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 under the accuracy, balance, and fairness standards regarding an item on 1 News reporting on the global economy. The item referred to the National Party’s tax policy and included comments from both the Leader of the Opposition Christopher Luxon MP and Rt Hon Jacinda Ardern. The complainants considered the report’s editing of comments misled the audience to ‘think that PM Jacinda Ardern thinks financial discipline is not right nor good for New Zealand’. The Authority did not consider a reasonable viewer would be left with this impression. The balance and fairness standards were not breached.

Not upheld: Accuracy, Balance, Fairness

The broadcast

[1]  An item on 1 News, broadcast on 29 September 2022, reported on the results of a recent 1 News Kantar Public Poll finding that New Zealanders ‘are feeling more positive about the shape of the economy than in any time over the past year.’ The presenter noted this increase ‘in confidence comes at a time when global markets are taking a battering’ with ‘the British pound falling to a historic low’.

[2]  The item then discussed the perceived impacts global market concerns were having on New Zealand, including:

• a ‘vox pop’ of New Zealanders regarding their KiwiSaver balances
• noting how different monetary authorities around the world were handling ‘recession fears’
• a statement from the International Monetary Fund criticising the UK’s tax cut proposals (at the time), saying ‘tax cuts are likely to fuel inflation’.

[3]  Following the above statement, the reporter noted National Party Leader Christopher Luxon MP ‘says those tax cuts are very different from National’s proposal’, before transitioning to an interview where Luxon states:

I will be weighing up the conditions and the fiscal conditions that we have and making sure that we do that sensibly and appropriately. What I’d just say to you is what that also shows very clearly is [that] financial discipline really matters.

[4]  Rt Hon Jacinda Ardern is then presented saying:

Another one of the reasons why we don’t believe the Opposition’s proposals are right or good for New Zealand.

The complaints

[5]  Shane Dobson and Debbie Erickson complained the broadcast breached the balance, accuracy, and fairness standards of the Code of Broadcasting Standards in New Zealand on the basis the editing between Luxon’s and Ardern’s interview questions:

misleads the audience to think that PM Jacinda Ardern thinks financial discipline is not right nor good for New Zealand because of the way the PMs words follow on directly from those of Christopher Luxon.

[6]  The complainants considered:

Omitting the context of the PM's reply meant the PM was not fairly represented by TVNZ 1 News - unlike Luxon who was allowed twice as many words as the PM to establish his content.

[7]  We note the formal complaints were identical in all material respects (resulting in TVNZ addressing the complaints in the same decision) and little was added by way of referral to the Authority.

The broadcaster’s response

[8]  TVNZ did not uphold Dobson’s and Erickson’s complaints, noting:

There is nothing in the [report] which could be considered to be outside what is reasonable political or economic analysis, the editing of footage is not unreasonable or likely to mislead, and the stories are not unduly critical of [Ardern].

[9]  With regards to the specific standards raised, TVNZ noted:

Accuracy

• TVNZ strongly disagreed with the complainants’ suggestion the editing of questions misled viewers. It noted:
  
  The entire section of that story - the second half of the track - was about tax cuts. For that reason, it should be obvious the Prime Minister was commenting on tax cuts and National's proposal. It is common practice for journalists to put the comments of political leaders back to back. As always, it is simply not possible to include a very long grab in television stories. Sometimes shorter grabs have more impact than a longer one. To reiterate, this was largely a story about the global economy and for that reason, was never going to include extensive details about the NZ political proposals.

Balance

• TVNZ did not consider the standard applied, as the discussion concerning the global economic situation, with a short reference to National’s tax policy, ‘is not an issue which has topical currency… or about which there has been on-going public debate’.
• In any event, ‘significant viewpoints on this issue were canvassed in the story with both National and the Labour Party perspective on the National tax policy included.’ TVNZ also referred to other 1 News items which discussed National Party’s tax policy, so it is ‘reasonable to expect that viewers’ would be aware of alternative viewpoints.¹

Fairness

• TVNZ did not agree ‘that the extract used of Ms Ardern's statement misrepresents her meaning. It is very clear in our view that she is referencing the National Party top rate tax cut policy, which has been widely discussed in news media.’

[10]  In responding to the referrals, TVNZ noted neither complainant initially ‘supplied any reason for their referral’ of the complaints. TVNZ also requested the Authority exercise its discretion² to decline to determine these complaints as they were a ‘misuse of the complaints process’. We elaborate on and address this request below.

Preliminary issue – request to decline to determine

TVNZ’s concerns

[11]  TVNZ has requested the Authority decline to determine these complaints on the basis they are vexatious (or otherwise should not be determined by the Authority). It stated:

The complaints in question here arose from a public Facebook page administered by a person who has not made a formal complaint themselves, encouraging their followers to make formal complaints, including by providing the complaint to cut and paste, and the link to complain to TVNZ and then subsequently to refer to the BSA. They also encouraged followers to directly contact the specific reporters, providing the reporters' work emails…

The publicly stated purpose of doing this was to 'put pressure on journalists'

[12]  The Authority has received several other complaints that have been submitted in a similar manner about separate broadcasts, and TVNZ has requested we decline to determine these on the same basis.

[13]  TVNZ further submitted:

TVNZ agrees that an independent and fair complaints process is an important mechanism to protect the public and freedom of expression in society, however in these cases the complaints mechanism is being used to pressure the independent news media, and target two reporters for broadcasting viewpoints or analysis which is not favorable to a specific politician and political party…

These en masse complaints have not been submitted to genuinely highlight specific standards breaches within reports, instead they are intended to 'put pressure' on reporters and news outlets not to report in a way that the complainants dislike. This misuse of the complaints process is of serious concern, and one which should be seriously considered by the BSA especially in the run up to the election next year.

[14]  TVNZ considered declining to determine ‘cut and paste complaints in the specific circumstances outlined is reasonable’.

The complainants’ responses

[15]  The complainants in this case considered otherwise. Dobson noted:

• The discussion of ‘flaws in [TVNZ’s] journalism’, or organising ‘actions online’, are not grounds to dismiss complaints without assessing their merits. Dismissing ‘complaints on this basis would obviously have a very chilling effect on public discourse.’
• This ‘is a transparent attempt [by TVNZ] to avoid being held to account to the broadcasting standards.’
• ‘If broadcasters are simply able to decide to use one complaint as a representative for many complaints, even when the complaints are written differently, then this simply seems like a cynical means to avoid assessing genuine complaints.’
• With regards to TVNZ’s concern this represented a misuse of the complaints process, Dobson objected ‘to being accused without evidence of misusing the process. TVNZ is not the sole arbiter of such things, and I think they should be expected to [stick] to presenting their side of the story rather than being judge, jury and executioner for complainants.’
• Regarding TVNZ’s concerns with next year’s election, Dobson noted ‘attempts to influence the election outcome by media should concern anyone who values democracy, and the main motivation for my original complaint was exactly that.’

[16]  Erickson considered TVNZ was defending ‘presenters who continue with their blatant bias towards the national party’ and showed misogyny and disrespect towards the Prime Minister. Erickson considered this occurred through:

• the lack of accurate reporting
• misreporting of statistics
• misleading the public by leaving out vital information, making the Labour Party seem at fault
• during interviews, interrupting and talking over Labour Ministers and otherwise being ‘totally disrespectful’.

[17]  Erickson was concerned these issues meant the public was ‘not getting the full picture’.

Our analysis

[18]  The Broadcasting Act 1989 sets out obligations on broadcasters, and this Authority, to receive and consider formal complaints alleging a breach of broadcasting standards concerning programmes broadcast.³

[19]  So long as a complaint satisfies the formal complaint criteria, and is made/referred within the required timeframe, a broadcaster/this Authority is required to consider that complaint.⁴ Every complaint referred to us must be considered on its own merits and whether a breach occurs depends on a broadcast’s content and the context in which it is shown.⁵

[20]  Section 11 of the Broadcasting Act 1989 authorises the Authority to decline to determine a complaint if the Authority considers the complaint is ‘frivolous, vexatious, or trivial’ or that ‘in all the circumstances of the complaint, the Authority should not determine the complaint’. In our guidance on the exercise of this power, we note:⁶

the policy behind section 11 is that the time and resources of the Authority, which are, in the end, sustained by the people of New Zealand, should not be wasted on having to deal with matters which objectively have no importance.

[21]  This is in line with our statutory mandate as a Crown entity to perform our functions efficiently and effectively.⁷ To that extent, we have declined to determine recent complaints regarding issues that had already been the subject of recent Authority determinations.⁸

[22]  However, as both TVNZ and Dobson recognise, an ‘independent and fair complaints process is an important mechanism to protect the public and freedom of expression in society.’ We also acknowledge, as Dobson does, advances in technology have changed how the community discusses issues, and there is value in educating and empowering others to exercise their rights. An analogy can be made to the publicising of petitions which are signed by members of the public to express support for a particular cause.

[23]  Therefore, we do not consider receiving multiple, materially identical complaints on a broadcast provides, in itself, grounds to decline to determine the complaints.

[24]  We would note however that the number of complaints does not strengthen the merits of any particular complaint or otherwise lend support to whether the particular broadcast breached the applicable broadcasting standards. Further, we consider determining these additional complaints results in inefficiencies, as a level of duplication occurs, and may lead to a delay in the determination of complaints. To that extent, we may amend our processes in the future to ensure we continue to fulfil our statutory mandate.

[25]  Complainants relying on pre-written complaints should also be aware it may be open to the broadcaster to seek a costs order against them. In the event the complaints are frivolous, vexatious, or otherwise ought not to have been made, the Authority can award costs against a complainant under section 16 of the Broadcasting Act 1989. Any such award of costs is designed to recompense a party for time spent unnecessarily dealing with matters that do not justify that time being spent, to reimburse the broadcaster for reasonable costs incurred in dealing with the complaints.⁹ This may be appropriate for multiple unmeritorious complaints (eg complaints concerning matters of personal preference or editorial discretion, as described in paragraph [35] below, rather than issues of broadcasting standards).¹⁰

[26]  Having found it would be inappropriate to decline to determine these complaints on the basis of the particular manner in which they were submitted, we go on to consider the substantive complaints.

The standards

[27]  The purpose of the accuracy standard¹¹ is to protect the public from being significantly misinformed.¹² It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

[28]  We consider the accuracy standard is most relevant to the complaints. However, we deal with the balance and fairness standards briefly at paragraph [36].

Our analysis

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

[30]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.¹³

Accuracy

[31]  The standard is concerned only with material inaccuracies. Technical or other points unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.¹⁴

[32]  The audience may be misinformed in two ways: by incorrect statements of fact within the programme; and/or by being misled by the programme. Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts’.¹⁵ Programmes may be misleading by omission, for example as a result of the way dialogue and images have been edited together.¹⁶

[33]  The complaints alleged the editing of the segment, specifically including Ardern’s comments directly after Luxon’s, misled viewers into thinking Ardern did not consider financial discipline was ‘right nor good for New Zealand’. This in turn represented Luxon in a more favourable light than Ardern.

[34]  We consider reasonable viewers would have understood, from the reporter’s preceding comments about the UK’s criticised tax cuts, the Prime Minister’s comments related to National’s proposed tax cuts, rather than ‘financial discipline’ generally. The complaints therefore concern an interpretation of the broadcast we consider unlikely to represent the practical interpretation or understanding of reasonable viewers.¹⁷ Further, we consider the broadcaster adequately addressed the complainants’ concerns.

[35]  To the extent the complainants preferred the relevant question to the Prime Minister be repeated in the broadcast, or other context included, these are matters of personal preference and editorial discretion which are not capable of being resolved by this complaints process.¹⁸

Remaining standards

[36]  We consider the remaining standards were not breached:

• Balance:¹⁹ The 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. The requirement to present significant points of view is likely to be reduced where the issue is raised only in a brief way, such as straightforward news reports.²⁰ While the issue of NZ’s response to global economic issues could constitute a controversial issue of public importance, the subject of the complaint (Labour’s perspective of National’s tax policy at the time) is not. Further, the reference to National’s tax policy was only touched on briefly at the conclusion of the report (an audience would not have expected further detail on this minor point)²¹ and other views were included both within the item (through Ardern’s comment) and in other media as referred to by TVNZ.²²
• Fairness:²³ The standard ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage. Given our above finding the editing did not mislead viewers, we do not consider Ardern was treated unfairly. We also note the threshold for finding a breach of the standard in relation to politicians, such as the Prime Minister, is higher than for someone unfamiliar with the media.²⁴

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

Susie Staley
Chair
27 February 2023

Appendix

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

1  Shane Dobson’s formal complaint to TVNZ – 30 September 2022

2  Debbie Erickson’s formal complaint to TVNZ – 30 September 2022

3  TVNZ’s decision on complaints – 28 October 2022

4  Dobson’s referral to Authority – 28 October 2022

5  Erickson’s referral to Authority – 28 October 2022

6  TVNZ’s response to referrals – 5 December 2022

7  Dobson’s final comments – 8 December 2022

8  Erickson’s final comments – 12 December 2022

9  TVNZ confirming no further comments on Dobson’s complaint – 20 December 2022

10  TVNZ confirming no further comments on Erickson’s complaint – 18 January 2023

¹ For example, Christina Huang “Willis doubles down on National's tax policy at conference” 1 News (online ed, 6 August 2022); Maiki Sherman “National accused of pulling u-turn on flagship tax policy” 1 News (online ed, 4 August 2022); “Poll: Majority opposed to cutting tax for high earners” 1 News (online ed, 15 August 2022)
² Broadcasting Act 1989, s 11
³ Broadcasting Act 1989, ss6, 8 and 10
⁴ Broadcasting Act 1989, s 9
⁵ Golden and Radio New Zealand Ltd, Decision No. 2013-028 at [8] and Howe and Torrey and TVWorks Ltd, Decision No. 2009-130 at [11]
⁶ Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Guidance: BSA power to decline to determine a complaint” <bsa.govt.nz>
⁷ Crown Entities Act 2004, s 50
⁸ See, for example, Klaassen and Discovery NZ Ltd, Decision No. 2022-101 at [7] regarding a complaint about Naked and Afraid; and Gregg and NZME Radio Ltd, Decision No. 2022-033 at [6] regarding a complaint under the discrimination and denigration standard about the treatment of protesters at the occupation at Parliament
⁹ Golden and Radio New Zealand Ltd, Decision No. 2017-073
¹⁰ Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Complaints that are unlikely to succeed” <www.bsa.govt.nz>
¹¹ Standard 6, Code of Broadcasting Standards in New Zealand
¹² Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
¹³ Introduction, Code of Broadcasting Standards in New Zealand at page 4
¹⁴ Guideline 6.2
¹⁵ Stone & Maynard and Television New Zealand Ltd, Decision No. 2022-048 at [13]
¹⁶ As above
¹⁷ See McDonald and Discovery NZ Ltd, Decision No. 2022-065 at [20] for a similar finding
¹⁸ See s 5(c) of the Broadcasting Act 1989, and Stone & Maynard and Television New Zealand Ltd, Decision No. 2022-048 at [18] for a similar finding
¹⁹ Standard 5, Code of Broadcasting Standards in New Zealand
²⁰ Guideline 5.4
²¹ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 15
²² See footnote 1
²³ Standard 8, Code of Broadcasting Standards in New Zealand
²⁴ Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Complaints that are unlikely to succeed” <www.bsa.govt.nz>