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 about an interview conducted with then-Minister of Health, Dr David Clark, on his breaches of the COVID-19 Alert Level 4 ‘lockdown rules’. The complainant argued that the interview amounted to harassment and bullying, and breached the fairness standard. The Authority found that the robust questioning was within the scope of what could be expected of a public figure being interviewed on a matter of significant public interest, particularly given the expectation as to how politicians will be treated by the media.

Not Upheld: Fairness

The broadcast

[1]  An interview with then-Minister of Health, Dr David Clark, covered his breach of the COVID-19 Alert Level 4 ‘lockdown rules’ and his subsequent demotion to the bottom of the Cabinet rankings.

[2]  The interview was broadcast on The AM Show at approximately 6.44am on 7 April 2020 on Three. As part of our consideration of this complaint, we have watched a recording of the broadcast and read the correspondence listed in the Appendix.

The complaint

[3]  Jonathon Hagger submitted the broadcast breached the fairness standard of the Free-To-Air Television Code.¹ He submitted the line of questioning by the interviewer, Duncan Garner, amounted to harassment and bullying of Dr Clark as it involved repetitive questioning and the casting of aspersions against the Minister’s wife and children.

[4]  MediaWorks TV Ltd did not uphold the complaint for the following reasons:

• The repetitive questioning was a ‘common interviewing technique’ and ‘was acceptable given the Minister consistently provided the same answer to every question put to him’. The presenter was aiming to ‘elicit a new response from the Minister’ through this technique.
• In his role as Minister of Health during a global pandemic, Dr Clark would expect to be robustly interviewed by the media.
• Dr Clark was aware of the topics for discussion prior to appearing on the programme and has not made any complaint about his treatment.
• It is the role of the media to question members of the Government, particular when they have publicly acknowledged wrongdoing. This is particularly the case during the Covid-19 Alert Level 4 lockdown as opportunities to question public decision-makers was more limited.
• In Dr Clark’s position as the Minister of Health members of the public ‘expect him to follow the rules and set an example’. One of the consequences of him not following the rules is to ‘suffer the humiliation of demotion’, and ‘arguably another consequence was to face up to a robust public questioning’.

The relevant standard

[5]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.²

[6]  Individuals and organisations have the right to expect they will be dealt with justly and fairly by broadcasters, so that the audience is not left with an unduly negative impression of them.³

[7]  A consideration of what is fair will depend on the nature of the programme, the context of the programme, and the nature of the individual.⁴ For example, an individual’s status as a public figure familiar with dealing with the media is a relevant factor when considering what is fair.⁵ It is also relevant to consider whether any critical comments were aimed at the participant in their business or professional life, or their personal life.⁶

Our findings

[8]  We recognise the value of robust political discourse in the media and the role of media in holding to account those in positions of power. This enables the public to be informed and engaged, which is critical to a free and democratic society. When we consider a complaint that a broadcast has breached broadcasting standards, we weigh the value of the programme, and the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused by the broadcast.

[9]  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

[10]  The Authority has previously recognised that it is an essential element of free speech that even the most trenchant criticism of public figures, in their professional capacity, be allowed. The question is whether such criticism overstepped the boundaries of fairness and strayed into personally abusive territory.⁸

[11]  With respect to whether the fairness standard has been breached in this case, a consideration of what is fair depends on the nature of the programme and the relevant context. We have considered the following contextual factors:

• The AM Show is a morning news and talk show.
• Duncan Garner is known for his opinionated and adversarial style of interviewing.
• The broadcast carried a high level of public interest as every person in New Zealand was subject to the COVID-19 Alert Level 4 ‘lockdown rules’ and the rules were in place to protect public health and prevent the spread of COVID-19.
• At the conclusion of the interview, the presenter acknowledged Dr Clark’s appearance and thanked him for appearing on the programme.
• Dr Clark remained calm and composed throughout the interview indicating he was prepared for the level of criticism aimed at him.
• Following the interview, co-presenter Amanda Gillies asked viewers to ‘spare a thought’ for Dr Clark’s family, to ‘leave his family alone’ and in reference to Dr Clark, ‘accept the apology and move on’.

[12]  This interview was different to an ordinary political discussion, it involved a politician facing public criticism for his actions. The presenter’s criticism of the Minister was aimed at him in his professional capacity. While at times the presenter probed Dr Clark with repeated questions, we find that the interview overall did not amount to bullying or harassment. Dr Clark appeared on the programme to discuss the circumstances around his demotion and his breaches of the ‘lockdown rules’. Given the public interest in his actions, he would have been prepared for the nature of the discussion he was about to engage in and the critical line of questioning that would follow.

[13]  Taking into account these contextual factors, we consider that the presenter’s questioning was what could be expected in an interview with a politician, in the circumstances. This did not result in Dr Clark being treated or portrayed unfairly.

[14]  The presenter asked Dr Clark about the conversations he had with his family before breaching the rules. He responded that his family was not involved in the decisions to go on the excursions and that he was responsible for the mistake. The presenter did not ask any further questions about Dr Clark’s family and a co-presenter made it clear after the interview that his family should not be the subject of public criticism. In this context we consider that the references to Dr Clark’s family were not unfair.

[15]  Accordingly, we do not find a breach of the fairness standard.

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

Judge Bill Hastings

Chair
14 September 2020

Appendix

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

1  Jonathon Hagger’s complaint to MediaWorks – 17 April 2020

2  MediaWorks’ response to Mr Hagger – 5 May 2020

3  Mr Hagger’s referral to the BSA – 5 May 2020

4  MediaWorks’ confirmation of no further comment – 13 May 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 Standard 11
³ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁴ Guideline 11a and Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁵ As above
⁶ As above
⁷ See, for example, Marra and Mediaworks Radio Ltd, Decision No. 2019-023; Anderson and Radio New Zealand Ltd, Decision No. 2018-091; and Cape and MediaWorks TV Ltd, Decision No. 2018-018
⁸ Kiro and Radioworks Ltd, Decision No. 2008-108 at [78].