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 the leaders’ debate between Rt Hon Jacinda Ardern and Hon Judith Collins breached broadcasting standards. The programme carried a high level of public interest. Both debate participants were senior politicians who had a clear understanding of the nature of their participation in the debate and were given fair opportunity to respond to the questions raised.

Not Upheld: Discrimination and denigration, Balance, Fairness

The broadcast

[1]  On 22 September 2020, at 7pm, TVNZ 1 broadcast the first in a series of leaders’ debates between Rt Hon Jacinda Ardern and Hon Judith Collins. The debate was moderated by John Campbell covering a range of topics and included a series of questions from guests.

The complaint

[2]  Richard Frazer complained that the item breached the discrimination, balance and fairness standards for the following reasons:

• ‘The TVNZ camera man failed to apply non-discriminatory camera techniques several times. The TVNZ camera man filmed the Prime minister (Jacinda Ardern) at an angle at the same time as filming Judith Collins brow beating, and disagreeing. I didn’t see the camera man doing this when filming Judith Collins, hence the camera man was discriminatory.’
• ‘John Campbell allowed Judith Collins to interject [sic] our Prime Minister, Jacinda Ardern. This was also unfair.’
• ‘How come the student happened (in a clip) to be Samoan (same as [Collins’] Husband), and how come the Farmer (in a clip) happened to be from Matamata (same as Collins). In fairness the names of the places (nor cultures) of people in the clips should not have not been stated’.

The broadcaster’s response

[3]  TVNZ did not uphold Mr Frazer’s complaint for the following reasons:

• Mr Frazer’s complaint does not specify a relevant section of the community for the purposes of the discrimination and denigration standard.
• TVNZ understood that Mr Frazer’s complaint was that the broadcast was unfair to Ms Ardern. ‘The host was not openly biased towards any particular participant, nor was either leader questioned aggressively. The discussion focused solely on each party’s policy, and the leaders in their professional capacity.’

The nominated standards

[4]  The discrimination and denigration standard¹ states that broadcasters should not encourage discrimination against, or denigration of, 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.

[5]  The balance standard² states that when controversial issues of public importance are discussed in news, current affairs or 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.

[6]  The fairness standard³ states that broadcasters should deal fairly with any person or organisation taking part or referred to in any broadcast.

Our analysis

[7]  We have watched the broadcast and read the correspondence listed in the appendix.

[8]  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’.⁴ This complaint, however, was processed under our standard procedures as it was referred to the Authority after the election.

[9]  When we consider a complaint that a broadcast has allegedly breached broadcasting standards, we first recognise the right to freedom of expression. Our task is to weigh the value of and public interest in the broadcast complained about, against the level of actual or potential harm that may have been caused, with reference to the objectives of the standards described above. We may only uphold a complaint where the corresponding limitation on the right to freedom of expression is reasonable and justified.

[10]  The broadcast in this case carried a high value and level of public interest. The right to political speech is significant in a democratic society and particularly in the months preceding a general election, when audiences have a heightened interest in political party leadership and in robust scrutiny of those who may be seeking their vote. What this means is we would need to find a correspondingly high level of harm to conclude the interview breached broadcasting standards, and to justify limiting freedom of expression.⁵

Matters of editorial discretion not raising issues of broadcasting standards

[11]  The complainant raises an issue with the camera angle and technique. This is a matter of editorial discretion, and not one of broadcasting standards.

[12]  The choice of guests, and the manner in which they are introduced (stating where they are from, and their culture) is also a matter of editorial discretion. 

[13]  We now turn to consider whether the broadcast in question breached any of the nominated standards.

Discrimination and denigration

[14]  The discrimination and denigration standard only applies to recognised ‘sections of the community’ and not to individuals.⁶

[15]  The complainant has not identified a recognised ‘section of the community’ affected by the broadcast. Accordingly, the standard does not apply.

Balance

[16]  The purpose of the balance standard is to ensure that competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion. A common sense approach should be taken in applying this standard and determinations will always be fact and context dependent.⁷

[17]  The complainant did not identify a particular issue in respect of which balancing perspectives had been omitted. His concern appears to be with the camera footage presenting an allegedly more favourable perspective on one candidate. However, as described in paragraph [11], this is a matter of editorial discretion not addressed by the balance standard.

[18]  We do not consider the item breached the balance standard for the reasons below:

• This was content that carried a high level of public interest. 
• The nature of the leaders’ debate is to present to viewers the perspectives of both candidates in the lead up to the election. It is clear that the programme was focused on these two perspectives regarding the issues discussed.
• There was no indication Mr Campbell favoured one candidate over the other. Both leaders were given the opportunity to speak, and to respond to Mr Campbell and the questions from the guests.
• This was the first of three leaders’ debates, and one broadcast amongst many during that time covering the different aspects of election related material such as party policies and leadership.
• The audience can reasonably be expected to be aware of the varying perspectives surrounding all the issues raised.

[19]  Accordingly, we do not uphold this complaint under the balance standard.

Fairness

[20]  The threshold for finding a breach of the fairness standard in relation to public figures and politicians is generally higher than that for a layperson or someone unfamiliar with the media.⁸ The Authority has previously recognised it is an essential element of free speech that even the most trenchant criticism of public figures, in their professional capacity, be allowed. The question is whether such criticism overstepped the boundaries of fairness and strayed into personally abusive territory.⁹

[21]  Considering the following factors we do not consider the item breached the fairness standard:

• As discussed under the balance standard above, the programme carried a high level of public interest.
• Both leaders were well informed, and had knowledge of the nature of their participation.
• Both parties were given reasonable opportunities to comment and respond to the issues raised.
• Both candidates are senior politicians experienced in dealing with the media.
• The candidates could expect the scrutiny and questioning that occurred in the debate.
• There were no critical comments aimed at either candidate personally.
• The audience would not have been left with an unduly negative impression of either candidate.

[22]  We therefore do not uphold the complaint under the fairness standard.

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

Judge Bill Hastings

Chair

16 March 2021   

Appendix

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

1  Richard Frazer’s formal complaint to TVNZ – 24 September 2020

2  TVNZ’s response to Mr Frazer – 22 October 2020

3  Mr Frazer’s referral to the Authority – 26 October 2020

4  TVNZ’s response to the referral – 20 November 2020

5  Mr Frazer’s final comments – 26 February 2021

¹ Standard 6 of the Free-to-Air Television Code of Broadcasting Practice
² Standard 8 of the Free-to-Air Television Code of Broadcasting Practice
³ Standard 11 of the Free-to-Air Television Code of Broadcasting Practice
⁴ Broadcasting Standards Authority “Fast track complaints process for election related content” <www.bsa.govt.nz>
⁵ See Newton and Television New Zealand Ltd, Decision No. 2020-137
⁶ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁷ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁸ See, for example, Hagger and MediaWorks TV Ltd, Decision No. 2020-032; Marra and MediaWorks Radio Ltd, Decision No. 2019-023; Anderson and Radio New Zealand Ltd, Decision No. 2018-091; and Cape and MediaWorks TV Ltd, Decision No. 2018-018
⁹ Kiro and Radioworks Ltd, Decision No. 2008-108 at [78]