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 comments made by a political panellist on Nine to Noon, including that National Party public meetings were ‘full of angry racists saying angry racist things’ breached broadcasting standards. While the Authority acknowledged the statement was inflammatory, it found the statements were hyperbole and political comment and opinion, and they were challenged immediately by another panellist – meaning listeners were unlikely to be misled, and given sufficient viewpoints to form their own opinions.

Not Upheld: Accuracy, Balance

The broadcast

[1]  On RNZ’s Nine to Noon broadcast on 17 July 2023, host Susie Ferguson discussed various political topics in the lead up to the election, with panellists Neale Jones (former chief of staff to Prime Minister Jacinda Ardern, and prior to that, Andrew Little) and Brigitte Morten (former senior ministerial adviser to the previous National Party, and National Party member).

[2]  The discussion was 23 minutes long. The comments at issue in this complaint were made in the last three minutes, in response to a question from Ferguson to Morten about National’s position on the use of te reo Māori for the names of government agencies. Morten remarked it was a ‘distraction issue’, which Labour was using to ‘attack’ National, and discussed a video from a recent National Party meeting where Christopher Luxon’s response to a question on te reo Māori, had been edited to make Luxon look more supportive of the questioner’s position than in the real response. Jones responding to Morten’s comments stated:

Jones:            Look, I mean, the most recent debacle aside, I do think Luxon has struggled to position himself coherently on this issue. I had assumed that afterJudith Collins kind of pulled the ‘Don Brash’ on race issues, that Luxon would follow Key and just say, we're not doing that, we're going to focus on the economy. He didn't. He didn't go race-baiting like Judith Collins, but neither did he draw a line under it like Key did. He just kind of trotted this middle path where he kind of walked the line. And, you know, he’s got these public meetings full of angry racists, saying angry racist things.

Morten:           No, I don’t think that is true. I think that's a massive over-exaggeration. I've been to a number of public meetings. They are not full of angry racists.

Jones:            But I'm saying repeatedly, what you're hearing fromthese meetings is vox pops from people saying racist things from the floor, and that suggests they feel that that is a welcome environment for that kind of rhetoric. You don't see that at Labour Party meetings or Green Party meetings. And so I think Luxon has kind of built this rod for his own back in that he hasn't been clear like John Key was, that we're just not going to do this race thing, we’re going to focus on the economy. And so he continues to find himself in these situations where he's attracted and he's sort of, you know, given a wink to some of these sections of the population. And I think he just needs to be much clearer that he's not going to engage in their politics.

The complaint

[3]  In his initial complaint to RNZ, Steve Ellis complained that Jones described ‘all those participating in National Party political meetings as racists’ and that:

• The host took no exception to Jones’ statement that National Party public meetings were ‘full of angry racists’, or Jones’ later statement that you wouldn’t see such ‘outbursts’ at a Labour or Green Party meeting.
• Jones’ comments were ‘biased and unbalanced’.
• The video referenced [where Luxon responded to a question on whether government department names should be changed back to English] had been ‘doctored’, and this was a ‘fact known to Jones at the time’.

[4]  On referral to the Authority, the complainant specified the accuracy, balance, and discrimination and denigration standards as being breached, adding:

Accuracy

• ‘Claims were made in this broadcast that were inaccurate in relation to material points of fact.’ Namely, that all attendees at National Party public meetings were ‘angry racists’, which is ‘wrong’ and ‘patently untrue’. ‘These comments from Mr Jones were not merely his observations, as [RNZ] would have it. Mr Jones owned the statement “angry racists”.’

Balance

• ‘Clearly the statement was biased and unbalanced as was instanced by Mr Jones’ subsequent characterisation of public meetings held by Labour and The Greens.’
• ‘Whilst Ms Morten, speaking from “the right”, correctly objected to the comment “angry racists”, [Ferguson] made no attempt to have Mr Jones recall his comments. Ms Ferguson effectively green flagged Mr Jones to proceed and for him to then state that such outbursts, as purported to have been stated at the Nelson Meeting, would never be heard at Labour or Green Party Meetings. There were no attempts by either Ms Ferguson or Mr Jones to bring balance to the conversation.’

Discrimination and Denigration

• The comments from Mr Jones saying those participating in National Party Public Meetings were “angry racists” were discriminatory and denigrated that community of people. The comments were a clear, concise and damning condemnation of National Party followers.

Jurisdiction – standards raised

[5]  Under section 8(1B) of the Act, the Authority is only able to consider complaints under the standard(s) raised in the original complaint to the broadcaster. However, in limited circumstances, the Authority can consider standards not raised in the original complaint where it can be reasonably implied into the wording, and where it is reasonably necessary in order to properly consider the complaint.¹

[6]  Therefore, the first question for the Authority is what standards were raised in the initial complaint – taking into account the implications from the wording used (since the complainant did not select any specific standards in their initial complaint to RNZ).

[7]  We consider the balance and accuracy standards are reasonably able to be read into the complainant’s initial complaint to RNZ, based on the description of Jones’ comment as ‘biased and unbalanced’ and in complaining that Jones’ was basing his arguments on a video he knew to be ‘doctored’.

[8]  We do not consider the discrimination and denigration standard can reasonably be implied into the wording of the original complaint, which focused on the comments being ‘biased and unbalanced’ and going ‘unchallenged’. It did not identify any section of the community or allege any group had been denigrated or discriminated against. That standard is therefore not addressed in this decision.

The broadcaster’s response

[9]  RNZ did not uphold the complaint for the following reasons:

• Jones ‘sought to differentiate Christopher Luxon’s approach to divisive racial matters from that of former National Party leaders Judith Collins and John Key. He observed that National supporters felt comfortable saying racist things from the floor in public meetings in a way that Labour supporters did not. While Brigitte Morten disagreed with Neale Jones about his characterisation of “angry racists”, [the] complaint appears to suggest that RNZ ought to have prevented Mr Jones from saying what he thinks about racist “dog whistling” by political leaders.’
• ‘[RNZ] point out that both Mr Jones and Ms Morten are free to express their political views in this forum and that such freedom of expression is guaranteed by the New Zealand Bill of Rights Act.’

The standards

[10]  The purpose of the accuracy standard² is to protect the public from being significantly misinformed.³ 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.

[11]  The balance standard⁴ 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.⁵

Our analysis

[12]  We have listened to the relevant segment of the broadcast and read the correspondence listed in the Appendix.

[13]  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 and public discourse in the lead-up to the general election. This includes the right of broadcasters and commentators to impart ideas and information, and the public’s right to receive that information.

[14]  Our task is to weigh the right to freedom of expression, and the public interest and value in the broadcast, against any harm potentially caused by the broadcast. We may only intervene where the resulting restriction on the right to freedom of expression, and in this case political expression, is demonstrably reasonable and justified in a free and democratic society.⁶

[15]  The Authority’s Election Complaints Fast-Track Process contemplates fast-tracking of ‘programmes that relate to election or referenda matters that may influence a vote’.⁷ The programme which is the subject of this complaint, involving routine challenge and discussion regarding party policies or practices, was determined not to meet this requirement. Accordingly, this complaint was processed under our standard procedures.

Accuracy

[16]  Guideline 6.1 to the accuracy standard states that the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion. However, broadcasters should still make reasonable efforts to ensure analysis, comment or opinion is not materially misleading with respect to any facts referred to, or upon which the analysis, comment or opinion is based.⁸

[17]  In determining whether a statement is fact or opinion, the following factors are relevant:⁹

• the language used
• the type of programme
• the role or reputation of the person speaking
• the subject matter
• whether the statement is attributed to someone
• whether evidence or proof is provided

[18]  We acknowledge Jones’ comment ‘[Luxon’s] got these public meetings full of angry racists, saying angry racist things’ was inflammatory. However, having regard to the above factors, we consider most listeners would have understood Jones’ comments to be hyperbole and exaggeration, and distinguishable as comment and opinion. Jones’ comments (‘angry racists’) required value judgement on the motivations behind questions raised by the public at various political party meetings, rather than being statements of fact easily proved or disproved. They were made as part of robust political panel discussion, ahead of the upcoming general election. Accordingly, the accuracy standard does not apply.

[19]  Even if Jones’ comment that ‘[Luxon’s] got these public meetings full of angry racists, saying angry racist things’ was considered a statement of fact, it was challenged immediately by the other panellist, meaning that listeners were able to make up their own minds as to the validity of the statement, and were unlikely to be misled.

[20]  Finally, in regard to the complainant’s concerns that Jones knew the video referenced to have been edited, we note Jones’ comments did not relate to Luxon’s edited response, but rather to the questions posed by members of the public. Morton also clearly mentioned, prior to Jones’ comments, that video of Luxon at a recent meeting had been edited, reducing any chance of listeners being misled on this point.

Balance

[21]  The focus of the complaint was that Jones’ comments were ‘biased and unbalanced’ and went unchecked by the host, notwithstanding that the other panellist presented a different view.

[22]  The standard does not require news, current affairs and factual programmes to be presented impartially or without bias; within the limits established by this standard, broadcasters are free to promote or challenge particular ideas, philosophies, or people.

[23]  We are also satisfied significant alternative perspectives were provided in this broadcast, noting Morten was on the panel to present an alternative perspective to Jones, and Morten fulfilled this role in immediately challenging Jones on the statement at issue, and in providing her own analysis. We therefore consider that competing viewpoints were sufficiently presented during the broadcast to enable the audience to form their own reasoned opinion on the topic,¹⁰ and find no breach of the balance standard.

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

Susie Staley
Chair
29 November 2023    

Appendix

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

1  Steve Ellis’ formal complaint to RNZ – 17 July 2023

2  RNZ’s response to the complaint – 8 August 2022

3  Ellis’ referral to the Authority – 26 August 2022

4  RNZ’s confirmation of no further comment – 22 September 2022

¹ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
² Standard 6, Code of Broadcasting Standards in New Zealand
³ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
⁴ Standard 5, Code of Broadcasting Standards in New Zealand
⁵ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 14
⁶ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁷ Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Fast track complaints process for election related content”
⁸ Guideline 6.1
⁹ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
¹⁰ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 14