BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1)(a) of the Broadcasting Act 1989
One News – item about an MP who reactivated Dutch citizenship – possible breach of law – MP’s lawyer presented as constitutional specialist and not as legal representative

Standard 5 – inaccurate – upheld by broadcaster – role as lawyer since reported in other programme – action considered insufficient

Standard 4 – balance – not considered by broadcaster – referred to Authority

Process
Application by complainant for Discovery – declined

Application by complainant for Interlocutory Decision – declined

Findings
Standard 4 – item’s focus on possibility of by-election – balanced – not upheld

Action Taken – a correction broadcast at the time of error should have occurred – now a year later, no order appropriate – upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1] A possible breach of the law which prevented Members of Parliament taking citizenship of a foreign country, and which had occurred when Mr Harry Duynhoven MP reactivated his Dutch citizenship, was addressed in an item on One News broadcast on 23 July 2003. The item included comments from Sir Geoffrey Palmer, described as a “constitutional law expert” who had been “brought in”, and who suggested that Parliament could overcome the impasse by repealing the old law.

Complaint

[[2] Michael Gibson complained to Television New Zealand Ltd, the broadcaster, that the item was neither balanced nor accurate as it did not acknowledge that Sir Geoffrey was Mr Duynhoven’s legal representative.

Standards

[3] TVNZ assessed the complaint under Standard 5 of the Free-to-Air Television Code of Broadcasting Practice which provides:

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Broadcaster’s Response to the Complainant

[4] TVNZ acknowledged that the item implied that Sir Geoffrey’s advice was being offered to the Government or, at least, to Parliament. TVNZ also raised the possibility that the reporter had been unaware that Sir Geoffrey’s legal firm was acting for Mr Duynhoven. However, in view of the misleading impression on the status of Sir Geoffrey’s advice, TVNZ upheld the complaint as a breach of the requirement for accuracy in Standard 5.

[5] Pointing out that a subsequent broadcast on TV One had made it clear that Sir Geoffrey was Mr Duynhoven’s legal representative, TVNZ considered that it was now unnecessary to broadcast a clarification.

Referral to the Authority

[6] Mr Gibson was dissatisfied, first, with TVNZ’s action on the aspect upheld and, secondly, as it did not address the issue of balance. For example with regard to the action taken by TVNZ, he suggested that the parties to the complaint should have been provided with copies of TVNZ’s correspondence with Sir Geoffrey Palmer. He also suggested that TVNZ should publish in its Annual Report a list of the complaints upheld by its Complaints Committee.

Broadcaster’s Response to the Authority

[7] TVNZ maintained that the balance standard had not been raised by Mr Gibson initially. It noted that Mr Duynhoven, when interviewed in an item broadcast on Breakfast on 24 July, had informed viewers that he was represented by Sir Geoffrey. TVNZ’s Programme Standards Manager advised that he was unaware of any correspondence with Sir Geoffrey since Mr Gibson’s complaint had been determined.

Further Correspondence

[8] In a letter dated 26 September 2003, Mr Gibson raised some procedural issues. He had been told that the Authority’s task was “to investigate and review the broadcaster’s” decision (s.7(3) of the Broadcasting Act), and it did not address the complaint de novo.

[9] He then advised that he was unable to complete his final submission on the complaint until he had resolved some other matters. He sought more details of the correspondence between TVNZ and Sir Geoffrey Palmer and questioned whether it would be useful for the Authority to view a tape of the Breakfast item referred to by TVNZ. He maintained that the issue of balance, Standard 4, was central to his complaint and had been raised specifically in an email to TVNZ on 26 July.

[10] In response, TVNZ said that the letter from Sir Geoffrey Palmer, to which Mr Gibson referred, advised that he (Sir Geoffrey) had not seen the item and had advised of his status in relation to Mr Duynhoven. It added:

The letter was not considered relevant as far as the formal complaints process was concerned. Sir Geoffrey did not lodge a complaint himself, he did not ally himself with any other complaint, and he had not seen the programme. His letter was in the nature of information (as Mr Gibson knows, because he has a copy of it). When Mr Gibson next wrote to the Authority, he repeated his request that the complaint be considered under the balance requirement in Standard 4, as he argued that the Government’s action in regard to Mr Duynhoven was carried out to avoid a by-election. He also wrote:

Finally, bearing in mind TV One’s gratuitous and quite uncalled for deception of the Authority with regard to their communications with Sir Geoffrey Palmer I would ask if they have anything to add to their statement regarding the relevance of such communications.

[11] TVNZ advised it did not intend to respond to the letter.

[12] Mr Gibson then made two applications to the Authority. The first was for the issue of an Interlocutory Decision ruling that the Authority would assess the complaint under the requirement for balance in Standard 4, and that it would apply the criteria from the Hutton report (UK)¹ in its assessment of the complaint.

[13] The second application sought an Order for Discovery from TVNZ to the Authority and the complainant which disclosed the following:

1. details of the circumstances whereby Sir Geoffrey Palmer came to be quoted by the broadcaster in its offending programme on 23 July 2003, and
2. details of all communications between the broadcaster and Sir Geoffrey Palmer subsequent to the above broadcast and relevant to that broadcast.

[14] In response to the Application for Discovery, TVNZ reported that Sir Geoffrey Palmer was not quoted in the news item broadcast on 23 July 2003, and it (TVNZ) did not appear to have replied to his later letter.

[15] As for the Application for an Interlocutory Decision, TVNZ advised that nothing recently advanced changed its views earlier put to the Authority. It added:

The fact that TVNZ receives funding to carry out its Charter obligations is, in our view, not relevant to this complaint. In any case, none of these moneys are used to assist in the funding of our news programmes. The fact that we are owned by the State is also, we consider, irrelevant. The Codes of Broadcasting Practice apply to all broadcasters and no higher standards are placed on TVNZ because it happens to be owned by the State.

Although Mr Gibson states that the applications are being made under the Broadcasting Act 1989, he does not, it should be noted, refer to any particular section in the statute. We query why an order or interlocutory decisions as sought by Mr Gibson should be granted.

[16] In response, Mr Gibson provided the Authority with a copy of a letter he had written to Sir Geoffrey, dated 28 August, as a “matter of courtesy”. He did not provide the Authority with a copy of Sir Geoffrey’s letter to TVNZ of which he had been sent a copy.

[17] In a later letter TVNZ explained to the Authority that it had meant to say that Sir Geoffrey had not been “directly quoted” in the item.

[18] Mr Gibson considered that TVNZ’s clarification added strength to his Application for Discovery. In a further letter, he advised that he considered that as yet he had insufficient information to make a final comment. He believed that it was necessary to view the Breakfast item referred to in order to assess whether it repeated the false portrayal contained in the One News item.

Authority's Determination on Complainant’s Applications

[19] The Authority acknowledges that Mr Gibson, before his complaint was considered by TVNZ’s Complaints Committee, had asked TVNZ to assess the matter under both Standard 4 (balance) and Standard 5 (accuracy). It also notes that while TVNZ had upheld the complaint that the item was inaccurate, Mr Gibson had not explained why he considered the item to be unbalanced. Accordingly, it decided that TVNZ was required to assess the Standard 5 (balance) aspect. As well, TVNZ was asked to provide a copy of the item on Breakfast on 24 July to which it had referred.

[20] In view of the minimal information in the complaint about the reasons for the allegation about the lack of balance, the Authority also asked Mr Gibson to provide TVNZ with his reasons for that aspect of the complaint. The Authority pointed out to Mr Gibson that s.10 of the Broadcasting Act required the Authority to determine complaints with minimal formality as the circumstances allowed, and it did not believe that formal responses to his applications were necessary.

Further Correspondence

[21] In his explanation to TVNZ in regard to his complaint that the item was unbalanced, Mr Gibson stated that three items dealing with Mr Duynhoven’s constitutional status, broadcast by TVNZ, initially implied that Sir Geoffrey was advising Parliament or the Government as a “leading constitutional lawyer”. Later in the fourth item, he said, it was disclosed that Sir Geoffrey was acting for Mr Duynhoven but no balance was provided to his earlier assertions. Those assertions, he contended, had been designed to put a “spin” on the matter with the objective of avoiding a by-election.

[22] On receipt of the above submission, TVNZ advised that it remained of the view that the broadcast did not breach the requirement for balance. Much of Mr Gibson’s letter, it wrote, suggested that the story could have been approached from a different angle. It observed:

We quite accept that another journalist looking to approach this story from a different angle might, had he or she known about the matters listed by Mr Gibson, have used some of that information as the basis for a new story. However, no single news story ever is able to contain every possible angle on a current issue.

[23] TVNZ then set out the structure of the item which it had broadcast, and the issues which had been raised, and stated:

All of these matters, we submit, were valid on the night in question and required no further balance. It was straightforward political reporting, followed by a legitimate interview with the political editor based on his acknowledged expertise and insight in respect of the political process.

Complainant’s Final Comment

[24] Noting that he had seen the item on Breakfast broadcast on 24 July at the Authority’s offices, Mr Gibson wrote:

I had difficulty hearing Mr Duynhoven’s explanations (such as they were) about his lawyer’s status when I was simultaneously reading a seemingly contradictory ribboned explanation about Sir Geoffrey being “brought in”.

Because of the importance which TVNZ appear to give this item, I ask the Authority to consider the confusion which it would have induced for those Breakfast viewers who had the sound on.

[25] In summary, Mr Gibson said that Sir Geoffrey had been described as a “leading constitutional lawyer” in four broadcasts, including the One News at 6.00pm on 23 July, about which he had complained. He had given a factual background to TVNZ, he explained, in response to the Authority’s request to outline his complaint that the item was unbalanced. He had not told TVNZ what the structure of the item should have contained.

[26] Mr Duynhoven, Mr Gibson wrote, was clearly presenting “a self-serving strategy”, developed, he argued, in conjunction with Sir Geoffrey Palmer. However, TVNZ had accepted Sir Geoffrey’s comments without challenge. That failure was particularly important given TVNZ’s role as a “State broadcaster”.

Authority’s Determination

[27] The members of the Authority have viewed tapes of the item broadcast on One News at 6.00pm on 23 July 2003 (the programme complained about), and the item on Breakfast on 24 July which TVNZ stated contained the information that Sir Geoffrey Palmer was acting for Mr Duynhoven. They have also read the correspondence listed in the Appendix.

[28] Dealing first with the complaint that the broadcast was unbalanced, the Authority considers that the focus of the item was the possibility of a by-election which had arisen because Mr Duynhoven MP had tried to reactivate his Dutch citizenship – an action that he had since been told could be contrary to the law. If that was so, the item explained, not only could Mr Duynhoven’s role as a Member of Parliament be invalidated but also his voting actions as a Member of Parliament and his decisions as a member of the Executive Council could be called into question. Accordingly, the item emphasised, the situation was a very serious one for the Government. In that context, the item reported that Wellington constitutional law specialists Chen and Palmer had been ‘brought in’ and that Sir Geoffrey Palmer had advised that the issue could be resolved by an amendment to the law. The item did not include any information or comment opposing Sir Geoffrey’s suggested solution and it was this omission that Mr Gibson contended meant that the item lacked balance.

[29] The Authority agrees that the possibility of a by-election was, in the words of Standard 4, a controversial issue of public importance. It does not agree, however, that the item that was broadcast about that possibility lacked balance. Had the item’s focus been different (for example, had it questioned the reason for the law of which Mr Duynhoven appeared to have fallen foul, or whether MPs should have known about that law), Sir Geoffrey’s suggested ‘quick-fix’ solution to the situation would have been required to have been balanced by comments focused on those issues. As it was, however, the item’s focus did not support the complainant’s view that it promoted a ‘self-serving strategy’ devised by Sir Geoffrey and his client, Mr Duynhoven, to deal with the situation. Accordingly, the Authority does not uphold the Standard 4 (balance) complaint.

[30] On the matter of the item’s compliance with Standard 5 (accuracy), the Authority agrees with both Mr Gibson and TVNZ that the item was inaccurate for conveying the impression that Sir Geoffrey had been called in by the Government rather than by Mr Duynhoven. TVNZ argued, however, that it made it clear on the following morning’s Breakfast that Sir Geoffrey was Mr Duynhoven’s counsel and that this was a sufficient response to the breach of broadcasting standards.

[31] The Authority does not agree with TVNZ about the sufficiency of its action. the baseline crawler (printed message) running through Breakfast on 24 July 2003 repeated that Sir Geoffrey had been ‘brought in’ and it appeared on the screen at the same time as Mr Duynhoven stated that Sir Geoffrey was his counsel. As a result, the Authority is unsure that TVNZ knew of Sir Geoffrey’s status before Mr Duynhoven made that statement. But even if TVNZ did know that, the baseline crawler did not make the point clear and so did not clearly correct the false impression left by the previous evening’s One News. As well, the Authority doubts whether even the intentional broadcast of a correcting statement on Breakfast would amount to sufficient action by the broadcaster when the inaccuracy was broadcast in an evening News programme.

[32] Mr Gibson faxed to TVNZ, on the morning of 24 July 2003, a complaint that the item was inaccurate. In the Authority’s view, this was an occasion where the matter could have been clarified in an item broadcast on One News that evening – 24 July. Now, a year later, the Authority reluctantly comes to the conclusion that none of the orders which could be imposed is appropriate. Accordingly, while upholding Mr Gibson’s complaint that the action taken by TVNZ was insufficient, it decides not to impose an order.

For the reasons above, the Authority upholds the complaint that the action taken by Television New Zealand Ltd, having upheld a complaint that the broadcast of an item on One News on 23 July 2003 breached Standard 5 of the Free-to-Air Television Code of Broadcasting Practice, was insufficient. It declines to impose an order.

It declines to uphold any other aspect of the complaints.

[33] The Authority acknowledges, and regrets, the unusually long time that has elapsed between the date of the broadcast complained about and the date of the decision – over a year. As will be apparent from the Appendix, there has been considerably more correspondence with the complainant, Mr Gibson, and the broadcaster, TVNZ, than usual. Mr Gibson has taken a relatively formal approach to the processes involved which has resulted in the need for the Authority to resolve a number of procedural matters. Nevertheless and despite the delay, the Authority has now resolved all the issues raised in the complaints.

Signed for and on behalf of the Authority

Joanne Morris
Chair
12 August 2004

Appendix

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

1. Michael Gibson’s Complaint to Television New Zealand Ltd – 24 July 2003
2. Mr Gibson’s Further Complaint – 26 July 2003
3. TVNZ’s Response to the Formal Complaint – 27 August 2003
4. Mr Gibson’s Referral to the Broadcasting Standards Authority – 20 September 2003
5. TVNZ’s Response to the Authority – 8 October 2003
6. Mr Gibson’s Response – 24 October 2003
7. TVNZ’s Reply – 31 October 2003
8. Mr Gibson’s Letter to the Authority – 20 February 2004
9. TVNZ’s Reply – 26 February 2004
10. Mr Gibson’s Applications to the Authority – 17 March 2004
11. TVNZ’s Response – 29 March 2004
12. Mr Gibson’s Reply – 1 April 2004
13. TVNZ’s Further Response – 2 April 2004
14. Mr Gibson’s Reply – 6 April 2004
15. Mr Gibson’s Further Comment – 15 April 2004
16. The Authority’s Responses to Mr Gibson and TVNZ – 7 May 2004
17. Mr Gibson’s Balance Complaint to TVNZ – 18 May 2004
18. TVNZ’s response to the Authority – 24 May 2004
19. Mr Gibson’s Final Comment – 4 June 2004

  ¹Lord Hutton was appointed by the British government to conduct an inquiry into the death of a government weapons expert Dr David Kelly.