Evans and Television New Zealand Ltd - 2018-015 (21 May 2018)
- Peter Radich (Chair)
- Paula Rose
- Wendy Palmer
- Te Raumawhitu Kupenga
- Gavin Evans
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
An item on 1 News reported on the Government’s response to protests about seismic surveying, or ‘blasting’, in New Zealand waters. The item featured an interview with a representative of Greenpeace, who said that the Government could act now to stop seismic blasting, as the practice was harmful and could ‘interfere with [whales’ and dolphins’] communication and breeding… deafen them… and separate calves from their mothers’. The Authority did not uphold a complaint that this item was inaccurate and unbalanced because it presented Greenpeace’s views as fact. The item was focused on the Government’s response to the practice of seismic surveying, and not on the alleged harm to marine life, and it was clear throughout where the reporter was referring to Greenpeace’s views (which, as the expression of comment or opinion, were not subject to the requirements of the accuracy standard). The item was therefore unlikely to mislead viewers, or significantly affect their understanding of the item as a whole. Balancing comment on this issue was therefore not required to be presented in the interests of ensuring viewers were fully informed, and views contrary to Greenpeace were available in surrounding media coverage.
Not Upheld: Accuracy, Balance
 An item on 1 News reported on the Government’s response to protests about seismic surveying, or ‘blasting’, in New Zealand waters. The item was introduced by presenter Wendy Petrie, who said:
Pressure is mounting on the Government to stop the controversial method of deep sea oil exploration known as seismic blasting and today signalled a tightening up of laws to stamp out the practice, which can harm marine life. But environmentalists want quicker action…
 The item featured interview excerpts with Prime Minister, Rt Hon Jacinda Ardern, and the Minister for Energy and Resources, Hon Megan Woods, who explained that while the Government was currently bound by strict criteria set out in the Crown Minerals Act 1991 (the Act), it was reviewing this criteria to ensure it was in line with its aim of ‘net zero emissions by 2050’. A representative from Greenpeace said that the Government could act now to stop seismic blasting, as the practice was harmful and could ‘interfere with [whales’ and dolphins’] communication and breeding… deafen them… and separate calves from their mothers’.
 Gavin Evans complained that Greenpeace’s views, which are disputed by the science community, were presented as fact during this item and, as a result, viewers would have been misled about the risks of seismic blasting. Further, no balancing comment on this issue was provided to viewers.
 The issues raised in Mr Evans’ complaint are whether the broadcast breached the accuracy and balance standards as set out in the Free-to-Air Television Code of Broadcasting Practice.
 The item was broadcast on TVNZ 1 on 28 November 2017. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Was the broadcast inaccurate or misleading?
 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. Technical or unimportant points unlikely to significantly affect the audience’s understanding of the item as a whole are not material,1 and the requirement for accuracy will not apply to statements clearly distinguishable as analysis, comment or opinion, rather than statements of fact.2 The objective of the standard is to protect audiences from being significantly misinformed.
The parties’ submissions
 Mr Evans submitted:
- TVNZ presented the partisan and disputed viewpoint of Greenpeace as fact.
- As a result, viewers would have been misled about the risks of seismic blasting and whether reported calls for a ban were warranted.
- The science on offshore seismic blasting was still disputed, but the Department of Conservation developed a Code of Conduct in 2013 to minimise the risk of harm to marine mammals as a result of seismic blasting.3
 TVNZ submitted:
- Dr Andrew Wright, a marine mammal expert at the University of Canterbury, said that if marine mammals were ‘close enough to a seismic survey they undoubtedly will have some level of hearing loss. This is clearly important for animals that rely on sound for breeding, hunting, and communicating’.4
- The item clearly signalled that it was the opinion of environmentalists that seismic blasting can be harmful.
- The potential impacts referred to by the Greenpeace representative were framed as possible outcomes of seismic blasting, consistent with Dr Wright’s views above.
- No politicians in the item stated that the practice was harmful to marine mammals.
 The starting point in our determination of broadcasting standards complaints is to recognise the important right to freedom of expression. We may only interfere and uphold a complaint where the limitation on the right to freedom of expression is reasonable and justified in a free and democratic society. This involves assessing, in each case, how important the right to freedom of expression is on the one hand, and on the other, how much harm is alleged to have been caused by the broadcast, either to an individual or to society generally, by potentially breaching broadcasting standards.
 In his accuracy complaint, the complainant has alleged that this item was misleading, as the controversial or disputed views of an environmental protest group were presented to viewers as fact. We have identified below what we consider to be the relevant statements made during the item:
- Introduction by newsreader, Wendy Petrie: ‘Pressure is mounting on the Government to stop the controversial method of deep sea oil exploration known as seismic blasting and today signalled a tightening up of laws to stamp out the practice which can harm marine life. But environmentalists want quicker action…’ [our emphasis]
- Reporter, Andrea Vance: ‘Environmentalists are protesting because [the Amazon Warrior is] about to start exploring for oil off the Taranaki coast and the Government says it’s powerless to stop it’. [our emphasis]
- Ms Vance: ‘…in future, oil companies could find this type of exploration more difficult. That’s because the Energy Minister is looking at rewriting those rules as the Government tackles climate change’. [our emphasis]
- Ms Vance: ‘Greenpeace says the Government could act to change the law now… Environmentalists say seismic blasting harms whales and dolphins’. [our emphasis]
- Greenpeace representative: ‘It [seismic blasting] can interfere with their communication and breeding, it can deafen them and separate calves from their mothers’.
 This item was framed as a report on the Government’s response to protests about the arrival of the Amazon Warrior in New Zealand, which was ‘about to start exploring for oil off the Taranaki coast’. The Prime Minister and Energy and Resources Minister explained that the Government was looking to amend the Act to ensure criteria were in line with its aim of net zero emissions by 2050.
 In this respect the item had value in terms of the right to freedom of expression, by informing viewers about significant and controversial current events in New Zealand, and the political response. Given the importance of political speech, we will generally only interfere to limit the exercise of that speech when we consider the actual or potential harm that might be caused by the broadcast is great.
 We accept that the item somewhat conflated the Government’s response to climate change with the views of Greenpeace, who felt the Government was not acting quickly enough given its view that seismic blasting can harm marine life. However, we disagree that the tone of the item was focused on harm to marine life.
 We consider it would have been clear to viewers throughout the item where Ms Vance was referring to Greenpeace’s, or ‘environmentalists’’ views, which, as comment or opinion, were not statements of fact to which the standard applied. The reporter separated the Government’s response and the arguments made by Greenpeace for viewers, saying, for example, ‘environmentalists say’ and ‘environmentalists are protesting’.
 As we have noted above at paragraphs  and , during the item’s introduction, Ms Petrie said that seismic blasting ‘can harm marine life’. However, we are satisfied that this statement would not have misled viewers or significantly affected their understanding of the item as whole. Overall, it was clear that the Government was looking to amend the Act in line with its climate change goals, and in the context of the full item it was clear that the introduction was summarising Greenpeace’s position, rather than stating a fact.
 Finally, we note that there is evidence to suggest that seismic blasting does impact on marine life, with various mitigation measures in place to prevent this.5
 In these circumstances, we do not consider that the harm alleged to have been caused by the broadcast outweighed the important right to freedom of expression, including both the broadcaster’s right to impart ideas and information and the public’s right to receive that information.
 We therefore do not find a breach of the accuracy standard.
Did the item discuss a controversial issue of public importance which required the presentation of alternative viewpoints?
 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
 Mr Evans submitted:
- The topic discussed during this item was a controversial issue of public importance. There is wide community interest in the welfare of whales, the potential effects of climate change and whether New Zealand’s offshore exploration should be restricted as part of its response.
- The item omitted balancing viewpoints and information about the controls in place for seismic blasting in New Zealand.
- The tone of the programme was that seismic blasting harmed marine life and should be stopped. The only difference of view was how quickly this should happen.
- Dr Rupert Sutherland of Victoria University of Wellington publicly rebuked Greenpeace for its stance and GNS Science also conducted seismic surveys with international partners.
 TVNZ submitted:
- The discussion of calls for the Government to change the Act was not a controversial issue of public importance. In any event, significant viewpoints on the issue of changing the law were provided from the Prime Minister, the Energy Minister and Greenpeace.
- The item did not discuss the practice of seismic blasting in detail, however it was stated that ‘environmentalists say seismic blasting hurts whales and dolphins’, signalling to viewers that this is Greenpeace’s view on the practice. As the commentary was clearly signalled as being from a particular perspective, it does not require ‘balancing material’.
 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’.6
 In our view, this item discussed a controversial issue of public importance. Whether the Government was looking to restrict oil exploration and seismic blasting in New Zealand, and whether this was due to the potential harm caused to marine life, was an important issue and would have been of concern to many New Zealanders. As we have found above at paragraph , this item had value in terms of the right to freedom of expression, by keeping New Zealanders informed about a significant issue and allowing for political views to be expressed.
 However, we do not consider that it was necessary for this item, in the interests of ensuring viewers were fully informed, to include the further contextual information that the complainant has argued was required. The omission of such information did not result in this item being unbalanced or a breach of the standard, given the focus of the item.
 This item focused on the Government’s response to Greenpeace’s protests. It presented both the Government’s and Greenpeace’s views on the issue, which satisfied the broadcaster’s obligation in this instance to present significant viewpoints on the issue being discussed. The narrower question of whether seismic blasting is harmful to marine life was not the focus of this item and therefore countering viewpoints on that particular topic were not required under the balance standard.
 We nevertheless acknowledge that this narrower issue is clearly a disputed and controversial issue, with arguments to be made either way by experts in this field.7 Given the attention this issue has received, and the various arguments put forward in surrounding media coverage, we consider that viewers could reasonably be expected to be aware of the opposing views on seismic blasting. The presenter signalled the issue as being ‘controversial’ in her introductory segment, and viewers were able to seek out further information on the issue, from a range of sources available, if they chose.
 In these circumstances, we have found that the broadcast was unlikely to cause harm at a level which requires our intervention or justifies limiting the right to freedom of expression, and we do not uphold the balance complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
21 May 2018
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Gavin Evans’ formal complaint – 28 November 2017
2 TVNZ’s response to the complaint – 16 January 2018
3 Mr Evans’ referral to the Authority – 11 February 2018
4 TVNZ’s response to the Authority – 11 April 2018
5 Mr Evans’ further comments – 15 April 2018
6 TVNZ’s confirmation of no further comment – 19 April 2018
1 Guideline 9b
2 Guideline 9a
3 2013 Code of Conduct for Minimising Acoustic Disturbance to Marine Mammals from Seismic Survey Operations, Department of Conservation, available to view at http://www.doc.govt.nz/our-work/seismic-surveys-code-of-conduct/.
5 See, for example: Seismic blasts: 'A nailgun in your kitchen for 3 months' (NZ Herald, 2 November 2017); ‘Seismic surveys could be hurting penguins – experts’ (NZ Herald, 17 January 2018). The complainant provided the following information about the mitigation measures in place to prevent harm: the 2013 Code of Conduct by the Department of Conservation, cited above; Marine Mammal Impact Assessment for the Amazon Warrior/Schlumberger survey (Department of Conservation website, 23 November 2017); Marine seismic surveying in New Zealand – overview of our approach (Todd Energy website, February 2018); and Seismic surveys: exploring what lies beneath (PEPANZ website).
6 Guideline 8a
7 See the views expressed in the following media coverage: Greenpeace exploiting emotive issue of seismic surveying, says professor (Stuff.co.nz, 8 May 2017); Seismic blasts: 'A nailgun in your kitchen for 3 months' (NZ Herald, 2 November 2017); Opinion: Oil and gas still needed while alternative energy sources are developed (Stuff.co.nz, 17 November 2017); Greenpeace calls on government to stop Amazon Warrior seismic survey (Stuff.co.nz, 24 November 2017); Seismic surveys could be hurting penguins - experts (NZ Herald, 17 January 2018)