BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has partially upheld a complaint in relation to the accuracy of a Newshub Live at 6pm item about a person alleged to have harmed greyhounds. It alleged details about the accused were inaccurate and images of an unrelated dog accompanying the report were misleading. The Authority found the relevant details regarding the accused were not materially inaccurate. It found the broadcaster was correct in upholding the complaint initially in relation to the images used, but action taken in response was not sufficient to remedy the likely reputational damage to the handler and industry. The Authority held publication of this decision was sufficient remedy for the breach in all the circumstances.

Upheld: Accuracy (Action Taken)

No Orders

The broadcast

[1]  During the 13 June 2023 broadcast of Newshub Live at 6pm, a brief report was included concerning a greyhound handler who was facing charges relating to animal abuse.

[2]  The broadcast stated:

A licensed greyhound handler is facing several charges relating to animal abuse, including grabbing dogs by the neck and throwing them. The trainer is already facing charges after a greyhound tested positive for methamphetamine earlier this year. The trainer has indicated that they will defend the charges.

[3]  The handler was not named in the broadcast. Footage depicted while these comments aired included photos of injured greyhounds, one with large wounds and scars around the neck area.

The complaint

[4]  Greyhound Racing New Zealand (GRNZ) complained that the broadcast breached the accuracy standard of the Code of Broadcasting Standards in New Zealand for the following reasons:

• ‘The photos used to accompany the story were highly distressing, and had nothing to do with the case being discussed. With them being integrated into the story, with scarring around the dog’s neck, a reasonable person would have assumed this was the greyhound which was “grabbed by the neck”. However, these photographs were actually of a dog completely unrelated to the licensed handler, who had previously sustained injuries in a fight with another greyhound when it was younger. That dog is completely healed, but understandably has scar tissue. Another photo also appeared on the footage of a greyhound with an open sore/wound, which also had zero connection to the case being discussed. To use these photos to accompany this story was incredibly misleading to the point of being inaccurate in our view.’
• ‘The person facing charges is a licensed greyhound handler. The person is correctly referred to as this in the opening statement, but then incorrectly referred to as a trainer twice. There is a big distinction between a handler and a trainer in the greyhound racing industry; for example, 13-year-olds are able to be handlers, whereas trainers must be at least 18 years old and pass both practical and written assessments in order to obtain a trainer licence.’
• ‘The greyhound did not test positive for methamphetamine earlier this year; the dog tested positive last year, and the case has already been heard. The person is therefore not still facing charges for this.’
• ‘Greyhound Racing New Zealand has previously made two complaints against [the broadcaster] in the past 18 months, with one of these complaints being upheld. We are disappointed that the channel continues to present inaccurate information about our industry.’

The broadcaster’s response

[5]  Warner Bros. Discovery (WBD) upheld part of GRNZ’s complaint, giving the following reasons:

• ‘We agree that the photographs used in the Broadcast were potentially misleading and have upheld this aspect of your complaint. Regrettably, the image selection was the result of an honest mistake by a junior reporter. The reporter has been counselled by senior editorial staff about the importance of taking care in choosing photographs to accompany stories like this one so as not to mislead the audience. We sincerely apologise for this error.’
• ‘We do not agree that the timing of the methamphetamine charge is a material point of accuracy and we are satisfied that the reference to those charges did not significantly mislead the audience. In our view reference to those charges as “earlier this year” when you maintain the charges occurred last year, would not have seriously affected viewers' understanding of the overall point – that the trainer had been charged for those offences.’
• ‘Nor do we agree that the distinction between trainers and handlers is a material point of accuracy however, we have taken your point on board and discussed this with the editorial team for future broadcasts.’

[6]  WBD subsequently clarified that the images were selected as the bulletin was going to air. ‘Given the time constraints and pressures of a live broadcasting situation, the image selection was not checked. The images from our Library were found by searching 'greyhound' and the incident has been a valuable lesson for the junior reporter in checking the context of the images being selected before putting them to air.’

The standard

[7]  The purpose of the accuracy standard¹ is to protect the public from being significantly misinformed.² It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

Our analysis

[8]  We have watched the broadcast and read the correspondence listed in the Appendix.

[9]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.³

[10]  Considering first the aspects of the complaint that the broadcaster has not upheld, we have found it was not materially inaccurate in the context of this broadcast to:

• refer to a greyhound handler as a trainer;
• claim a dog tested positive for methamphetamine ‘earlier this year’ when the incident took place the previous year; or
• claim the handler was facing charges for giving a dog methamphetamine when the case had already been heard.

[11]  These matters were inaccuracies that would not have materially impacted the audience’s understanding of the item as a whole.⁴ This is because the item was brief and primarily concerned with the new allegation about dogs being grabbed by the neck and thrown, rather than the accused’s status as a trainer or handler, or the details of their previous offending.

[12]  We now turn to the allegation that the choice of photos was misleading. We agree with WBD’s conclusion that this constituted a breach of the accuracy standard.

[13]  Programmes may be misleading as a result of the way dialogue and images have been edited together.⁵

[14]  It was materially inaccurate for the item to use the images of other dogs – particularly the one depicting serious neck injuries and scarring – while discussing a handler who was alleged to have hurt dogs by grabbing their necks. Editing the images together in this way would likely lead the audience to believe the dogs pictured were hurt by the handler in question and the injuries depicted were the subject of the charges described, when this was not the case.

[15]  The broadcaster did not make reasonable efforts to ensure accuracy, as it is apparent from their response that the use of these images was a departure from accepted practice by their reporters.

Action taken

[16]  Where the broadcaster has already upheld a complaint in the first instance, our role is to consider whether the action taken by the broadcaster was sufficient to remedy the breach.

[17]  In making this assessment, we consider the severity of the conduct, the extent of the actual or potential harm that may have arisen and whether the action taken appropriately remedied the alleged harm.⁶

[18]  In terms of assessing the severity of the conduct and the extent of harm, we are conscious of the following:

• The broadcaster submitted that the inaccuracy arose due to an honest mistake by a junior reporter who selected the images without checking the context of the story in a time-pressured environment. Had the context been checked, it was reasonably foreseeable that in a story about dogs being grabbed by the neck, viewers may well assume the depicted neck scarring was caused by the handler in the story.
• The broadcast carried high public interest as it concerned serious allegations about dog welfare.
• The dog pictured with neck wounds and scarring had injuries (inflicted by another dog) which were likely to be considerably more graphic than those suffered by the dog in the relevant story.
• To the extent the photos misled viewers as to the seriousness of the handler’s actions, the breach will have detrimentally affected the handler’s reputation and may also, by extension, have impacted viewers’ perspectives on the greyhound racing industry.

[19]  The broadcaster has acknowledged and recognised the breach in the first instance by upholding the complaint under the accuracy standard. It took action by apologising to GRNZ and counselling the junior reporter involved about the importance of the images chosen to accompany stories aired.

[20]  In the circumstances, we do not consider this was sufficient to address the accuracy breach. The images of the wounded and scarred dogs used were disturbing and likely to materially affect the audience’s understanding of the item. This, in turn, had real potential to cause reputational harm to both the handler and the industry.

[21]  Counselling of a junior reporter was not sufficient to remedy this. There has been no public acknowledgement of the error.

[22]  Accordingly, we uphold the complaint with respect to the action taken by the broadcaster. 

For the above reasons the Authority upholds the complaint that action taken by the broadcaster was insufficient regarding a breach of Standard 6 (Accuracy) of the Code of Broadcasting Standards in New Zealand during the broadcast of Newshub Live at 6pm on 13 June 2023.

[23]  Having upheld one aspect of the complaint in respect of action taken by the broadcaster in response to a breach of the accuracy standard, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on our provisional decision and appropriate orders from the complainant and the broadcaster. Both parties accepted the provisional decision and their comments were limited to the question of orders.

Complainant’s submissions on orders

[24]  The complainant submitted that a public acknowledgement of the inaccuracy would be appropriate. It noted:

• ‘GRNZ appreciates that Discovery did acknowledge its error and apologised to GRNZ when our complaint was first made directly to the broadcaster. However, the reason that we then complained to the BSA was because we felt that this was insufficient to remedy the reputational harm that had been caused to both the subject of the segment, and the New Zealand greyhound racing industry as a whole.’
• ‘GRNZ has previously made one complaint against Newshub Live at 6pm, and this complaint was upheld by the BSA with regards to both balance and accuracy.’⁷
• ‘The current situation represents our second complaint specifically against Newshub Live at 6pm, and our second complaint against them being upheld by the BSA. Both of these complaints have been upheld in 2023.’
• ‘We consider that [the broadcaster] has shown a demonstrable pattern of inaccurate/unfair/unbalanced broadcasts around the greyhound racing industry in New Zealand. We had hoped that the BSA’s decision dated 30 January 2023⁸ would help with reminding the broadcaster of their journalistic obligations, and that it would result in more careful broadcasting in the future, especially when it comes to segments on greyhound racing in New Zealand.’
• ‘However, the fact that this complaint has also been upheld… suggests that the broadcaster has not taken the 30 January 2023 decision seriously.’
• ‘…GRNZ’s view is that a public acknowledgement by the broadcaster, namely on Newshub Live at 6pm, of the material inaccuracies in this broadcast is necessary to mitigate the likely reputational harm that has been done to both the handler and the greyhound racing industry on a whole.’

[25]  In response to the broadcaster’s submissions on orders, GRNZ added:

• ‘GRNZ considers that their comments… suggest that they do not genuinely accept the gravity of their mistake, and appear to try and justify it by saying that the photos accurately reflect our industry regardless.’
• ‘The reality is, 99 percent of people in the greyhound racing industry do the right thing. Not only were the photos that they used entirely unconnected to the story presented, but they were also not a fair representation of people in the greyhound racing community, contrary to what the broadcaster has attempted to assert in their submission to try and justify their breach.’

[26]  GRNZ also included submissions referring to another complaint that has not yet been referred to the Authority. On the basis that we have not yet considered or made any determination on this matter, we have not included these submissions in this decision.

Broadcaster’s submissions on orders

[27]  WBD submitted that publication of the decision alone would be sufficient to address this breach of standards. It noted:

• ‘We note that the handler was not named in the broadcast so therefore, in our view, any possible harm to his/her reputation in the wider community is negligible. And while the images used did not relate to the handler being reported on, their provenance is from the wider greyhound industry and do reflect the behaviours of some participants in that industry.’
• ‘We have accepted and apologised for the use of the misleading images, which we explained occurred as the result of the time pressures of a live broadcast and a mistake by a junior reporter who has genuinely learned from the incident. Taking these factors into consideration, on orders, given this was a partial uphold, we submit that publication of this decision is sufficient as it provides a public acknowledgement of that partial Accuracy breach. It is our hope, the Authority would preserve any further orders to decisions in relation to complete upholds.’

Authority’s decision on orders

[28]  In determining whether orders are warranted and the type of order to impose, we consider the following factors:⁹

• the seriousness of the breach and the number of upheld aspects of the complaint
• the degree of harm caused to any individual, or the audience generally
• the objectives of the upheld standard
• the attitude and actions of the broadcaster in relation to the complaint (eg whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated the breach and any harm caused)
• whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
• past decisions and/or orders in similar cases.

[29]  Looking first at aggravating factors that may support an order in this case, we noted:

• The conduct sits at low-medium on the spectrum of breaches as it had the potential to harm the reputation of the handler and the industry by suggesting the injuries pictured were caused by the handler in question. However, we note the handler was indeed accused of harming animals, just not the harm depicted in the photos.
• The objective of the accuracy standard is to protect the public from being significantly misinformed.¹⁰ We consider this broadcast had the potential to materially affect the audience’s understanding of the matter discussed.
• The Authority has recently upheld a complaint against the broadcaster.¹¹ This complaint was also made by GRNZ, concerned an item about the greyhound racing industry on Newshub Live at 6pm, and was upheld under the accuracy standard, as well as the balance standard. No orders were made in this previous decision.
• Action taken by the broadcaster (upholding the complaint, apologising to the complainant and counselling a junior reporter) was not sufficient to remedy the reputational harm caused by the broadcast, as discussed above at [20], as there was no public acknowledgement of the error.

[30]  On the other hand, there are a number of mitigating factors:

• Only one aspect of the accuracy complaint was upheld.
• The item did not name the handler involved (although this information is publicly available).
• The broadcaster did take some steps to remedy the breach by upholding the complaint, apologising to the complainant and counselling the junior reporter responsible.
• While both reports concerned the greyhound racing industry, the circumstances of this breach – a mistake by a junior reporter in selecting images – are distinguishable from the previous GRNZ complaint which was upheld due to misreporting of key facts, and a lack of balance.
• The broadcaster has not had any other complaints under the accuracy standard upheld in recent years (with the exception of the previous GRNZ complaint mentioned above).

[31]  In light of the above factors, we considered whether a broadcast statement during Newshub Live at 6pm would be an appropriate remedy. A broadcast statement is typically ordered where we consider publication of the decision is insufficient to publicly denounce the breach of broadcasting standards, censure the broadcaster, or rectify the harm caused.

[32]  We concluded not making an order is more appropriate in the circumstances, as a broadcast statement on the 6pm news could serve to draw further negative attention to the dog handler harmed by the broadcast. Publication of our decision is sufficient to publicly notify the breach of the accuracy standard, censure the broadcaster and provide guidance to WBD and other broadcasters.

Signed for and on behalf of the Authority

Susie Staley
Chair
31 January 2024

Appendix

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

1  GRNZ’s formal complaint to WBD - 9 July 2023

2  WBD’s decision on the complaint - 3 August 2023

3  GRNZ’s referral to the Authority - 13 August 2023

4  WBD confirming no further comments - 16 August 2023

5  WBD’s submission concerning nature of mistake by reporter – 3 November 2023

6  GRNZ's submissions on orders - 22 November 2023

7  WBD's submissions on orders - 2 December 2023

8  GRNZ’s response to submissions on orders – 7 December 2023

9  WBD confirming no further comments on orders – 12 December 2023

¹ Standard 6, Code of Broadcasting Standards in New Zealand 
² Commentary, Standard 6, Code of Broadcasting Standards in New Zealand, page 16
³ Introduction, Code of Broadcasting Standards in New Zealand, page 4
⁴ Guideline 6.2
⁵ Wilberg and Radio New Zealand Ltd, Decision No. 2022-071 at [36]
⁶ See, for example, Horowhenua District Council and MediaWorks Radio Ltd, Decision No. 2018-105 at [19]
⁷ See New Zealand Greyhound Racing Association Inc and Discovery NZ Inc, Decision No. 2022-084
⁸ As above
⁹ See for example Wilberg and Radio New Zealand Ltd, Decision No. 2022-071 at [67]
¹⁰ Commentary: Standard 6, Code of Broadcasting Standards in New Zealand
¹¹ See New Zealand Greyhound Racing Association Inc and Discovery NZ Inc, Decision No. 2022-084