BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

A panel discussion following the Newshub Leaders Debate featured comments from political commentator, Matthew Hooton, regarding Labour’s tax policies, including that Jacinda Ardern was ‘not telling the truth about her plans for tax’ and that she was ‘refusing to tell’ New Zealanders about the party’s tax plan. The Authority did not uphold a complaint that these comments were unfounded and biased, and that Ms Ardern should have been given a right of reply. The Authority found that, in the interests of balance, Ms Ardern was given a reasonable opportunity throughout the debate and during questioning from panel members, to explain Labour’s proposed approach to a review of the tax system and to address the perception that New Zealanders would not have the opportunity to view Labour’s full policy before voting. In relation to the fairness standard, the Authority found that it is an important function of the media to comment critically on party policy and this type of speech has high value in terms of the right to freedom of expression, particularly during at election time. Party leaders should expect to be subject to robust criticism and the Authority was satisfied Mr Hooton’s comments, while critical, did not go beyond what can be expected  during the election period, nor did they result in Ms Ardern being treated unfairly.

Not Upheld: Balance, Fairness

Introduction

[1]  A panel discussion following the Newshub Leaders Debate featured comments from political commentator, Matthew Hooton, regarding Labour’s tax policies, including that Jacinda Ardern was ‘not telling the truth about her plans for tax’ and that she was ‘refusing to tell’ New Zealanders about the party’s tax plan.

[2]  Jennifer Edwards complained that Mr Hooton’s accusation, that Jacinda Ardern was not telling the truth about Labour’s tax policy, was made without evidence, and was a ‘breach of impartiality’. Ms Edwards said that Ms Ardern should have been given a right of reply.

[3]  The issues raised in Ms Edwards’ complaint are whether the broadcast breached the balance and fairness standards of the Free-to-Air Television Code of Broadcasting Practice.

[4]  The programme was broadcast at 8.30pm on 4 September 2017 on Three. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Overview – Election-related broadcast content

[5]  During an election period, the Authority may directly consider complaints about the content of ‘election programmes’ as defined in the Broadcasting Act, being programmes broadcast for political parties or candidates (usually campaign advertisements). Such complaints may be made directly to the Authority and during the election period are dealt with on a fast track basis. Complaints about the content of other broadcast programmes which may relate to the election, such as news and current affairs coverage, satire and comment, must be made to the broadcaster, but can be referred to the Authority if the complainant is dissatisfied with the response.

[6]  We received this complaint after the announcement of the results of the election. However, given the complaint concerned news and current affairs coverage of election issues, and the election continues to be a topical issue, we have determined the complaint under a fast-track process. We thank the parties involved in this matter for their timely responses to our request for submissions.

Overview – The right to freedom of expression and political speech

[7]  The starting point for our determination is to recognise the importance of the right to freedom of expression, and specifically the importance of political speech, which includes the right of broadcasters, political parties and candidates, as well as political commentators or analysts, to impart ideas and information about party policies and election matters, and the public’s right to receive that information. This is an important right in a democratic society and is particularly important in the lead up to a general election, when political parties and candidates are seeking to influence voters, and audiences are seeking information to enable them to make informed voting decisions.

[8]  We may only interfere and uphold a complaint where to do so would impose a limitation on the right which is reasonably justified in a free and democratic society.¹ In deciding whether any limitation on the right to freedom of expression is justified, we first consider the value and public interest in the broadcast, and then weigh that value against the level of actual or potential harm that might be caused by the broadcast. Given the importance of political speech and of enabling political discourse in the lead up to a general election, we will generally only interfere to limit the exercise of that speech when we consider that the harm is great.

Was the programme sufficiently balanced?

[9]  The balance standard (Standard 8) states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest. The standard exists to ensure that competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.

The parties’ submissions

[10]  Ms Edwards submitted that:

• Mr Hooton accused Ms Ardern of ‘not telling the truth’, ‘with no evidence… to back this up’. Accusing someone of lying was neither balanced nor fair, she said.
• While Ms Ardern was given sufficient opportunity to explain her party’s policy, she was not given a right of reply to this specific statement, which was then repeated.

[11]  MediaWorks submitted:

• It agreed that the issue of the Labour Party’s tax policy amounted to a controversial issue of public importance.
• While Ms Ardern was not given the opportunity to respond directly to Mr Hooton’s comments, she was given extensive opportunity within the broadcast to provide her, and Labour’s, point of view on the matter.
• Viewers therefore received sufficient information to arrive at an informed understanding of the issue.

Our analysis

[12]  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’.²

[13]  As MediaWorks has accepted, we consider that the discussion of Labour’s tax plan, and its proposal to put a tax working group in place, amounted to a controversial issue of public importance. This was an important issue for New Zealand voters in the lead up to the election, which had the potential to impact on their voting decisions.

[14]  However, we are satisfied that viewers were given a wide range of perspectives on the issue during the Newshub Leaders Debate, and in surrounding media, to enable them to make their own assessment of the issue. In our view, Mr Hooton’s comment that Ms Ardern was ‘not telling the truth’ was his perspective that Labour and Ms Ardern were not being as transparent as they could be. This was balanced by Ms Ardern’s explanation during the debate and panel discussion that the detail would be determined once the results of the working group were known. While Ms Ardern did not respond directly to Mr Hooton’s comments, she had been given extensive opportunity during the debate and subsequent panel discussion to respond to the criticism around Labour’s tax plan and the proposed working group, which formed the crux of Mr Hooton’s comments.

[15]  Viewing the debate as a whole, we consider that Ms Ardern was given a reasonable opportunity to address the perception that she was ‘refusing to tell’ New Zealanders about Labour’s tax plan. Ms Ardern was questioned directly during the debate about a proposed capital gains tax, and whether this would apply to the family bach, farm or boat. Ms Ardern responded:
The experts are going to advise us on the best thing to do to address housing affordability and the housing crisis – that is my focus. But I’m not going to pre-determine what that group does. Look, just like any business who has issues in their business and they bring in a group of experts, they let them do the work and then they assess whether or not it’s going to solve their problems, and then they act. And what I am saying is that I want to preserve the ability to act in the best interests of New Zealanders so they can own a home – that is my focus.

[16]  She was also asked by a panellist following the debate why she would not seek a fresh mandate on any recommendations from the tax working group, instead of implementing them in the first term (before New Zealanders knew what they were voting for). Ms Ardern explained that she did not want to ‘wait three years when I have solutions in front of me that will help with home ownership’. She said that New Zealanders would then have the opportunity to vote on whether Labour, following the recommendations of the tax working group, ‘did the right thing’.

[17]  The balance standard also allows for balance to be achieved over time, ‘within the period of current interest’ in relation to a particular issue.³ Labour’s tax plan and its response to criticism of the proposed working group, was covered extensively by media in the period,⁴ including Labour’s announcement on 14 September 2017 that it would delay any recommendations by the working group until after the 2020 election, ‘before anyone is affected by changes’.⁵

[18] For these reasons, we find that viewers were adequately provided with significant points of view on the issue during the programme and in other programmes within the period of current interest, and we therefore do not uphold the balance complaint.

Was any individual or organisation taking part or referred to in the broadcast treated unfairly?

[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. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.⁶

The parties’ submissions

[20]  Ms Edwards submitted that Ms Ardern should have been given the opportunity to respond to Mr Hooton’s accusation that she was ‘not telling the truth about [Labour’s] tax policy’.

[21]  MediaWorks submitted:

• It was not persuaded that Mr Hooton’s expression of his misgivings amounted to unfairness in the context of a programme ‘in which robust political analysis was an intrinsic component’.
• Scrutiny from commentators was an established and important aspect of political discourse in the media, particularly in the lead up to a general election.
• Ms Ardern was given extensive opportunity to discuss Labour’s tax policy within the broadcast, and Mr Hooton’s comments were unlikely to have caused unfair harm to Ms Ardern or to the Labour Party’s dignity and reputation. 

Our analysis

[22] As we have noted above, we consider this broadcast had high public interest and value in terms of freedom of expression and political speech. The debate, and particularly the panel discussion, amounted to robust political expression, as the panellists questioned the leaders’ statements with the aim of holding them, and their parties, to account. This is of particular importance in the lead up to a general election.

[23] It is well established that the threshold for finding a breach of the fairness standard in relation to politicians or public figures is higher than for a layperson or someone unfamiliar with the media.⁷ As a politician and at that time newly appointed Leader of the Opposition, Ms Ardern could reasonably expect a high level of scrutiny in relation to her public role, especially in the lead up to the election.

[24] While Mr Hooton’s comments were critical, we do not consider this resulted in unfairness to Ms Ardern or to the Labour Party. Ms Ardern’s and Labour’s position on tax received widespread analysis and critique, and we do not consider Mr Hooton’s comments went beyond what could be expected from robust political analysis or commentary during the election period. Mr Hooton’s comments represented an opinion open to him and one that he was entitled to express in his role as a political commentator, so long as standards were maintained. As we have found in relation to balance, Ms Ardern had multiple opportunities, both during the debate and in the election period, to comment on this issue and provide clarification. The fact that she was not explicitly invited to comment following the specific comment by Mr Hooton did not result in her being treated unfairly.

[25] We therefore do not uphold the complaint under Standard 11.

Signed for and on behalf of the Authority

Peter Radich

Chair

2 November 2017    

Appendix

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

1     Jennifer Edwards’ formal complaint – 8 September 2017
2     MediaWorks’ response to the complaint – 6 October 2017
3     Ms Edwards’ referral to the Authority – 8 October 2017
4     MediaWorks’ confirmation of no further comment – 24 October 2017

¹ See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6.

² Guideline 8a to Standard 8 – Balance

³ Commentary on the Standards, Standard 8 – Balance, Broadcasting Standards in New Zealand Codebook, page 18

⁴ See, for example: Fiscal criticism 'a cynical attempt to create a diversion' - Labour (RNZ, 4 September 2017); More confusion over Labour's tax plans (NBR, 7 September 2017); 'It clearly is damaging' - 1 News' Corin Dann on the growing criticism of Labour's uncertain tax plans (1 News,  11 September 2017); Bill English 'scaremongering' over Labour inheritance tax - Jacinda Ardern (Newshub, 12 September 2017); Election: Labour backs down on tax, will not introduce anything from working group until after 2020 election (Stuff.co.nz, 14 September 2017)

⁵ See http://www.labour.org.nz/tax

⁶ Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁷ See, for example, Holland and MediaWorks TV Ltd, Decision No. 2017-048