BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has upheld a complaint that a 1 News item reporting on then Leader of the Opposition and National Party leader Hon Simon Bridges travelling from Tauranga to Wellington during COVID-19 Level 4 lockdown breached the accuracy standard. The Authority found that the item, which was focussed on MPs breaking lockdown rules, was misleading in putting Mr Bridges in that category.  The Authority acknowledged that, during the time of the broadcast, there was confusion surrounding the scope of the rules, particularly as to what constituted an essential service. However, the broadcaster had access to information suggesting Mr Bridges was engaged in an ‘essential service’ and, given the level of harm potentially caused by portraying a senior Member of Parliament as breaking lockdown rules, had not made reasonable efforts to ensure that this particular item did not mislead the public.

Upheld: Accuracy

No Order

The broadcast

[1]  During the period of the COVID-19 Level 4 lockdown, 1 News featured an item about then Leader of the Opposition and National Party leader Hon Simon Bridges, travelling from Tauranga to Wellington to chair a select committee meeting. The relevant extracts of the report follow:

Simon Dallow: More talk about MPs not following the rules, first David Clark and now Simon Bridges…

Jessica Mutch McKay: So Simon Bridges is in charge of this COVID-19 select committee which is holding the government to account and it’s held on Zoom which is an online place where people can get together without actually getting together in the same place and talk and discuss things. A lot of us are using this during the lockdown. But instead of using it from his home in Tauranga, Simon Bridges decided to drive all the way down to Wellington and to hold the Zoom meeting here. Now that’s over a thousand kilometres there and back and it’s also many, many hours in the car and when we asked the reason why we were told look the internet connection is patchy and we don’t want it cutting in and out when it’s something so important. And yes of course it’s important, and yes he’s the leader of the National Party but we are getting the message, stay at home, if you can work from home you should do so and as you say it comes after David Clark the Health Minister has been told off for not following the rules either and going on a mountain bike and he is yet to publicly apologise for that. And I think for people sitting at home watching this, following the rules, making sacrifices, it’s a bit hard to watch when senior Members of Parliament aren’t doing the same.

[2]  The segment was broadcast on 6 April 2020 on TVNZ 1. We have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix in our consideration of the complaint.

The complaint

[3]  Robin Grieve complained that the broadcast breached the accuracy standard of the Free-to-Air Television Code of Broadcasting Practice,¹ for the following reasons:

• The item is ‘clearly claiming that Simon Bridges is not following the rules’. Mr Grieve provided examples of parts of the item that gave that impression including the use of the word ‘either’ in the statement, ‘David Clark the Health Minister has been told off for not following the rules either’.
• ‘The reporter has made a serious allegation against the [then Leader of the Opposition] which is unfounded. He did not break the rules.’ Mr Grieve highlighted that using private vehicles was allowed and travelling was allowed for essential workers.
• ‘The guidelines do say that those who can work from home should do so, but that is a guideline not a rule and equally applies to the Prime Minister who does not work from home.’

[4]  We also note that Mr Grieve made several submissions in his referral that relate to his views that the item was based on a ‘partisan premise’. However, these are not concerns that raise issues under the accuracy standard and therefore are not able to be dealt with under the standard.

The broadcaster’s response

[5]  TVNZ submitted the broadcast did not breach the accuracy standard for the following reasons:

• The Unite Against COVID-19 Level 4 Rules state: ‘You must stay at home, unless you are an “essential worker” and have been told you must go to work.’
• ‘It is clear that Mr Bridges was not following the intention of this rule in driving to Wellington to attend a Zoom meeting which could be attended from Tauranga. The reasons that Mr Bridges travelled to Wellington are discussed in the item, the Committee notes that Mr Bridges did not say he had been instructed by the Government to do so. The comment was not misleading or inaccurate in this context.’
• ‘Mr Bridges as Leader of the Opposition, a senior MP did not follow the intention of the Unite Against Covid-19 Level 4 rules. The reasons that he did so were explained in the item, but equally he could have attended the Zoom meeting from his home in Tauranga, he did not have to travel’.
• ‘It is newsworthy to discuss the possible public perception of his actions given the intention of the rules.’
• The Prime Minister’s case and that of the then Leader of the Opposition are ‘not analogous and should not be expected to be seen that way.’

The relevant standards

[6]  The accuracy standard (Standard 9) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead. The objective of this standard is to protect audiences from being significantly misinformed.²

Our analysis

Freedom of expression and public interest

[7]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[8]  There is a high level of public interest in questioning and challenging the actions of Members of Parliament, and Government. It is an important role of the media to report on issues that widely affect New Zealand society and raise questions that promote frank public discourse and discussion, which is an important feature of the right to freedom of expression and our democratic society.

The relevant legislation

[9]  The Authority has previously considered this complaint and issued a decision.  However, this decision was withdrawn as it referred to a later version of the relevant COVID-19 lockdown legislation³ which was not in place at the time of the broadcast.

[10]  Authority members have reconsidered the complaint based on the lockdown rules that applied at the time of the broadcast.

[11]  The following COVID-19 lockdown rules applied at the time of the broadcast:

• The section 70(1)(f) Health Act Order⁴ permitted ‘essential personal movement’ which included travelling ‘for the purpose of providing an essential business or travelling to or from their place of work for that essential business’.
• ‘Essential business’ for the purposes of the above Order was defined in the section 70(1)(m) Health Act Order⁵ as meaning ‘businesses that are essential to the provision of the necessities of life and those businesses that support them, as described on the Essential Services list on the covid19.govt.nz internet site maintained by the New Zealand government’.⁶
• The Ministry of Business, Innovation and Employment (MBIE) has referred us to a web archive version of the information available on the relevant website. This did not include an ‘Essential Services list’ as such, but did include the following two web pages:
  • An ‘essential sectors’ page⁷ which provided ‘a sector level overview of the types of business and functions’ able to remain open during Alert Level 4.  This included:
    • Any entity within the local and national Government sector that was involved in COVID-19 response, enforcement, planning or logistics or that had civil defence/emergency management functions (including any entity that supplied services for these purposes).
    • Key public services.
  • An ‘essential services’ page⁸ which provided details of the ‘essential businesses’ that ‘will continue to provide the necessities of life for everyone in New Zealand during Alert Level 4’. This list did not include local or national government entities.

[12]  We also note that, at the time, documentation was available on the covid19.govt.nz website which included an ‘extensive list of essential businesses’ (see Appendix 3 of the National Crisis Management Centre National Action Plan 2.0). This document included columns for the ‘essential sectors’ and for ‘entities providing essential services’ in relation to each sector. It identified entities (from the local and national Government sector) which are ‘involved in COVID-19 response, enforcement, planning or logistics or that [have] civil defence/emergency management functions’ and ‘key public services’ in the column for ‘entities providing essential services’.

[13]  The manner in which the relevant rules have been drafted does allow for some confusion regarding what constitutes an ‘essential business’. As noted by the High Court in a subsequent decision considering the rules, while the rules included ‘drafting inconsistencies’ and were not in some respects a ‘model of good drafting’ they were prepared ‘in a situation of great urgency, in the eye of a global pandemic, when the crisis was escalating rapidly’.⁹

Accuracy

[14]  The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.¹⁰ A fact is verifiable: something that can be proved right or wrong. An opinion is someone’s view. It is contestable, and others may hold a different view.¹¹

[15]  The first question for us is whether the content complained about relates to matters of fact, or matters of analysis, comment or opinion. The complainant in this case argued that the item ‘is clearly claiming’ that Mr Bridges broke the rules. We agreed that this is a conclusion which can be drawn from the following statements, in particular the use of the term ‘either’ in the second statement:

• ‘More talk about MPs not following the rules, first David Clark and now Simon Bridges…’
• ‘…it comes after David Clark the Health Minister has been told off for not following the rules either…’
• ‘And I think for people sitting at home watching this, following the rules, making sacrifices, it’s a bit hard to watch when senior Members of Parliament aren’t doing the same.’

[16]  Whether or not a rule is broken is a factual inquiry. We find that the question of whether or not Mr Bridges broke the rules is a verifiable fact, to which the accuracy standard applies. Given that the item in question focusses on the alleged breaking of lockdown rules by Members of Parliament, it is also a material point that is likely to affect the audience’s understanding of the item as a whole.¹² For these reasons, we conclude that the accuracy standard applies.

[17]  Having determined that the accuracy standard applies, there are two steps in the assessment of whether the programme breached the accuracy standard. Firstly, we consider whether the programme was inaccurate or misleading. If we find the programme to be inaccurate or misleading, we then assess whether reasonable efforts have been made by the broadcaster to ensure that the programme was accurate and did not mislead.¹³

[18]  We have considered the rules in force at the time of the broadcast. Neither Parliament nor the select committee chaired by the Leader of Opposition were explicitly named as essential businesses. On the other hand, an argument could reasonably be made that they were ‘businesses that are essential to the provision of the necessities of life’ in terms of the section 70(1)(m) order, and that each was an ‘entity within the local and national Government sector that was involved in COVID-19 response, enforcement, planning or logistics or that had civil defence/emergency management functions’ in terms of MBIE’s essential sectors page. The reporter acknowledged that Mr Bridges was chairing the COVID-19 response select committee and noted that, ‘yes of course that is important’. There was, however, no mention that he may have been allowed under the rules to travel to Parliament for work. In the circumstances, there may have been some ambiguity in the interpretation of the Health Act orders and consequently the rules applicable to Mr Bridges.    However, there was publicly available material which should have given the broadcaster cause for caution regarding any assertion that Mr Bridges had broken the rules. At the time, various media articles¹⁴ had published ‘the list’ of essential services signalling that local and national government provided essential services.  

[19]  We agree with TVNZ’s submission that it is newsworthy, and of high public interest, to discuss the possible public perception of Mr Bridges’ actions given the intention of the COVID-19 lockdown rules. However, the broadcast was not a story about perception, but about compliance with applicable rules. If the broadcaster had said the rules are unclear and it is possible that Mr Bridges broke them by driving to Wellington, then there would have been no breach of the accuracy standard.  But the broadcast said he broke the rules.  If the rule is open to interpretation, then it cannot accurately be said that he broke it. 

[20]  In view of the factors above, the broadcast, which clearly presented to viewers that Mr Bridges breached the lockdown rules by travelling from Tauranga to Wellington, was inaccurate and misleading.¹⁵

[21]  Having found that the item was inaccurate and misleading, we now turn to the question of whether the broadcaster made reasonable efforts to ensure the accuracy of the item. TVNZ made the following submissions on the issue:

• TVNZ’s political editor spoke to Mr Bridges’ press secretary who said that, ‘the main reason for the travel was because his internet was patchy at home’ which is why that was included in the story.
• ‘At that time it was during the first lock down and “essential workers” were allowed to travel around... It had come in the context of David Clark breaking the rules so I think it’s important that the audience wouldn’t have absorbed the item in isolation, there would have been some understanding of “essential workers” anyway. My analysis was about the political perception – sitting at home you’ll be wondering why Simon Bridges is allowed to travel and you are not. He is vying to be Prime Minister and his actions are held to a high standard.’
• There was an expectation that Ministers would work from home at the time. TVNZ referred to the Post Cabinet Press Conferences of 23 March 2020 and 6 April 2020 during which the Prime Minister was asked questions about Mr Bridges’ travel from Tauranga to Wellington.

[22]  In considering this question we are influenced by the following points:

• The relevant rules were widely covered by a large range of media with many articles signalling that Government was an essential service.¹⁶
• The media had attempted to clarify at a Prime Ministerial press conference whether Mr Bridges was in breach of the rules. Although the Prime Minister’s opinion on how the rules should be interpreted is not definitive, it is clear from the answers provided at the press conference that while Ministers may have been encouraged to work from home, there was no indication that Mr Bridges was in breach of the rules by choosing to travel. The Prime Minister said, ‘I have not made—and it’s not for me to make—a determination as to how the Leader of the Opposition determines himself when we’re dealing with essential services.’
• Despite this, and apparently unable to clarify the matter by contacting the government agency responsible for the legislation, the broadcaster claimed that Mr Bridges broke the rules. As mentioned above, there was publicly available material which should have given the broadcaster cause for caution regarding any assertion that Mr Bridges had broken the rules.  At the time, various media articles had published ‘the list’ of essential services signalling that local and national government provided essential services.¹⁷ 

[23]  The question of whether or not the broadcaster made reasonable efforts to ensure that the programme did not mislead is not answered by saying there was a high public interest in the story, that broadcasters were working in a fast-paced environment, and that the message from the Government to stay home was clear. High public interest has nothing to do with the efforts made by the broadcaster. The environment was not so fast-paced that the broadcaster did not have time to refer to publicly available sources that might have given it cause to query the premise of its story that vague rules can be clearly broken, or to qualify its assertion by including that the message to stay home was subject to an exemption for essential services. That is the very issue at the heart of this complaint. 

[24]  For the above reasons, we find that the broadcaster did not make reasonable efforts to ensure the accuracy of the item.

[25]  We recognise the critical importance of the media during the COVID-19 pandemic to scrutinise the actions of elected representatives and the deployment of powers, and to hold Government and officials to account.  In finding that any public interest in the broadcast was outweighed by its potential to cause harm, we note that this decision must be considered carefully by media. We accept that in crisis situations the media may inadvertently broadcast inaccuracies, but, on this occasion, there was sufficient information available to modify and qualify the broadcast. We do not wish in any way to inhibit the media’s critical role, during a crisis, to perform its duty to scrutinise and challenge.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of 1 News on 6 April 2020 on TVNZ 1 breached Standard 9 of the Free-to-Air Television Code of Broadcasting Practice.

[26]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989.

[27]  We have considered whether we should make orders in this case. We have decided not to do so on this occasion. We consider that publication of this decision is sufficient to publicly notify the breach of the accuracy standard, and to censure the broadcaster. The decision also provides guidance on the application of the accuracy standard and the level of care that is required to ensure the audience is not significantly misinformed.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

16 November 2020

Appendix

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

1  Robin Grieve’s complaint to TVNZ – 7 April 2020

2  TVNZ’s response to Mr Grieve – 8 May 2020

3  Mr Grieve’s referral to the Authority – 19 May 2020

4  TVNZ’s confirmation of no further comments – 24 July 2020

5  TVNZ’s further comments in relation to reasonable efforts – 30 September 2020

¹ The Free-to-Air Television Code of Broadcasting Practice was refreshed with effect from 1 May 2020. This complaint has been determined under the April 2016 version of the Free-to-Air Television Code of Broadcasting Practice as the relevant broadcast pre-dated the 1 May 2020 version.
² Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
³ Health Act (COVID-19 Alert Level 3) Order 2020, cl 7 and sch 2, pt 3
⁴ The Section 70(1)(f) Health Act Order was made pursuant to Section 70(1)(f) of the Health Act 1956 and came into effect on 3 April 2020.
⁵ The Section 70(1)(m) Health Act Order was made under section 70(1)(m) of the Health Act 1956.
⁶ The High Court has subsequently ruled that this definition can be regarded as ‘stopping at the comma’ such that ‘essential businesses’ means ‘businesses that are essential to the provision of the necessities of life and those businesses that support them’ (Borrowdale v Director General of Health, Attorney General and New Zealand Law Society (as intervener) CIV-2020-485-194 at [275]).
⁷<https://web.archive.org/web/20200408022254/https://www.mbie.govt.nz/about/open-government-and-official-information/coronavirus-covid-19/essential-sectors/>
⁸<https://web.archive.org/web/20200404044343/https://www.mbie.govt.nz/about/open-government-and-official-information/coronavirus-covid-19/essential-services/>
⁹ Borrowdale v Director General of Health, Attorney General and New Zealand Law Society (as intervener) CIV-2020-485-194 at [274]
¹⁰ As above
¹¹ Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 62
¹² Guideline 9b
¹³ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
¹⁴ See for example: Government updates essential services list (odt.co.nz, 24 March 2020), Coronavirus: The essential services that will keep running in New Zealand (newshub.co.nz, 23 March 2020), Coronavirus: What are essential services? (stuff.co.nz, 24 March 2020), Here’s the list of all ‘essential’ services that can stay open during Covid-19 lockdown (thehits.co.nz, 6 April 2020)
¹⁵ Attorney General of Samoa v TVWorks Ltd CIV-2011-485-1110
¹⁶ See for example: Government updates essential services list (odt.co.nz, 24 March 2020), Coronavirus: The essential services that will keep running in New Zealand (newshub.co.nz, 23 March 2020), Coronavirus: What are essential services? (stuff.co.nz, 24 March 2020), Here’s the list of all ‘essential’ services that can stay open during Covid-19 lockdown (thehits.co.nz, 6 April 2020)
¹⁷ See for example: Government updates essential services list (odt.co.nz, 24 March 2020), Coronavirus: The essential services that will keep running in New Zealand (newshub.co.nz, 23 March 2020), Coronavirus: What are essential services? (stuff.co.nz, 24 March 2020), Here’s the list of all ‘essential’ services that can stay open during Covid-19 lockdown (thehits.co.nz, 6 April 2020)