Flutey & Rzesniowiecki and Mediaworks TV Ltd - 2018-102A-B (13 March 2019 )
- Judge Bill Hastings (Chair)
- Paula Rose
- Wendy Palmer
- Susie Staley
- Brad Flutey & Greg Rzesniowiecki
ProgrammeThe AM Show
BroadcasterMediaWorks TV Ltd
- Free-to-air TV Code: Good Taste and Decency
- Free-to-air TV Code: Privacy
- Free-to-air TV Code: Fairness
- Free-to-air TV Code: Children’s Interests
- Free-to-air TV Code: Violence
- Free-to-air TV Code: Law and Order
- Free-to-air TV Code: Discrimination and Denigration
- Free-to-air TV Code: Balance
- Free-to-air TV Code: Accuracy
[This summary does not form part of the decision.]
Two complaints about a segment on The AM Show that reported on threats to public officials over the Government’s use of 1080 were not upheld. The Authority found that the portrayal of the anti-1080 campaign was not misleading or unfair, noting that the broadcast identified the threats as coming from the ‘fringes’ of the anti-1080 movement. The Authority also found that a comment made by host Duncan Garner during the broadcast, implying Willie Apiata should be sent to harm the people who made the threats, did not breach broadcasting standards. The Authority noted that the comment was flippant, and when weighed against the broadcaster’s right to freedom of expression, it did not reach a point that justified the limitation of that right.
Not Upheld: Good Taste and Decency, Children’s Interests, Violence, Law and Order, Discrimination and Denigration, Balance, Accuracy, Privacy, Fairness
 A segment on The AM Show featured Newshub Political Editor Tova O’Brien discussing reports that the Prime Minister and the Department of Conservation (DoC) had received multiple threats in relation to the use of 1080 poison. Ms O’Brien explained that DoC had reported a significant recent increase in threats:
We’re seeing this growing movement on the fringes of the anti-1080 campaign… Some of the things the Conservation Minister outlined to us yesterday: wheel nuts being loosened on vehicles, helicopters being shot at, wires being strung across valleys to try and bring helicopters down. That is hugely, hugely concerning. Some of the threats as well posted on the DoC Facebook page: ‘I will slaughter the skin off your faces you DoC muppets’. It is extreme and it is getting increasingly extreme and I think now is time – and I think DoC has kind of changed its focus and heightened its focus on security around 1080 and it needed to because the fringe elements of the anti-1080 movement are out of control.
 The broadcast featured footage of recent anti-1080 protests and 1080 helicopter drops. Having introduced the report by referring to the ‘thugs targeting the Prime Minister’, host Duncan Garner then reacted to it saying: ‘Lock ‘em up. Lock ‘em up. They’re anarchists. Send in Willie Apiata in camo gear to sort them out one night and they’ll never breathe again.’
 The segment was broadcast on 7 November 2018 on Three.
 Brad Flutey complained that the broadcast breached the good taste and decency, children’s interests, violence, discrimination and denigration, accuracy and fairness standards of the Free-to-Air Television Code of Broadcasting Practice, for the following reasons:
- Duncan Garner’s comment was ‘nasty’ and ‘violent’.
- As ‘a minority’, anti-1080 protesters are constantly unfairly portrayed in the media and ‘labelled as terrorists’.
- Mr Garner’s comment was inaccurate as anti-1080 supporters are ‘good people’ who want what is best for New Zealand’s flora and fauna.
- The media needs to give more coverage to the anti-1080 perspective.
- The media is colluding with the government, raising issues of fairness.
 Greg Rzesniowiecki complained that the broadcast breached the good taste and decency, children’s interests, violence, law and order, discrimination and denigration, balance, accuracy, privacy and fairness standards of the Free-to-Air Television Code of Broadcasting Practice, for the following reasons:
- Mr Garner’s comment calling for the ‘lynching and murder’ of anti-1080 activists was ‘not good taste’.
- Mr Apiata’s privacy was breached and his professional reputation ‘demeaned’.
- Mr Garner’s comment encouraged violence against anti-1080 campaigners and amounted to ‘bullying behaviour’.
- The broadcast offered a biased look at anti-1080 perspectives.
- The number of incidents regarding the threatening of officials is disputed.
- The broadcast was not fair to Mr Apiata or anti-1080 supporters.
The broadcaster’s response
 MediaWorks’ response was that:
- Taking into account audience expectations of Mr Garner and The AM Show, the target audience, the nature of the comment and the lack of graphic images, the broadcast did not breach the good taste and decency or children’s interests standards.
- Regarding the reference to Willie Apiata, Mr Garner’s statement was a facetious reference to a hypothetical act of violence, which was employed for the purpose of expressing condemnation of those responsible for threats against public officials.
- The broadcast did not contain material that encouraged audiences to break the law or that promoted criminal or serious anti-social activity.
- The ‘fringe’ of the anti-1080 movement does not amount to a ‘section of the community’, as intended by the discrimination and denigration standard. In any event, the broadcast was a combination of factual material and expression of serious comment, analysis and opinion, which the standard is not intended to prevent.
- The broadcast amounted to a news item reporting recent developments relating to the 1080 issue, rather than a ‘discussion’ of the issue itself. In any event, it is reasonable to expect viewers would be aware of significant viewpoints that have been expressed in other coverage and in other media during the period of current interest.
- The broadcast’s reporting of the threats made against the Prime Minister and DoC staff, and their increasing frequency, reflected information that had been released publicly by the Prime Minister’s office and DoC.
- The anti-1080 community are not an ‘organisation’ under the fairness standard.
The relevant standards
 The good taste and decency standard is primarily aimed at broadcasts containing sexual material, nudity, coarse language or violence. The Authority will also consider the standard in relation to any broadcast that portrays or discusses material in a way that is likely to cause widespread undue offence or distress.1
 The children’s interests standard states that broadcasters should ensure children can be protected from broadcasts which might adversely affect them. Material likely to be considered under this standard includes violent content or themes.
 The violence standard states that broadcasters should exercise care and discretion when dealing with the issue of violence.
 The balance standard 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 accuracy standard 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).2
 The fairness standard 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 in programmes.3
 The intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity.4
 The discrimination and denigration standard protects against broadcasts which encourage the denigration of, or discrimination against, 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.
 The privacy standard states that broadcasters should maintain standards consistent with the privacy of the individual. The standard exists to protect individuals, where reasonable, from undesired access to, and disclosure of, information about themselves and their affairs which might affect their dignity and reputation.5
 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. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.
 In this case, the harm alleged to have been caused is that the anti-1080 campaigners generally have been unfairly tainted, and that Mr Garner’s comments may incite unlawful behavior.
 For the reasons set out below we consider that the portrayal of anti-1080 activists in the broadcast was not misleading or unfair. We also find that while Mr Garner’s comment had the potential to concern some viewers, it did not reach a point that justified the limitation of the broadcaster’s right to freedom of expression.
Good Taste and Decency, Children’s Interests and Violence
 The key questions we considered under the good taste and decency, children’s interests and violence standards were whether Mr Garner’s comment regarding Mr Apiata caused widespread undue offence or distress, caused undue harm to children, contained unduly disturbing violent content or undermined widely shared community standards.6
 Context will always be relevant when determining a complaint under these standards.7 While we find Mr Garner’s comment to be flippant and potentially offensive or upsetting to some, we find it did not reach a level that requires the Authority’s intervention. We consider the following contextual factors to be relevant in our assessment of Mr Garner’s comment:
- Audiences expect that The AM Show will often contain edgy and controversial material.
- Mr Garner is renowned for making controversial and inflammatory statements.
- The AM Show is an unclassified news and current affairs show and has an adult target audience.
- There was no accompanying graphic or violent images or footage.
- Mr Garner’s comment was not explicit or graphic. There was no description of the imagined violence.
 Accordingly we do not uphold the complaints under these standards.
 The complaints raise the balance standard in relation to the broadcast’s treatment of the anti-1080 movement.
 When we consider a balance complaint, the first question is whether the broadcast discussed a controversial issue of public importance. An issue of public importance is something that would have a significant potential impact on, or be of concern to, members of the New Zealand public.8 A controversial issue will be one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.9
 We accept that the Government’s use of 1080 as a means of pest control is a controversial issue of public importance, considering the ongoing public debate that surrounds it. However, the standard also requires the issue to have been ‘discussed’ in the item complained about.10 This broadcast was not an in-depth discussion of the pros and cons of 1080 use in New Zealand. It was a straightforward report on the threats public officials had received from ‘fringe’ members of the anti-1080 movement, amongst other stories. Accordingly we do not consider this amounted to a discussion of a controversial issue of public importance.
 Therefore we do not uphold the complaint under the balance standard.
 The complainants considered the portrayal of anti-1080 campaigners in this broadcast to be misleading and inaccurate. One of the complainants also raised the accuracy standard in regards to the reported number of threats made to public officials.
 As to whether the coverage of the anti-1080 movement was misleading, we consider that:
- The host’s comments about threats referred clearly to the conduct of those who were acting on the ‘fringes’ of 1080 protests. Accordingly we do not consider the broadcast misled viewers about anti-1080 campaigners generally.
- The requirement for accuracy also does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.11 Mr Garner’s statements (referencing ‘thugs’ and ‘anarchists’) were clearly statements of comment and opinion to which the accuracy standard does not apply.
 In regards to the number of threats reported, MediaWorks used information from DoC and the Prime Minister’s office. Considering the reputable and public nature of the sources, we find this amounts to reasonable efforts by MediaWorks to ensure the accuracy of the broadcasts.12
 Accordingly we do not uphold the complaints under the accuracy standard.
 Consideration of what is fair will generally take into account whether the audience would have been left with an unduly negative impression of an individual or organisation.13 Fairness related complaints have been raised in relation to anti-1080 campaigners as a group and in relation to Mr Apiata.
 The fairness standard applies to individuals and organisations. The Authority has previously found that a large group of people does not amount to an organisation for the purposes of this standard, simply because of their size or a shared characteristic.14
 On this basis, we are satisfied that anti-1080 protestors do not amount to an ‘organisation’ and therefore the fairness standard does not apply to them. In any event, as we have observed above, the comments made about the conduct of anti-1080 campaigners related to those who are on the fringes of the movement, and did not relate to the conduct of the anti-1080 movement as a whole.
 In regards to Mr Apiata, we do not consider Mr Garner’s comment would have left the audience with a negative impression of him, as no critical comments were made about him personally (even though he was identified by name).
 Therefore we do not uphold the complaints under the fairness standard.
Remaining standards raised
 The complaint regarding Mr Garner’s closing remarks concerning Mr Apiata raises the law and order standard. However, considering the flippant tone of Mr Garner’s comment combined with the contextual factors discussed at , we do not consider the comment amounted to a promotion of illegal or serious antisocial behaviour. Therefore we find the law and order standard was not breached.
 The discrimination and denigration standard is raised in relation to the comments concerning Mr Apiata and the portrayal of anti-1080 campaigners generally. In our view:
- We agree that Mr Garner’s comment was flippant. However, comments will not breach the standard simply because they are critical, offend some people or because they are rude.15 This comment did not amount to hate speech or a sustained attack on a particular group.16
- The broadcast did not purport to comment on anti-1080 campaigners generally. It clearly identified the threats as coming from the ‘fringes’ of the anti-1080 movement. This standard is also not intended to prevent the broadcast of serious commentary or factual programmes (unless the broadcast amounts to hate speech or a sustained attack on a particular group).17 While the story contained critical comments about the actions of members on the ‘fringes’ of the movement, the broadcast was a straightforward mix of reporting and commentary on the recent threats made against public officials by fringes of the movement.
 One of the complainants submitted Mr Apiata’s privacy had been breached. While Mr Apiata was named in The AM Show by Mr Garner, Mr Garner did not disclose any private information about him. We therefore find no breach of privacy occurred.
For the above reasons the Authority does not uphold the complaints.
Signed for and on behalf of the Authority
Judge Bill Hastings
13 March 2019
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Brad Flutey’s formal complaint – 12 November 2018
2 MediaWorks’ response to the complaint – 4 December 2018
3 Mr Flutey’s referral to the Authority – 4 December 2018
4 MediaWorks’ confirmation of no further comment – 14 January 2019
5 Greg Rzesniowiecki’s formal complaint – 12 November 2018
6 MediaWorks’ response to the complaint – 4 December 2018
7 Mr Rzesniowiecki’s referral to the Authority – 13 December 2018
8 MediaWorks’ confirmation of no further comment – 14 January 2019
1 Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
2 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
3 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
4 Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
5 Commentary: Privacy, Broadcasting Standards in New Zealand Codebook, page 21
6 Commentary, Broadcasting Standards in New Zealand Codebook, pages 12-14
7 Guideline 1a, 3b and 4a
8 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
9 As above
10 Guideline 8a
11 Guideline 9a
12 Guideline 9d
13 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
14 See for example: Loder and Dennis and MediaWorks Radio Ltd, Decision No. 2018-011
15 Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
16 As above
17 As above