BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
60 Minutes – “Fowl Play” – item about the battery farming of hens – allegedly unbalanced, inaccurate and unfair

Findings
Standard 4 (balance) – controversial issue of public importance – item included Egg Producers’ comment received shortly before broadcast – not upheld

Standard 5 (accuracy) – no inaccuracies – some aspects complained about were clearly opinion – not upheld

Standard 6 (fairness) – while beak trimming comment verged on unfairness, not unfair – no other unfairness – not upheld

This headnote does not form part of the decision.

Broadcast

[1] Concerns about the battery farming of hens were raised in an item entitled “Fowl Play” broadcast on 60 Minutes on TV3 at 7.30pm on 20 September 2004. Criticisms were advanced by an activist against the battery farming of hens, and by a farmer of free range hens. The item reported that although it had spoken to some battery-hen farmers, the Industry Association and the Minister and Ministry of Agriculture, it had not been possible to find a spokesperson for the battery farming industry. However, at the end of the item, the presenter read parts of a recently received letter from the Egg Producers Federation.

Complaint

[2] On behalf of the Egg Producers Federation of New Zealand Inc. (EPFNZ), the Executive Director (Michael Brooks) complained to CanWest TVWorks Ltd, the broadcaster, that the item was unbalanced, inaccurate, and unfair to the majority of farmers involved in the egg production industry in New Zealand.

[3] The complainant cited seven excerpts from the item’s transcript which, it contended, breached the standards:

(i) The “secretly taken” footage of a battery-hen farm and a description of the practices there which were said to conform to the minimum set standards was “grossly misleading” and “factually incorrect”. Breaches of Standards 4 (balance), 5 (accuracy) and 6 (fairness) were alleged and, it was argued, no proof was advanced that the conditions shown were typical of battery farms.

EPFNZ stated that industry policy was to direct all media enquiries to EPFNZ, but no formal request to visit a battery farm had been made by 60 Minutes.

As for the portrayal of beak trimming as a cruel feature of battery farming, EPFNZ said first that the practice which had humane benefits was nevertheless decreasing and, secondly, that it was carried out in barn, battery and free range farming. The practices shown in the footage were not approved under industry standard practice, and it was suggested that the item might have used an American industry training film.

EPFNZ also noted that it was incorrect to report that birds were kept in darkness for 24 hours a day, noting that they would not lay eggs if they were.

(ii) The broadcast was inaccurate and misled viewers when it said that the practice of battery farming was being banned in an increasing number of European countries.

Battery or cage egg production, EPFNZ responded, took place throughout Europe and was banned in Switzerland only. Germany had indicated an intention to ban cages, while Austria intended to ban cages which were not enriched.¹ The European Union had tentative plans to ban non-enriched cages in 2012. Pointing out that the banning proposals applied mainly to non-enriched cages, EPFNZ said that cages were the main production system throughout the world.

(iii) It was unbalanced and unfair to state that the SPCA would intervene if other animals were kept in the same conditions as hens.

EPFNZ stated that the draft Code of Animal Welfare for Layer Hens was designed to deal with the type of operation depicted in the programme but the programme did not note that the SPCA was represented on the committee developing the Code.

(iv) The reference to the draft Code in the item was inaccurate and unfair. EPFNZ explained that the draft Code had been leaked and that was the reason for not wanting to discuss it on the broadcast. Moreover, the item did not explain that the Code had been leaked or that it had been developed by independent experts.

Animal welfare regulation, EPFNZ wrote, required an approach which balanced competing demands.

(v) The activist’s comment that the Animal Welfare Act had loopholes was inaccurate as the Code was a requirement under the Act.

(vi) The statement in the programme that 60 Minutes was unable to find anyone to comment on behalf of the battery industry was unbalanced, inaccurate and unfair, as was the presenter’s statement after the item that EPFNZ had changed its mind “in the past few hours”.

The comment breached the standards, EPFNZ stated, as it “was never given the opportunity to comment on cage egg production practice in New Zealand”. An earlier request from TV3 to comment on the draft Code was declined as the Code had not yet been released by the Minister, but EPFNZ had said it would be pleased to comment after its release. EPFNZ had put TV3 on to the National Animal Welfare Advisory Committee (NAWAC), but nothing eventuated from this referral.

Attaching a copy of the letter sent to 60 Minutes shortly before the broadcast, EPFNZ said extracts had been used in a misleading way.

(vii) The broadcast of comments that battery farming was inhumane was unbalanced, inaccurate and unfair as the images featured on the programme were “a far cry” from the typical conditions of caged hens in New Zealand.

[4] By way of summary, the EPFNZ wrote:

Viewed as a whole, EPFNZ believes that the programme was hopelessly one-sided, featuring only the view of a minority of free range egg farmers, who have an obvious commercial incentive to see cage egg farms banned, and of a few animal activists who showed no command of the relevant science or research, or of the predominant overseas – or indeed New Zealand - experience.

At no stage was EPFNZ, which represents egg farmers in New Zealand, given the opportunity by TV3 to review the programme, or to comment on its factual accuracy, or provide any comment whatsoever on the shape of the egg production industry in New Zealand.

The programme blatantly misrepresented and omitted facts, and in our view showed an appalling lack of judgment for a current affairs show that is meant to pride itself on sound and balanced investigative reporting.

Standards

[5] CanWest assessed the complaint under the standards nominated by the complainant. Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice provide:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[6] CanWest assessed the complaint under the seven headings, related to excerpts from the programme, listed by the complainant. It subdivided point (i) to respond to each specific point:

(i) Secretly taken footage and description of current practices.

• CanWest noted the unsuccessful efforts it had made to obtain comment from battery farmers and said that one senior MAF inspector who viewed the footage had confirmed, off the record, that the footage was “typical” of the living conditions of layer hens on battery farms.
• EPFNZ received no request from 60 Minutes to visit a caged bird farm. CanWest explained that 60 Minutes had approached a number of farmers who were able to allow a visit independent of EPFNZ. In view of EPFNZ’s refusal to take part, 60 Minutes had concluded it would be unlikely to help to arrange access.
• Portrayal of beak trimming as cruel. CanWest said the item did not contend that beak trimming was cruel.
• Source of beak trimming footage. TV3 news library was the source and, CanWest said, egg farmers confirmed that the machinery shown was used in New Zealand.
• · Birds kept in darkness for 24 hours a day. The item, said CanWest, advised that birds were kept in cramped conditions for 24 hours a day, and much of the time was in darkness. Birds were often kept in darkness, CanWest added, as this kept the birds calmer.

As for the complaint that point (i) meant that the item was unbalanced, CanWest accepted that the item dealt with a controversial issue of public importance. It contended that egg producers were given “generous opportunities” to present their point of view, and efforts were made to include the “scant material” received a few hours before broadcast. CanWest considered that the item had been balanced, accurate and fair.

(ii) Practices in Europe

CanWest considered that comment about banning in an increasing number of European countries was not inaccurate in view of the plans in Finland, Austria and Germany and the proposals from the European Union.

(iii) Domestic Conditions would lead to SPCA action

CanWest maintained that the programme did explain the nature of the draft Code which, it said proposed “nothing more than increasing cage sizes sometime in the future”. The standards were not contravened.

(iv) Leaked Draft Code

In reply to the complaint, CanWest said that the item described it as a leaked draft Code which EPFNZ declined to discuss, and that the draft was a government initiative. Again, no breaches were found.

(v) Loopholes in the Act

Arguing that the programme did not suggest that the Code was a loophole, CanWest noted that the comment about the Act was the expression of an opinion by an activist which did not breach the accuracy requirement.

(vi) Comment by egg producers

CanWest recorded the opportunities for comment given by 60 Minutes to EPFNZ. It said that Mr Brooks of EPFNZ had declined to speak about the Code specifically or battery farming generally pending the official release of the Code. The back-announce from the presenter, it continued, quoted directly from EPFNZ’s letter. No standards breaches were noted.

(vii) Inhumane comment

The comment was made, CanWest noted, by a model involved in a photo shoot and was clearly her opinion. The standards were not transgressed.

[7] In response to EPFNZ’s overall comment, CanWest acknowledged that the item advanced the views of an activist and a free-range egg farmer. Every effort had been made to obtain a response from the battery farming industry, but no one had been willing to be interviewed.

[8] Furthermore, CanWest noted, EPFNZ had been asked to participate in a follow-up programme, but had chosen to pursue a complaint instead.

[9] Declining to uphold any aspect of the complaint, CanWest referred to the “freedom of expression” protected by the New Zealand Bill of Rights Act 1990.

Referral to the Authority

[10] Dissatisfied with CanWest’s decision, Mr Brooks on behalf of the EPFNZ referred it to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989. The format of the referral followed the points listed above in paras [3] and [6].

(i) Secretly taken footage and description of current practices:

• EPFNZ disputed CanWest’s statement that the conditions shown were “typical” and argued that CanWest provided little information on which it based that assertion. The comments from the MAF official (named by EPFNZ) were unreliable as he only visited farms complained about and his view of what was “typical” was not balanced.
• There was no justification to assume that because EPFNZ had declined to take part in the programme because of its focus on the draft Code, that it would not arrange access to egg farms.
• Beak trimming was portrayed as a feature of battery farming, while it was not acknowledged that it also occurred in other production systems.
• EPFNZ believed that the beak trimming footage came from America, and that should have been acknowledged in the broadcast.
• EPFNZ disagreed that sheds were “often kept in darkness” and that point should have been acknowledged.

(ii) Practices in Europe

“Cages”, EPFNZ wrote, “are not being banned in Europe”. Enriched cages were proposed to replace current cages in 2012 and the item was misleading and incorrect on this point. Further, it was not acknowledged that the ban in Switzerland had led to the movement of larger hen farms to neighbouring countries.

(iii) Domestic Conditions could lead to SPCA action

The programme implied, without substance, that the current practices were illegal. It also failed to acknowledge that efforts were being made to improve practices.

(iv) Leaked draft Code

Arguing that it was perfectly understandable why it would not want to comment on the draft Code before its release, EPFNZ said the item should have pointed to the animal welfare expertise involved in the development of the Code.

(v) Loopholes in the Act

The item, EPFNZ maintained, implied incorrectly that the Code was a loophole in the Act.

(vi) Comment by egg producers

Mr Brooks said he did not recall 60 Minutes’ offer of an interview which “specifically avoided” the draft Code. EPFNZ contended that the one phone call of substance did not amount to a reasonable effort to obtain the caged bird industry’s response.

[11] In summary, EPFNZ described the item as “hopelessly one-sided” and one which “blatantly misrepresented and omitted facts”.

[12] EPFNZ submitted that the Authority obtain from TV3 all the material gathered for making the programme and, in light of the differences of opinion as to whether the standards had been contravened, hold a hearing.

Broadcaster’s Response to the Authority

[13] CanWest made two relevant points:

• The views attributed to an unidentified MAF official were typical of the views held by people in that position.
• The item’s producer confirmed that EPFNZ’s Mr Brooks had been offered an interview which did not mention the draft Code.

Complainant’s Final Comment

[14] On behalf of EPFNZ, Mr Brooks made the following comments in reply:

• In view of the named MAF official’s position with enforcement, the “few poultry farms” that he had visited were not typical and his perspective was not adequately explained during the programme.
• Repeating his comment that he had not been offered an interview avoiding a mention of the draft Code, Mr Brooks stated that such an offer would have “made no sense” as the programme dealt with the leaked Layer Hen Welfare Code.

Authority's Determination

[15] The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Procedural issues

[16] In its detailed complaint, EPFNZ asked the Authority, first, to request from CanWest all the material which had been gathered for the item but not used, and secondly, to hold a hearing.

[17] The Authority declines both requests. EPFNZ did not advance a reason for the first request and the complaint did not allege that the item had been edited in a way that misrepresented the material gathered. In view of the comprehensive manner in which the parties have dealt with the issues in the correspondence, the Authority does not consider that it is necessary to depart from its usual procedure of determining complaints “on the papers”.

Balance

[18] EPFNZ raised seven specific points and contended that each one had breached one or more of the standards relating to balance, fairness and accuracy. The requirement for balance applies to a programme which deals with a controversial issue of public importance. The Authority agrees with the broadcaster that battery-hen farming, and the development of the Animal Welfare Code for Layer Hens, are such issues, and thus that the programme required balance.

[19] The essence of the balance complaint was that the programme did not canvass the views of the battery-hen industry. The complainant focused on the statement in the item that it had not been possible to find anyone to speak for the battery-hen industry. This statement was followed at the end of the item by a back-announce when the presenter summarised a letter received from EPFNZ “in the past few hours”.

[20] EPFNZ said that it had declined to be interviewed on the draft Code and, contrary to the broadcaster’s statement, said that it had not been offered an interview which did not refer to the Code. Accordingly, it said, in the absence of industry comment, the item was unbalanced.

[21] The Authority does not uphold this aspect of the complaint. The Authority notes that EPFNZ was given, but declined, an opportunity to respond. Furthermore, it considers that the letter from EPFNZ received on the day of broadcast was summarised fairly in the back-announce. Broadcasting standards require that an opportunity to respond be given; failure for whatever reason to take it up does not necessarily mean that the broadcast will not proceed.

[22] A decision by an interested party not to participate does not absolve a broadcaster of the responsibility for ensuring balance. However, in the present case the Authority considers that the programme gave a reasonable summary of the points made in the complainant’s letter. The Authority does not agree with the complainant that the broadcaster’s offer of an interview avoiding the mention of the draft Code would have made “no sense’. While it acknowledges that there may be times when an interested party or individual may have a legitimate reason preventing them from making any comment, the Authority is of the view that this was not the case on this occasion. Furthermore, the Authority notes that the complainant declined offers from the broadcaster to participate in a follow-up programme. Such a programme would have given the complainant an opportunity to present the industry’s viewpoint within the period of current interest, as required by the standard.

[23] The complainant has also referred to a number of specific points which it considered lacked balance. In response, the Authority notes that balance is required only in relation to controversial issues of public importance discussed in a programme. Accordingly, the Authority has addressed the complainant’s allegations of imbalance only in relation to the over-arching controversial issue of battery-hen farming. It leaves the many individual particulars cited by the complainant to be addressed as issues of fairness or accuracy.

[24] The complaint that the item was unbalanced is not upheld.

Fairness and Accuracy

1. Secretly taken footage, beak trimming, darkness

[25] In the first of the remaining six specific points of complaint, the complainant focused on the footage of a battery-hen farm. The footage, it wrote, did not show a typical farm and, it added, 60 Minutes had not made a formal request to visit a battery farm. The complainant also stated that the beak trimming shown was neither a cruel practice, nor confined to battery farms. Furthermore, the item was inaccurate to state that birds were kept in darkness for 24 hours per day, pointing out that they would not lay eggs if they were. In addition to the allegation that the item was unbalanced on this point (dealt with above), EPFNZ contended that the item was inaccurate and unfair on these matters.

[26] After considering at some length the arguments presented by the parties, the Authority does not uphold any of these matters. It notes that EPFNZ, while it had the opportunity to explain why the footage shown was not typical, did not do so. Rather, it focused on the competence of the unnamed MAF official (who it named) to assess whether the footage was typical. Because this official’s job was enforcement against sub-standard farms, EPFNZ said, he was unable to assess whether the footage shown was typical or not.

[27] The Authority does not accept this argument. It considers that the official, while he may deal primarily with substandard farms, would inevitably have a general appreciation of industry standards. Given the absence of substantive evidence to the contrary from EPFNZ, the Authority accepts as accurate the statement that the footage was typical.

[28] Furthermore, in view of the fact that EPFNZ declined to be interviewed, the Authority accepts that 60 Minutes was not required to approach EPFNZ to arrange a visit to a battery farm, especially as the reporter had already approached individual farmers with no success.

[29] In regard to the beak trimming footage, the Authority agrees with the broadcaster that the item did not describe the practice as cruel. Nevertheless, it also notes that the item did not advise that it is a practice which also occurs in barn and free-range hen farming. While there may have been an implication that the practice was confined to battery farming, the Authority finds that the implication was not sufficiently strong to justify the conclusion that the item was inaccurate or unfair on that point. In the absence of any evidence from the complainant that the machinery shown for trimming beaks is not used in New Zealand, the Authority finds that the source of the film of the machinery does not raise any issue of broadcasting standards.

[30] The last part of EPFNZ’s first complaint related to the statement in the item that “there is nothing wrong with keeping hens in cramped conditions like this often in darkness for 24 hours a day everyday”. The Authority acknowledges that the statement is ambiguous and one possible meaning is that hens are kept in darkness for 24 hours a day. However, on listening to the tape and the punctuation added, it is apparent that the phrase “often in darkness” does not refer to “24 hours a day”. The meaning of the statement, in the view of the Authority, is that the hens are kept “in cramped conditions like this, often in darkness, for 24 hours a day”; so that the “24 hours a day” refers to the cramped conditions rather than to the darkness. Accordingly, the Authority does not consider the statement to be inaccurate.

2. Practice in Europe

[31] The second aspect of the complaint contended that the item was inaccurate when it reported that “a practice banned in an increasing number of countries in Europe is condoned here”.

[32] In view of the information provided by the broadcaster about the increasing restrictions in Europe, the Authority considers that the statement was not inaccurate. Issues relating to the economics of battery farming in different countries as a result of the changes which EPFNZ referred to, were not dealt with in the broadcast.

3. SPCA involvement

[33] EPFNZ also alleged that the following statement was unfair as well as being unbalanced:
If domestic animals or even farm animals were discovered kept in such conditions the RNZSPCA would doubtless be barging the door down.

[34] The Authority determines that this statement did not breach the standards. The item dealt with the conditions on battery-hen farms and pointed out that the conditions on some raised questions of possible inhumanity, but did not suggest that they were illegal. Neither was it necessary, in the Authority’s view, for the item to record that the SPCA had been involved in the development of the new Animal Welfare Code. Involvement does not necessarily amount to endorsement of the Code.

4. “Leaked” Code

[35] EPFNZ complained that the item was inaccurate and unfair in referring to a leaked copy of the draft Code without explaining that the fact that it was leaked was why EPFNZ did not want to discuss it. The Authority considers that in referring to a leaked draft Code in respect of which EPFNZ had declined to comment, the item was accurate. In all the circumstances, it considers that no element of unfairness arises from the omission of an explicit statement about EPFNZ’s reason for declining to comment.

5. Loopholes in the Act

[36] An activist expressed an opinion that there were loopholes in the Animal Welfare Act. The Authority considers that the comment was clearly his opinion and did not breach the requirement for factual accuracy.

6. Battery farming is “inhumane”

[37] The final matter raised in the complaint dealt with a comment made by a model participating in an advertisement opposing battery farming. What was clearly an expression of her opinion did not breach the standards relating to fairness or accuracy.

Conclusion

[38] The Authority observes that 60 Minutes presented a programme on a matter of public importance and considers that the absence of the battery-hen industry’s perspective was largely an outcome of EPFNZ’s refusal to participate. The views it did communicate to the producers were broadcast. The Authority declines to uphold any aspect of the complaint.

For the reasons given above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
31 March 2005

Appendix

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

1. Egg Producers Federation of New Zealand Inc’s (EPFNZ) complaint to CanWest TVWorks Ltd –
   15 October 2004
2. EPFNZ’s letter to CanWest – 18 October 2004
3. CanWest’s initial response to EPFNZ – 19 October 2004
4. EPFNZ’s further letter to CanWest – 26 October 2004
5. CanWest’s further response – 1 November 2004
6. CanWest’s response to the formal complaint – 24 November 2004
7. EPFNZ’s referral to the Authority – 6 December 2004
8. CanWest’s response to the Authority – 14 February 2005
9. EPFNZ’s final comment – 25 February 2005

¹Enriched cages are defined in the Animal Welfare (Layer Hens) Code of Welfare 2005 as: Cages that typically provide more space for birds, (i.e. more than 550 sq.cm per bird) and typically provide perches, a nest box and a dust bathing area.