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 two items on 1 News reporting on a political poll and interviewing several New Zealanders on the street breached multiple broadcasting standards. The complainant alleged the proportion of people interviewed was not an accurate or balanced representation of the political mood of the country, which was unfair to political parties, and certain comments constituted discrimination and denigration, or were inaccurate or unfair. The Authority held it was not a breach of broadcasting standards to feature ‘vox-pop’ interviews in proportions that do not match current political polling, and the standards either did not apply or were not breached in relation to other issues raised by the complainant concerning the broadcast.

Not Upheld: Discrimination and Denigration, Balance, Accuracy, Fairness

The broadcast

[1]  Recent results of a 1 News Kantar Public poll were discussed during two items on 1 News, broadcast on 28 September 2022. The first item focused on the identical approval ratings of the Prime Minister and Opposition Leader, including comments from political commentators and a ‘vox-pop’ asking the public for their thoughts on each leader.

[2]  The second segment included another vox-pop asking people from various locations if they were ‘happy with the Government.’ This item was introduced as follows:

With the major political parties neck and neck in our latest 1 News Kantar Public poll, National Party Leader Christopher Luxon says 'it's time for a change.' So, we sent reporters out across the country to test his theory and ask people if they're happy with the Government.

[3]  The item included a mixture of people in support of, and against, the current Government, including the following responses:

I feel like I'm living in a gulag. We're being run, we're being dictated by comrade Ardern.

Absolutely appallingly. The handling of the pandemic, the way the health system is, the way the voting system is. Homelessness, child poverty, need I go on. 

The complaint

[4]  Shane Dobson complained the broadcast breached the discrimination and denigration, balance, accuracy and fairness standards of the Code of Broadcasting Standards in New Zealand for the following key reasons:

• ‘I counted 22 people whose views you asked for. 16 (73%) were opposed to the government, including 3 (14%) that could be classified as extremist views, and 6 (27%) expressed support for the government.’
• ‘Given where things currently sit with the popularity of each party, even using your own questionable poll as a guide, it seems extremely unlikely that these clips you played accurately reflected the responses you received.’
• ‘On the assumption that they don't, I believe this segment violated the standards on balance (as you've not been balanced in your presentation of the public mood), accuracy (obviously, as you've chosen to present an inaccurate view of the public mood), and fairness (as you've not been fair to various political groups).’
• ‘As well as this, some quite disturbing claims were made by some of the respondents, apparently without challenge. One particularly extreme and disturbing response was "I feel like I'm living in a gulag. We're being run by, we're being dictated by Comrade Ardern". This is obviously concerning and wildly inaccurate, and suggests the respondent is part of some of the more extremist/violent/misinformation-driven groups … I believe presenting this view violated the standard on discrimination and denigration.’
• ‘…one of the respondents stated "Appalling...their handling of the pandemic". Are your staff aware that New Zealand's response to the pandemic is seen as world leading? As nobody was provided an opportunity to refute this (frankly ridiculous) claim, I believe allowing this to air was another violation of the standards of balance and fairness.’

The broadcaster’s response

[5]  TVNZ did not uphold Dobson’s complaint for the following key reasons:

Discrimination and Denigration

• The comments from the interviewee regarding living in a gulag represented the man’s opinion concerning Ardern and do not concern ‘a group of people (which this standard is designed to protect)’.

Balance

• The viewpoints of individuals (and the comment of one person identified) on the performance of the Government is not a controversial issue of public importance under the standard.
• Further, balance is not determined by a stopwatch and it is sufficient significant viewpoints are adequately represented, which has occurred here with comments from all perspectives.

Accuracy

• The senior political reporter conveyed every single person supportive of the Government was included in the segment. Several people opposed to the Government were excluded due to ‘the overwhelming number of hostile responses’.
• The item was a fair portrayal of the ‘public mood about the government’.
• Other statements complained about were opinions rather than statements of fact. On this basis the accuracy standard did not apply. The reporter was entitled not to push back on these opinions, as they were expressions of each person’s point of view and their freedom of expression is protected under the New Zealand Bill of Rights Act 1990.
• ‘The comments [Dobson has] complained about, while some may consider to be, concerning and wildly inaccurate… do not reach the threshold of unlawful or “harmful expression.”’

Fairness

• ‘The BSA has previously explained 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.’¹
• Further, comments would not have left an unfairly negative impression of the government, as the interviews were personal opinions and were also countered by positive comments.

The standards

[6]  The discrimination and denigration standard² 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.

[7]  The balance standard³ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.⁴ The standard allows for balance to be achieved over time, within the ‘period of current interest’.⁵

[8]  The purpose of the accuracy standard⁶ is to protect the public from being significantly misinformed.⁷ 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.

[9]  The fairness standard⁸ protects the dignity and reputation of those featured in programmes.⁹ 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

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

[11]  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.¹⁰

Discrimination and Denigration

[12]  For the discrimination and denigration standard to apply, a broadcast must refer to a section of the community with a protected characteristic.¹¹ The complainant alleges the inclusion of the comments ‘I feel like I'm living in a gulag…we're being dictated by Comrade Ardern’ breached this standard.

[13]  The complainant does not allege any particular community has been subject to discrimination or denigration. We also do not consider this comment relates to any recognised section of the community under the standard. On this basis the standard does not apply.

Balance

[14]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to ‘news, current affairs and factual programmes’ which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.¹²

[15]  The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.¹³ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.¹⁴

[16]  This broadcast discussed public opinion of Rt Hon Jacinda Ardern and Leader of the Opposition Christopher Luxon MP in the context of new polling information. Coverage of public opinion and polls on politicians, parties and the government is generally of public importance to New Zealanders. However, the fact that the public has differing opinions of the performance of politicians is not controversial, as this is expected in any democratic society. On this basis we find the balance standard did not apply to this broadcast.

[17]  In any case, a reasonable range of views on the issue had been provided either within the broadcast or within the period of current interest, considering the following:

• The first item included similar treatment of Ardern and Luxon, reporting on their respective polling results and including responses from the public regarding each leader.
• The broadcast presented several perspectives, including comments from Ardern and Luxon themselves, two political commentators, and many brief ‘vox pop’ interviews with a large range of perspectives both opposing and in support of the government.
• As submitted by the broadcaster, balance is not achieved by a ‘stopwatch’ and the standard does not require equal time be given to each perspective.
• There is generally a significant amount of ongoing media coverage regarding various opinions of New Zealand politicians and political parties, and audiences can be expected to be aware of these views.¹⁵

[18]  The complainant also noted one interviewee made comments that they did not approve of the Government’s response to the COVID-19 pandemic, and no balancing comment was provided for this statement. This topic was not the focus of the broadcast and in the context of these reports, this isolated statement did not constitute a ‘discussion’ of the Government’s response to the COVID-19 pandemic. On this basis, the balance standard did not apply to this concern.

Accuracy

[19]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.

[20]  The requirement for factual accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.¹⁶

[21]  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.¹⁷

[22]  The complainant has two key concerns under the accuracy standard: that the mix of vox-pop interviewees did not accurately reflect public opinion of the Government in line with polling; and the comments ‘I feel like I'm living in a gulag…we're being dictated by Comrade Ardern’ were inaccurate.

[23]  Regarding the first issue, we do not consider the use of vox-pop interviews that do not ‘match’ polling of an issue constitutes a material inaccuracy. The broadcast clearly presents the polling conducted, and the interviews are used in the context of these polls. A reasonable viewer would understand the processes are independent, and that vox-pops from certain locations are not an accurate gauge of national sentiment on political issues.

[24]  Regarding the second issue, the comments made by this single interviewee are clearly their own opinion. While viewers may have their own perspectives on the validity of opinions presented in a broadcast, these are not statements of fact to which the accuracy standard applies.

Fairness

[25]  The fairness standard states broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[26]  It is well established the threshold for finding unfairness is higher for a public figure used to being the subject of robust scrutiny and regular media coverage. It is also commonplace for public figures to be criticised without it giving rise to an expectation of participation in every broadcast.¹⁸

[27]  The complainant has two concerns under the fairness standard. Firstly, that it was unfair to various political parties to present a collection of vox-pop interviews that did not match polling data, and secondly that it was unfair to allow one of these interviewees to criticise the Government’s COVID-19 response without any rebutting comment.

[28]  Political parties and the Government are used to being the subject of robust scrutiny and regular media coverage. It is commonplace for such organisations to be criticised without it giving rise to an expectation of participation in every broadcast.¹⁹ Accordingly, the threshold for finding unfairness in these circumstances is higher.

[29]  We do not consider the broadcast reached this threshold in this instance. In reaching this finding, we note:

• While the standard applies to political parties as an ‘organisation’, the complainant has not specified any singular party that was unfairly treated in the programme.
• We consider the broadcast dealt fairly with the Labour Party and Ardern, who was given the opportunity to comment and this was included in the broadcast.
• It was not unfair to Labour to include the interviewee’s comment without seeking out a refutation or rebuttal concerning this person’s opinion, and a reasonable viewer would not expect this in the context of these items (being a collection of many and varied opinions on the government and opposition).
• Viewers would not expect further responses from the Government in broadcasts such as this one, where criticism of the Government was generalised and related to many topics.

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

Susie Staley
Chair
8 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 – 29 September 2022

2  TVNZ’s initial decision – 21 October 2022

3   Dobson’s referral to the Authority – 26 October 2022

4  TVNZ confirming no further comments – 7 December 2022

¹ Referring to Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Complaints that are unlikely to succeed” <www.bsa.govt.nz>
² Standard 4, Code of Broadcasting Standards in New Zealand
³ Standard 5, Code of Broadcasting Standards in New Zealand
⁴ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 14
⁵ Guideline 5.2
⁶ Standard 6, Code of Broadcasting Standards in New Zealand
⁷ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
⁸ Standard 8, Code of Broadcasting Standards in New Zealand
⁹ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
¹⁰ Introduction, Code of Broadcasting Standards in New Zealand at page 4
¹¹ Guideline 4.1
¹² Guideline 5.1
¹³ As above
¹⁴ As above
¹⁵ Group Think “The champs and flops of NZ politics in 2022” The Spinoff (online ed, 19 December 2022); Bryce Edwards “Bryce Edwards’ Political Roundup: National can’t be allowed to sleepwalk to victory” NZ Herald (online ed, 18 January 2023); Henry Cooke “Who are Labour’s lost voters?” The Spinoff (online ed, 12 January 2023); Simon Wilson “Simon Wilson: The 2023 election is a choice between the best Government yet, and the worst” NZ Herald (online ed, 17 January 2023)
¹⁶ Guideline 6.1
¹⁷ Guideline 6.2
¹⁸ Grant & Findlay and NZME Radio Ltd, Decision No. 2021-117 at [19] citing Davis and Radio New Zealand Ltd, Decision No. 2019-061 at [31]-[32]; and Edwards and MediaWorks TV Ltd, Decision No. 2017-085 at [23]