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 regarding a broadcast in which the host commented on the US election results and suggested outgoing President Trump had been defrauded of votes, particularly in Georgia. Listeners would have been well aware of other views and not expected a balanced approach to the issue in the context of a talkback programme which approached the subject from a particular perspective. The complainant also did not identify any person or organisation that was treated unfairly in the broadcast. In any event, the discussion of US political events, in the context of the broadcast, was unlikely to cause unfairness.

Not Upheld: Balance, Fairness

The broadcast

[1]  On Overnight Talk with Bruce Russell, broadcast on 6 January 2021, the host discussed the outcome of the US election and commented:

The Washington Post released audio of a Saturday phone call between President Trump and Georgia Secretary of State Brad Raffensperger in which the two can be heard discussing election results. In the tapes…media will tell you that Trump is coercing the Georgia Secretary of State into rigging the election result in his favour. In fact, what Trump was doing was talking about the votes that had been given to Biden, and wanting them because they were Trump votes, to be credited to him.

[2]  Mr Russell then played a recording of testimony from three members of ‘The Data Integrity Group’ at the Georgia hearing on election issues. This included a discussion of data in general and comments such as ‘there was fraud in Georgia's election. We can prove it with data’, ‘we've identified over 40 data points of negative voting or outright vote switching across candidates as totalled over two hundred thousand votes’ and ‘we’ve…flagged over 500 precincts with over one million corresponding votes that exhibited suspicious activity’. Mr Russell then said, ‘I think it speaks for itself, receiving 75 percent or more votes for one candidate in a precinct is historically abnormal.’

The complaint

[3]  Vicky Frost complained the broadcast breached the balance and fairness standards for the following reasons:

• The host was ‘clearly’ biased, and ‘justifies Trump trying to 'find' extra votes’.
• ‘Bruce Russell …said the content was just Trump saying the votes were his and the reported bullying and threats were false news. This is false’.
• ‘There has been no evidence of election fraud and Russell is perpetuating these false claims.’
• The statements were ‘blatantly untrue’.
• There was ‘no explanation of why the host chose to play the phone call’.
• The broadcaster ‘seems to reject [the] complaint simply because it's a talk back show, which I reject. I don't feel it meets the measure of frank public discourse and discussion’. 

The broadcaster’s response

[4]  The broadcaster did not uphold the complaint for the following reasons:

Balance

• The balance standard does not apply to talkback programmes like this one.
• ‘It is worthwhile noting the breadth of coverage of the US election and its aftermath’ which would have provided listeners with significant points of view.

Fairness

• The standard is not intended to prevent criticism of public figures.
• ‘When the host stated his view that votes for Trump in Georgia had been given to Joe Biden we do not consider that by these comments the host can be viewed as treating President Biden unfairly.’

[5]  NZME also commented:

We recognise that there has been no concrete evidence presented by Trump or his allies to substantiate their claims of electoral fraud and that Brad Raffensperger’s office has launched a probe into whether Trump had violated electoral law during this call. The Content Director has spoken to the host about these matters.

The standards

[6]  The balance standard¹ states 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. The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.²

[7]  The fairness standard³ requires broadcasters to deal fairly with any person or organisation taking part or referred to in any broadcast.⁴ It ensures individuals and organisations are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

[8]  The right to freedom of expression is an important right in a democracy and it is important that we weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.

[9]  We have listened to the broadcast and read the correspondence listed in the Appendix.

Balance

[10]  The balance standard applies to news, current affairs and factual programmes which discuss controversial issues of public importance. As the segment discussed news and current affairs, it falls within that category.⁵ It also discussed a controversial issue of public importance, the outcome of the US election.⁶ The balance standard therefore applies.

[11]  However we do not consider it was necessary for this item to include further perspectives for the following reasons:⁷

• This was a talkback show where topics are presented from the host’s perspective.
• A reasonable listener is likely to have interpreted the host’s comments as his views and statements of opinion.
• Listeners can be expected to have been aware of other views and news items around the issue.
• The subject was widely covered by the media.

[12]  Given the above, listeners were unlikely to have been misled by the omission of any other views.

[13]  We therefore do not uphold the balance complaint.

Fairness

[14]  The purpose of this standard is to protect the dignity and reputation of those featured in programmes. Ms Frost has not, in her complaint, identified who the broadcast was unfair to. In any event, this discussion of US political events, even if misguided or based on unverified information, in the context of the broadcast, was unlikely to cause unfairness.

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

Judge Bill Hastings

Chair

29 June 2021

Appendix

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

1  Vicky Frost’s complaint to NZME – 6 January 2021

2  NZME’s decision – 11 February 2021

3  Ms Frost’s referral to the BSA – 15 February 2021

4  NZME’s comments on the referral – 1 March 2021

5  Ms Frost’s final comments – 15 March 2021

6  NZME’s final comments – 31 March 2021

¹ Standard 8 of the Radio Code of Broadcasting Practice
² Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
³ Standard 11 of the Radio Code of Broadcasting Practice
⁴ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁵ See Godinet & Kay and NZME Radio, Decision No. 2020-101 at [15]
⁶ See Lobb and Television New Zealand Ltd, Decision No. 2020-154 at [12]
⁷ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18