it wasn’t accidental death, that some sort of foul play had gone on. So an amazing story – if ever there was a great New Zealand movie to be made, it would be about that day on the Dog Island lighthouse in the 1890s.

Complaint

[3]   Yvonne Chisholm made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that Mr Lush’s statements were inaccurate and unfair.

[4]   Ms Chisholm argued that the programme contained a number of inaccuracies. First, she argued that it was inaccurate to state that the death occurred in the 1890s, because the event happened on 23 May 1883 “as reported in both Invercargill papers and stated in the inquest transcript”. Second, it was inaccurate to state that there were two lighthouse keepers on the island, because there were in fact four. Third, the principal keeper’s daughter was not pregnant at the time of the accident, having given birth in April 1883. Fourth, Ms Chisholm argued that it was wrong to assume that there had been foul play, that the statement ignored the verdict of the coroner’s jury, and that it ignored other possible causes of death, for example that he had fallen because he was in a weakened or upset state.

[5]   Looking at fairness, Ms Chisholm argued that the standard required that appropriate research be carried out before statements were made. She noted that the two primary sources – the transcript of the inquest and the relevant Invercargill papers – appeared not to have been used. The complainant considered that the comment that it appeared that there had been “some sort of foul play” cast suspicion on almost everyone on Dog Island at the time.

Standards

[6]   TVNZ assessed the complaint under Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice, which provide:

Standard 5 Accuracy

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/or
• does not mislead.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[7]   Looking first at accuracy, TVNZ argued that South was a travelogue following the presenter around Southland highlighting interesting countryside and features and the host’s love of the area, and that it was therefore not “news, current affairs or factual programming” as envisaged by Standard 5.

[8]   In any case, TVNZ said, the presenter was sharing an interesting anecdote about a death at the lighthouse in terms which made it clear that it was not a factual recount of what had happened. It considered that this was apparent from the presenter’s use of words such as “apparently” and “it appears”, and his reference to it as an “amazing story”.

[9]   TVNZ noted that the story was well-known in the area; it was often told at the Bluff museum and by other local personalities, and had been depicted in a programme on the local TV station several times.

[10]   TVNZ concluded that there would not have been “any expectation by the viewer that this story was anything more than an interesting anecdote”. It declined to uphold the accuracy complaint.

[11]   With regard to Standard 6 (fairness), the broadcaster noted that the presenter had not named any individuals or organisations in the anecdote and that all of the people who may have been on the island at the time would now be deceased.

[12]   TVNZ considered that it was clear from the programme that the segment was intended to be an interesting story and local explanation about an incident that happened at the lighthouse. It was not an in-depth examination of the history of the lighthouse, it said.

[13]   TVNZ concluded that Standard 6 had not been breached.

Referral to the Authority

[14]   Dissatisfied with TVNZ’s response, Ms Chisholm referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[15]   The complainant disagreed with TVNZ’s argument that a travelogue was not “news, current affairs or factual programming”. She considered that a travelogue should “distinguish between fact and surmise to avoid misleading the viewer”.

Authority's Determination

[16]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 5 (accuracy)

[17]   Standard 5 requires broadcasters to 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.

[18]   The first task for the Authority is to determine whether South was “factual programming” to which the accuracy standard applied. It has previously found that a travelogue was “a factual magazine-style documentary and, as such, any statements of fact needed to be accurate.”¹ The Authority considers that South falls into the same category of programme, and therefore finds that it was a factual programme for the purposes of Standard 5.

[19]   The Authority must next consider whether the presenter’s comments about the incident at the lighthouse were “material points of fact” to which Standard 5 applied. In the Authority’s view, the story about the lighthouse keepers was presented as an anecdote or gossip. It notes that the presenter prefaced each of his comments with “apparently” or “it appears”. Further, in the context of a travelogue exploring Southland, the story was not “material” to the programme as a whole. In these circumstances, the Authority considers that the comments did not amount to “material points of fact”, and it declines to uphold the accuracy complaint.

[20]   However, the Authority acknowledges that living descendants of the lighthouse keeper may have been upset by the programme, and it reminds the broadcaster that care should be taken with material of this nature.

Standard 6 (fairness)

[21]   Standard 6 requires broadcasters to deal fairly with any person taking part or referred to in an item. The complainant considered that the presenter’s comments were unfair to anyone living on Dog Island at the time of the incident.

[22]   The Authority notes that the objective of the fairness standard is to protect people from broadcasts which unfairly represent their character or conduct, so that unwarranted harm is not caused to their reputation and dignity. Therefore complaints under the fairness standard must relate to specific individuals who have taken part, or were referred to, in a programme. The complainant did not identify a specific person in her original complaint who she considered had been treated unfairly.

[23]   In any event, the Authority has previously determined that Standard 6 does not apply to deceased people (see for example Coates and TVNZ and Kiro and TVNZ²). It therefore does not apply to anyone who was living on the island in the 1880s.

[24]   Accordingly, the Authority declines to uphold the fairness complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
15 February 2010

Appendix

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

1.           Yvonne Chisholm’s formal complaint – 9 September 2009
2.          TVNZ’s response to the complaint – 9 October 2009
3.          Ms Chisholm’s referral to the Authority – 4 November 2009
4.          TVNZ’s response to the Authority – 1 December 2009

¹Evison and TVNZ, Decision No. 2009-033

²Decision Nos. 2009-116 and 2007-111