BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has not upheld a complaint about comments by Kate Hawkesby regarding Director-General of Health Dr Ashley Bloomfield. Hawkesby made several comments about Dr Bloomfield, alleging he has underperformed in the response to the COVID-19 pandemic. The Authority found the fairness standard was not breached as the comments were distinguishable as the opinion of the presenter and they did not result in Dr Bloomfield being treated unfairly. Given Dr Bloomfield’s high-profile position, he can reasonably expect to be the subject of robust commentary.

Not Upheld: Fairness  

The broadcast

[1]  During Early Edition, broadcast at 5.24am on 27 August 2021, presenter Kate Hawkesby discussed the performance of the Director-General of Health, Dr Ashley Bloomfield, during the COVID-19 pandemic.

[2]  During the broadcast Hawkesby made comments including:

• ‘Bear in mind, this guy is our number one, head and shoulders above the next best suitable candidate. Now that is the worryingly low benchmark that we are setting and accepting across the state service for where performance expectations sit.’ 
• ‘…if this were the private sector, we would be scoring here on KPIs. We would be canvassing highlights and lowlights. We would be grading performance. And really the only conclusion we could draw would result in a small chat with HR, in which Bloomfield would be invited to bring a support person, followed by a press release about spending more time with his family and, if he's lucky, a small payout.’
• ‘…he's unfortunately clearly now a recidivist underperformer. On numerous occasions, he's at best withheld or obfuscated material information and at worst has barefaced lied to Cabinet, a select committee and the public on testing, on flu vaccines, on PPE, on the critical vaccine procurement and rollout, on saline injections, on text messages to foreign affairs.’
• ‘He's failed to act on the recommendations of Ayesha Verrall and the Sir Brian Roche “continued improvement” report and on the best practice evident globally. Our response has unquestionably been found wanting. We have been caught well short and he's not fronting. He's not fronting with a mea culpa or even highlighting areas where things could have been better. Nor is he being put under scrutiny or held to account by his employer.’

The complaint

[3]  Jeff Clarke complained the broadcast breached the fairness standard for reasons including:

• ‘Ashley was not treated fairly, Kate put forward an unrelenting character assassination of him, which if taken at face value would have left the listener with a negative opinion of Ashley and his role managing the NZ response to COVID-19.’
• There were ‘no stated facts or lines of argument to support the conclusions given’.
• ‘Material facts which were supported by data were not given, as these would contradict and undermine the arguments, or lack thereof, presented by Kate Hawkesby.’
• Dr Bloomfield was not given an opportunity to respond.
• ‘Hawkesby failed to provide a balanced, informed or fact-based view of the situation, or to make any reasonable attempt to do so.’
• ‘Media scrutiny and criticism are an important part of free speech; however, it must be based on facts, well-constructed lines of argument and present a fair assessment of the [individual’s] performance.’
• ‘As a New Zealander I would be deeply concerned if media could write such a piece with no accountability mechanism from the BSA.’
• ‘NZ’s COVID response has produced outcomes that are the envy of the world, our deaths per 1M of population are better than 202 countries.’

The broadcaster’s response

[4]  NZME did not uphold the complaint under the fairness standard and submitted:

• The comments did not result in unfairness to Dr Bloomfield when weighed against the high value in terms of freedom of expression and the media’s role in ‘casting a critical eye on the Government’s decisions and holding the Government to account’.
• ‘…this standard is not intended to prevent criticism of public figures and [the BSA] has stated in a previous decision that: “it is an essential element of free speech that even the most trenchant criticism of public figures be allowed...”¹’
• ‘The comments by the host during this segment were directed at Dr Bloomfield in his professional role as Director General of Health and were not aimed at Dr Bloomfield personally. In his role as Director-General of Health, Dr Bloomfield would expect a high level of scrutiny and indeed is accustomed to such scrutiny and to regular media coverage.’
• ‘This was an opinion segment in which the host gives her own views on a chosen topic.’ There is an established audience expectation in this segment Hawkesby will give her own ‘often strongly expressed’ views on the topic.
• The segment was ‘on the performance of the Ministry of Health (and by extension Dr Bloomfield) during the COVID-19 pandemic. As such, listeners would not have expected the host to set out in detail the background to every matter referred to. In any event, the matters referred to (e.g. testing, flu vaccines, PPE, vaccine procurement and rollout, saline injections, text messages to Foreign Affairs, recommendations of Dr Ayesha Verrall and Sir Brian Roche) have been widely covered by the media and as such listeners would have been of aware of the background and context of the events the host referred to’.
• ‘This segment, which discussed the Ministry of Health and the Director-General of Health’s performance in managing the Government’s COVID-19 response, has high public value and interest in terms of freedom of expression.’

The fairness standard

[5]  The fairness standard² states broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The purpose of this standard is to protect the dignity and reputation of those featured or referred to in broadcasts.³

Our analysis

[6]  As part of our consideration of this complaint, we have listened to a recording of the broadcast and read the correspondence listed in the Appendix.

[7]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only intervene and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

Fairness

[8]  Individuals and organisations have the right to expect they will be dealt with justly and fairly and protected from unwarranted damage.⁴ A consideration of what is fair depends on the nature of the programme and the context, as well as the nature of the individual or organisation referred to.⁵

[9]  We are satisfied that Dr Bloomfield was not treated unfairly, taking into account the following factors:⁶

• Early Edition is an opinion show, where robust commentary, discussion, interviews and opinions on subjects are expected.
• Listeners are likely to understand the comments were Hawkesby’s opinion of Dr Bloomfield’s performance.
• Dr Bloomfield is a high-profile public servant who has been the subject of frequent media coverage and commentary. As previously recognised by the Authority, ‘public health official[s] [are] reasonably subject to robust scrutiny, especially during a pandemic’.⁷ Accordingly, Dr Bloomfield could reasonably expect his actions to be commented on by the media.
• The comments related to Dr Bloomfield’s actions in his role as Director-General of Health.
• While in general the fairness standard requires that any person or organisation who may be adversely affected by a broadcast be given a fair and reasonable opportunity to comment, it is commonplace for public-facing persons or agencies to be criticised without it giving rise to an expectation of participation in each and every broadcast.⁸
• The allegations and opinions in this segment were unlikely to have resulted in viewers being left with an ‘unduly negative’ impression of Dr Bloomfield.
• The comments were a legitimate expression of free speech and concerned issues of high public interest given their connection to the Government’s management of COVID-19.

[10]  The Authority is satisfied that the threshold of harm required to limit the right to freedom of expression has not been reached in this instance.

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

Susie Staley
Acting Chair
1 December 2021

Appendix

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

1  Jeff Clarke’s formal complaint – 29 August 2021

2  NZME’s response to the complaint – 26 September 2021

3  Clarke’s referral to the Authority – 1 October 2021

4  NZME’s comments on referral – 1 October 2021

5  Clarke’s final comments – 2 October 2021

¹ Kiro and RadioWorks Ltd, Decision No. 2008-108 at [78]
² Standard 11 of the Radio Code of Broadcasting Practice
³  Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁴ As above
⁵ As above
⁶ Guideline 11a
⁷ Bowkett and Discovery NZ Ltd, Decision No. 2020-103
⁸ Davis and Radio New Zealand Ltd, Decision No. 2019-061