BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

An item on Newshub discussed revelations that the pension of New Zealand First Leader, Rt Hon Winston Peters, had been overpaid for up to seven years. The segment featured excerpts of a phone interview with Mr Peters, details about Mr Peters’ press release and subsequent comments made by Mr Peters about the overpayments. The Authority did not uphold a complaint that the broadcast was unbalanced and unfair. The Authority did not consider that it was necessary to obtain a copy of the full phone interview transcript in order to determine whether the broadcast was inaccurate and unfair (as requested by the complainant). The Authority found Mr Peters’ view in response to the story was adequately presented in the broadcast, and neither the reporter’s comments nor the presentation of the phone interview in the item resulted in Mr Peters being treated unfairly.

Not Upheld: Balance, Fairness, Programme Information

Introduction

[1]  An item on Newshub discussed revelations that the pension of New Zealand First Leader, Rt Hon Winston Peters, had been overpaid for up to seven years. Newshub reported that Mr Peters had originally refused to comment on the allegations, but that he later released a statement admitting he was aware of the error and explaining that the excess funds had been repaid as soon as this had been brought to his attention.

[2]  A Newshub.co.nz article, published on the day of the broadcast, included a transcript of a phone interview between the Newshub political reporter and Mr Peters. In the call, the reporter probed Mr Peters about the alleged pension overpayment. The article also included Mr Peters’ subsequent press release.

[3]  Tom Frewen complained that the broadcast was unbalanced and misleading, as there were two different versions of the story reported, one in which Mr Peters denied claiming ‘more pension’, and one where it was reported that ‘he admitted that he received a pension overpayment’. He submitted it was necessary to view the full transcript of the interview between the reporter and Mr Peters in order to determine whether the broadcast was balanced and fair.

[4]  The issues raised in Mr Frewen’s complaint are whether the broadcast breached the balance, fairness and programme information standards of the Free-to-Air Television Code of Broadcasting Practice.

[5]  The item was broadcast on 28 August 2017 on Three. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Freedom of expression

[6]  When we determine a complaint alleging a breach of broadcasting standards, we first give consideration to the right to freedom of expression, and, in this particular case, the importance of political speech. The right to freedom of expression includes both the broadcaster’s right to impart ideas and information, and the public’s right to receive that information. We may only interfere and uphold complaints where the resulting limitation on the right to freedom of expression is reasonable and justified.¹ Our task is to weigh the value of the programme and the importance of freedom of expression, against the level of actual or potential harm that may be caused by the broadcast.

[7]  We acknowledge the high value and public interest in political speech during the election period, and the importance of ensuring audiences are informed about election matters, and in this case, issues relating to election candidates. Given the importance of political speech and of enabling political discourse in the lead up to a general election, we will generally only interfere to limit the exercise of that speech when we consider that the harm is great.

Did the item discuss a controversial issue of public importance, which required the presentation of significant viewpoints?

[8]  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

[9]  Mr Frewen submitted:

• It was necessary to view a full transcript of the initial interview in order to judge whether the item was balanced.
• Mr Peters was later accused of ‘shifting’ his story – which depended entirely on the nature of the initial question/allegation.

[10]  MediaWorks submitted:

• Given the nature of the report, the most relevant point of view was that of Mr Peters and this was included in the broadcast.
• The report also included comment from Labour Party Leader Jacinda Ardern, National Party Leader Bill English, ACT Party Leader David Seymour, and in-studio analysis from the political reporter.

Our analysis

[11]  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’.²

[12]  We accept that the overpayment of Mr Peters’ pension was an issue of public importance, given Mr Peter’s position as an electoral candidate and given this issue had arisen in the period leading up to the 2017 General Election. We also consider that the issue was controversial, and that it was discussed in the item. Therefore the requirements of the balance standard were triggered.

[13]  In our view Mr Peters was given a reasonable opportunity to give his point of view on the issue in his phone interview with the political reporter, in his press release, and in subsequent public comments, all of which were sufficiently presented in the item and informed viewers of Mr Peters’ position in response to the issue. Alternative viewpoints and analysis from Jacinda Ardern, Bill English, David Seymour and the political reporter were also presented in the broadcast.

[14]  Additionally, there was also a significant amount of coverage surrounding this event within the period of current interest, including in the Newshub article online.³

[15]  Mr Frewen did not elaborate on the reasons why he believed the full transcript of the interview would provide new or different information than that presented in the news item, or in the online Newshub article, which also contained excerpts of the interview. The key question is how the audience would have perceived the item as broadcast, and whether they were likely to be misinformed by the omission or treatment of a particular perspective.⁴

[16]  Overall we are satisfied that audiences would be able to form a reasoned and informed opinion regarding the issue of the overpayment of Mr Peters’ pension, from the range of views presented in the item as well as a wide range of information available elsewhere.⁵ We therefore do not consider it is necessary for us to obtain a transcript of the full interview in order to make a determination under the balance standard.

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

Was Winston Peters treated unfairly?

[18]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.⁶

The parties’ submissions

[19]  Mr Frewen submitted:

• As with balance, it is only possible to judge whether the item was fair to Mr Peters by seeing a transcript of the full interview with the reporter.
• Some questions in the interview were crafted in order to elicit a particular response from Mr Peters.

[20]  MediaWorks submitted:

• The Newshub.co.nz online article Mr Frewen identified included a clip and a written transcript of an excerpt of a phone interview with Mr Peters, in which the political reporter asked him to comment on the allegation that he had taken pension payments in excess of his entitlements. Parts of this excerpt were also included in the broadcast. Mr Peters refused to confirm or comment on these allegations, but the following day released a press statement explaining that the error had been discovered in July 2017 and the funds had been repaid. Therefore it was fair to suggest that he had changed his story.
• It inferred from the complaint that Mr Frewen believed the reporter may have questioned Mr Peters in such a way as to elicit a different response to that which was eventually given via press release the following day. The Committee discussed this complaint with the Head of Television News who provided further contextual information relevant to the phone interview and transcript. 
• On this basis it did not consider there was any basis to support Mr Frewen’s view that the questions may have been crafted in order to elicit a particular, different response. One question which was not included in the audio clip and transcript online was omitted from the audio clip and transcript online only for practical reasons, but it was ‘in effect’ restated within the interview, as is evident in both the audio clip and the transcript.
• Overall, the broadcast fairly and accurately reflected the tenor of the views expressed in the reporter’s telephone interview with Mr Peters.

Our analysis

[21]  It is well established that the threshold for finding a breach of the fairness standard in relation to public figures and politicians who are familiar with dealing with the media, is higher than for a layperson or someone unfamiliar with the media.⁷ As a leader of a political party, in an election year, Mr Peters could reasonably expect a high level of scrutiny. Given the pending election and Mr Peters’ position as a standing candidate and leader of a political party seeking constituents’ votes, it was in the public interest for the political reporter to robustly question Mr Peters about the issues concerning his pension.

[22]  As noted above, during the broadcast an excerpt was played from the reporter’s phone call with Mr Peters, in which the reporter put the allegations to Mr Peters, and Mr Peters stated he had ‘nothing to say at all’ and that he did not have ‘any comment to make’. The broadcast then explained that, 27 hours later, Mr Peters issued a press release stating that his pension had been overpaid. The item included Mr Peters’ comment following the press release that ‘it was an innocent mistake’. Towards the end of the broadcast the reporter also acknowledged ‘there is no actual proof that he [Winston Peters] misled MSD [Ministry of Social Development].’

[23]  We are satisfied that in this context Mr Peters was given a fair and reasonable opportunity to comment on the allegations regarding his pension overpayment, and that his position was fairly presented in the item through the excerpts of his conversations with the reporter, and the press release, and Mr Peters’ subsequent comments.

[24]  We do not consider the reporter’s questions or comments, or the editing of the interview segment, went beyond the level of robust scrutiny and political analysis that could reasonably be expected during the election period, or that this resulted in Mr Peters being treated or portrayed unfairly. We are satisfied that the alleged harm caused to Mr Peters in this respect did not outweigh the importance of freedom of expression and political speech during the election period.

[25]  We therefore do not uphold the complaint under Standard 11.

Did the broadcast breach the programme information standard?

[26]  The purpose of the programme information standard (Standard 2) is to ensure that audiences are properly informed about programme content. Typically, this standard is concerned with programme classifications, time of broadcast and audience advisories (including warnings).

[27]  News and current affairs programming, is not, because of its distinct nature, subject to classification,⁸ and we do not consider the item otherwise raised any issues under the programme information standard.

[28]  We therefore find that the standard is not applicable, and we do not uphold this aspect of the complaint.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
16 February 2018  

Appendix

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

1     Tom Frewen’s formal complaint – 29 August 2017
2     MediaWorks’ response to the complaint – 9 October 2017
3     Mr Frewen’s referral to the Authority – 7 November 2017
4     MediaWorks’ confirmation of no further comment – 21 November 2017

¹ See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6.

² Guideline 8a to Standard 8 – Balance

³ See: http://www.newshub.co.nz/home/election/2017/08/winston-peters-admits-being-overpaid-on-superannuation.html (Newshub, 27 August 2017) http://www.newshub.co.nz/home/election/2017/08/winston-peters-shifting-story-over-pension-overpayment.html (Newshub, 28 August 2017)

⁴ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18

⁵ As above

⁶ Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁷ See, for example, Holland and MediaWorks TV Ltd, Decision No. 2017-048.

⁸ Guideline 2c