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 that an item on Newshub Nation about the New Conservative Party breached broadcasting standards. The Authority found that the New Conservative Party was not a recognised section of the community for the purposes of the discrimination and denigration standard, and that the accuracy standard did not apply as the complaint concerned matters of analysis and opinion rather than statements of fact. The Authority also found that the New Conservative Party and Party members were not treated unfairly, noting that the scrutiny of political parties is a vital component of freedom of expression, and is of particular importance in the lead-up to a general election.

Not Upheld: Fairness, Accuracy, Discrimination and Denigration

The broadcast

[1]  During Newshub Nation, broadcast at 9.30am on 11 July 2020, Simon Shepherd introduced, and Corazon Miller presented, an item on the New Conservative Party. In the introduction, Mr Shepherd said:

The New Conservative Party says it stands for free speech and traditional family values, but its ideas / some of its candidates have drawn comparisons to the far-right. So who’s behind the New Conservative Party and what drives them? Corazon Miller investigates…

[2]  After a clip of the party’s deputy-leader Elliot Ikilei speaking at a public rally, Ms Miller said:

The conservative vein that gave rise to Trump, Brexit, far-right nationalism in Europe, is here, angry with what it sees as a slide to the left in New Zealand politics and society.

[3]  After brief segments from interviews with three prospective supporters of the party, in which they explained their political priorities including sovereignty, free speech, and the right to possess firearms, Ms Miller went on to say:

The party emerged from Colin Craig’s Conservatives. Its rhetoric has started to draw comparisons to white nationalism.

[4]  The item played a clip of a rally speaker, who offered the question:

Are New Zealanders going down the exact same path of importing in an alien culture that refuses to integrate?

[5]  Segments were shown of an interview with Dr Chris Wilson, a lecturer at the University of Auckland on Conflict and Terrorism, who said:

So these ideas are actually very dangerous, and they are motivating a number of people around the world, young white men, to – in the most extreme cases – attack people of colour.

[6]  The item then played the following segments from Ms Miller’s interview with Leighton Baker, the leader of the New Conservative Party:

LB:       I mean, we’ve been labelled all sorts of things, but me myself, I’m a worker, I’m a tax-payer, I’m a father, I’m a grandfather, I’m a centrist. We get painted that we’re far-right, I don’t see how any of that is far-right.

            …

CM:     The New Conservative Party, its values, seems to have resonated with people that I would describe as white nationalist. Is this something that concerns you?

LB:       Look, we can’t control what people adhere to. Like, we’ve been really clear on what we’re saying, we’ve been going around New Zealand saying what we’re saying, so we can’t actually control what other people say.

[7]  Clips were included of Deputy Leader Elliot Ikilei stating:

• ‘The greatest culture in the world is Western Culture. It is the one culture where freedom of speech is the cornerstone of that culture.’
• ‘We would get rid of Māori seats. We will get rid of anything that changes Māori into something special and high up.’

[8]  Later in the item, Ms Miller identified another of the party’s candidates, describing him as a ‘right-wing activist’ and ‘conservative Christian’ who ‘made headlines in January when police raided his home in search of illegal firearms’. She went on to say of him:

In 2019, he tried to find an alternative venue for alt-right speakers Lauren Southern and Stefan Molyneux. He has said declining western populations are being replenished by migrants, a theory that [the Christchurch shooter] referred to in his manifesto. But he condemns the shooter’s final act of terror.

[9]  The item then crossed again to a segment from Dr Wilson, who said:

So it is very dangerous, that sort of rhetoric, and coming from a political party, coming from people who are in positions of power. The idea of a replacement is also ridiculous, particularly in the New Zealand context where the European population is about 70% of the New Zealand population.

[10]  Later again in the item, Ms Miller stated that, ‘The Party is also anti-abortion’, and a segment from an interview with Prof Jennifer Curtin, a professor in politics at the University of Auckland, was subsequently played, in which she said:

So, put abortion back into the Crimes Act, which would be of concern for many New Zealanders I think, given we’ve only just got it out of the Crimes Act.

[11]  The item also included segments from an interview with Prof Paul Spoonley, professor in sociology at Massey University, who said:

Well I think the New Conservatives feel that they are in a war around identity, so they tend to be deeply sceptical of a lot of mainstream institutions, and you’ll see conspiracy theories coming thorough… Definitely to the right, and I would say as far right as we get in terms of mainstream political parties.

[12]  In considering this complaint, the members of the Authority have watched a recording of the broadcast, and have read the correspondence listed in the Appendix.

The complaint

[13]  John Drinnan complained that the profiling of the New Conservative Party in this broadcast was not contextually accurate or fair, and that the broadcast breached the discrimination and denigration, accuracy, and fairness standards, for the following reasons:

Discrimination and denigration

• The broadcast alleged links between the New Conservative Party and a white supremacist movement based on no more than opinion.

Accuracy

• The broadcast relied on an assumption that the party is linked to a white supremacist agenda, supported by an unrepresentative selection of academics on the subject.
• There was balancing material in the broadcast, but the broadcaster appears to have relied on personal bias and biased sources.

Fairness

• Newshub Nation claimed as fact that New Zealand has a significant white supremacist movement, and that New Conservatives are part of it.
• The report quoted Deputy Leader Elliot Ikilei about the need for people to be able to speak out but did not point out that these points were made at a free speech rally.

[14]  In his referral to the Authority, Mr Drinnan sought to also refer his complaint under the balance standard. Pursuant to section 8(1B) of the Broadcasting Act 1989, we are only able to consider his complaint under the standard(s) raised in the original complaint to the broadcaster. The High Court has clarified that in certain circumstances:¹

…it is permissible [for the Authority] to fill gaps… or cross boundaries between Code standards…but only if these things can be done within the wording, reasonably interpreted, of the original complaint, and if a proper consideration of the complaint makes that approach reasonably necessary…

[15]  In these circumstances, noting in particular Mr Drinnan’s statement in the original complaint that “I accept that there was balancing material in the item”, we do not consider the balance standard can reasonably be implied into the original complaint. For that reason, we have considered Mr Drinnan’s complaint under the discrimination and denigration, accuracy and fairness standards only.

The broadcaster’s response

[16]  MediaWorks did not identify any breaches of the discrimination and denigration, accuracy, or fairness standards for the following reasons:

Discrimination and denigration

• The broadcast was a serious commentary, which could be described as a ‘sober analysis’ of the New Conservative Party’s priorities and supporters.
• The party has not contested an election before, and in this context, it was appropriate to examine whether or not its supporters could be described as ‘far-right’.
• The broadcast did not contain a high level of condemnation, nor did it amount to hate speech or a sustained attack, so as to meet the high threshold required to breach this standard.

Accuracy

• The accuracy standard does not apply to expressions of opinion.

Fairness

• The New Conservative Party and all contributors to the broadcast were treated fairly and given a fair opportunity to present their viewpoints.

The relevant standards

[17]  The discrimination and denigration standard (Standard 6) provides protection against broadcasts which encourage 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.²

[18]  The accuracy standard (Standard 9) 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 being significantly misinformed.³

[19]  The fairness standard (Standard 11) states that 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.⁴

Our findings

[20]  We have determined this complaint under our Election 2020 fast-track procedure,⁵ on the basis it relates to matters that may influence a vote in the pending general election. We thank the parties involved in this matter for their timely responses to our requests for submissions.

[21]  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. Our task is to weigh the value of and public interest in the broadcast complained about, against the level of actual or potential harm that may have been caused by the broadcast, with reference to the objectives of the standards described above. We may only uphold a complaint where the corresponding limitation on the right to freedom of expression is reasonable and justified.

[22]  Looking first at the broadcast, we note the item on the New Conservative Party’s ideologies, candidates and supporters, and its presentation of comparisons drawn between the party and the far-right political movement, amounted to political expression, which carried a level of public interest and value in the lead-up to the 2020 general election.  

[23]  The harm alleged in this case is the broadcast of an unfounded assumption as fact, based on personal bias and biased sources, which undermined a fair and accurate assessment of the New Conservative Party in the lead up to the General Election. For the reasons outlined below, we have not found actual or potential harm arising from the broadcast that justifies regulatory intervention or limiting the right to freedom of expression on this occasion.

Discrimination and denigration

[24]  The discrimination and denigration standard only applies to recognised sections of the community, which are derived from the grounds for discrimination listed in the Human Rights Act 1993. It does not apply to individuals and organisations, which are dealt with under the fairness standard.⁶ Therefore the first question is whether the broadcast commented on a recognised section of the community for the purposes of Standard 6.

[25]  In our view, Mr Drinnan’s concerns relate to what he considered to be a biased and unsubstantiated depiction of the New Conservative Party and its stance as an organisation, rather than any recognised section of the community. These concerns are better addressed as a matter of fairness to the party, which we consider at paragraphs [32] – [36] below.

[26]  Accordingly we do not uphold the complaint under the discrimination and denigration standard.

Accuracy

[27]  Mr Drinnan’s complaint under this standard centred around an ‘allegation of [the New Conservative Party’s] links to white supremacy’ based only on opinion and the views of academics.

[28]  The accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.⁷ A fact is something which can be proven to be right or wrong, while an opinion is someone’s view. It is contestable, and others may hold a different view.⁸ 

[29]  We note that neither the term ‘white supremacy’ nor ‘white supremacists’ was used in the broadcast, although the broadcast did include comments linking the party to traditionally conservative policies, the ‘alt right’, ‘white nationalists’ and ‘far right’, all terms which we acknowledge may have similar implications.

[30]  However, in the context, we consider these comments were distinguishable as analysis or opinion rather than statements of fact, meaning the accuracy standard did not apply. We note in particular the following factors which signalled the nature of the views expressed:

• Ms Miller referred to party rhetoric starting ‘to draw comparisons to white nationalism’, language which suggested analysis rather than fact.
• Dr Wilson’s statements that certain ideas were very dangerous, and that they were motivating young white men to attack people of colour, were not statements of fact capable of being proven right or wrong, but rather statements of opinion based on analysis and speculation.
• Prof Curtin’s statement that putting abortion back into the Crimes Act would be ‘of concern’ for many New Zealanders was an opinion based on an analysis of recent events, qualified by the expression ‘I think’.
• Prof Spoonley’s comments were also prefaced by ‘I think’ and ‘I would say’, signalling they were his views.

[31]  For these reasons, we do not uphold the complaint under the accuracy standard.

Fairness

[32]  The fairness standard applies to individuals or organisations participating or referred to in a broadcast. A consideration of what is fair will depend on the nature of the programme and the context (including the public significance of the broadcast).⁹ If a person or organisation referred to or portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment for the programme, before the broadcast.¹⁰ Edited excerpts should fairly reflect the tenor of the overall events or views expressed.¹¹

[33]  Mr Drinnan’s complaint under this standard is that the broadcast:

• claimed the New Conservative Party is part of a ‘white supremacist movement’
• misquoted Deputy Leader Elliot Ikilei about the need for people to be able to speak out, and did not point out that these views were expressed at a free speech rally.

[34]  We have considered the treatment of the party and Mr Ikilei, in light of the following factors:

• The party is running for election and has not contested an election before, so it could reasonably expect that its members and its policies would be scrutinised.
• The leader of the party, Mr Baker, was interviewed for the broadcast and given a fair and reasonable opportunity to respond to concerns about his party’s ideology and present the party’s position.
• Mr Baker’s response was presented in the broadcast.
• Mr Ikilei’s views on policy had been publicly expressed and were presented in the broadcast in segments that, in our view, sufficiently identified the context. We do not consider that adding commentary to record that Mr Ikilei’s views were expressed at a free speech rally would have materially changed the impact of his statements or altered the audience’s impression of him.

[35]  On viewing the broadcast and taking into account the above factors, overall we find the New Conservative Party was treated fairly. The broadcast was an example of ordinary political coverage, and reporting regarding political parties is a vital component of freedom of expression, particularly in the lead-up to a general election.

[36]  We therefore do not uphold the complaint under the fairness standard.

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

Judge Bill Hastings

Chair
14 September 2020

Appendix

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

1  John Drinnan’s complaint to MediaWorks – 11 July 2020

2  MediaWorks’ response to Mr Drinnan – 10 August 2020

3  Mr Drinnan’s referral to the BSA – 17 August 2020

4  MediaWorks’ further comments – 19 August 2020

5  Mr Drinnan’s final comments – 19 August 2020

6  MediaWorks’ confirmation of no further comments – 25 August 2020

¹ See Attorney General of Samoa v TVWorks Limited, CIV-2011-485-1110 at [62]
² Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
³ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁴ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁵ <https://www.bsa.govt.nz/assets/20200821-BSA-Fast-Track-Process-for-Election-Programmes.pdf>
⁶ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16.
⁷ Guideline 9a
⁸ Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 64
⁹ Guideline 11a
¹⁰ Guideline 11d
¹¹ Guideline 11e