BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority upheld a complaint that a broadcast of First Up was misleading and breached the accuracy standard. The Authority found the quiz question ‘what charges did Sweden drop last week against WikiLeaks founder, Julian Assange?’ was misleading, as charges were never formally laid against Mr Assange. The Authority also found that RNZ did not make reasonable efforts to ensure the accuracy of the broadcast noting that the error was careless. The Authority did not make any orders on this occasion.

Upheld: Accuracy

No Orders

The broadcast

[1]  A quiz segment on First Up featured the question ‘What charges did Sweden drop last week against WikiLeaks founder, Julian Assange?’ At the time Swedish authorities had dropped an investigation into rape allegations made against Mr Assange, however Mr Assange was never formally charged.

[2]  The segment was broadcast on 27 November 2019 on RNZ National. In considering this complaint, we have listened to a recording of the broadcast and read the correspondence listed in the Appendix.

The complaint

[3]  Jonathan Hearn submitted the broadcast breached the accuracy standard of the Radio Code of Broadcasting Practice for the following reasons:

• The quiz question about what charges against Mr Assange were dropped was inaccurate as he was never charged.
• RNZ admitted in their response that Mr Assange was never charged by Swedish Authorities.
• RNZ justified the ‘inaccuracy and character assassination’ by stating the quiz was not a newscast and that the quiz was not compromised.

[4]  Mr Hearn also raised the discrimination and denigration standard in his referral to the Authority. However, pursuant to section 8(1B) of the Broadcasting Act 1989, as this standard was not raised in his original complaint to RNZ, we are unable to consider it.

The broadcaster’s response

[5]  RNZ did not uphold the complaint for the following reasons:

• RNZ acknowledged that it is not correct to refer to the rape investigations as ‘charges’ when in fact they were ‘allegations’.
• However, the content complained about was a quiz and not a news report.
• Listeners would have understood enough from the inaccurate wording of the question to be able to answer it had they been abreast of RNZ’s, and other media’s, coverage of the issue.
• The error was not material to the outcome of the quiz.

The relevant standard

[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.¹

Our findings

[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]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.²

[9]  Audiences may be misinformed in two ways: by incorrect statements of fact within the programme; and/or by being misled by the programme.³ Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts’.⁴

[10]  We find the questions in the determination of this complaint to be:

• Did the segment amount to ‘news, current affairs and factual programming’?
• Was the programme misleading?
• If so, did RNZ make reasonable efforts to ensure the programme did not mislead?

Did the segment amount to ‘news, current affairs and factual programming’?

[11]  News and current affairs programmes or items will usually be readily identifiable, taking into account what audiences would reasonably expect to be news and current affairs. Factual programmes are non-fiction programmes which contain information that audiences might reasonably expect to be authoritative or truthful, such as documentaries. These can be distinguished from programmes which are wholly based on opinions or ideas.⁵

[12]  RNZ have submitted that the segment complained about was a quiz and therefore not a ‘news report’. First Up is a news and current affairs programme. The broadcast as a whole covered and discussed a wide range of current affairs issues and RNZ’s website programme summary states that First Up is ‘News and current affairs with Indira Stewart.‘

[13]  We consider that the quiz in this case was used as a method for conveying news material, namely in this case, news about the Assange case, and therefore the quiz segment both on its own and as part of this wider programme is subject to the accuracy standard.

Was the programme misleading?

[14]  The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.⁶ While the question is not a statement of analysis, comment or opinion, it is also not a statement of fact. A question cannot readily be described as accurate or inaccurate. Therefore, we consider this complaint is best considered under the second limb of the accuracy standard, ie by examining whether the broadcast was misleading as a result of the quiz question.

[15]  This issue sparked discussion amongst the Authority members, and ultimately we all agreed that the broadcast was misleading. There is a significant difference between being formally charged with a crime and being the subject of allegations or an investigation. When charges are laid, it suggests that prosecutors consider they have the evidence necessary for a guilty verdict. As charges were never laid against Mr Assange we find that listeners were given ‘a wrong idea or impression of the facts’.

[16]  We find the difference between an investigation and being charged was important and therefore the question was likely to significantly misinform listeners about Mr Assange, and the status and weight of the case against him. We also note that RNZ did not correct the mistake on air or via their website. RNZ have also confirmed that, inexplicably, it never broadcast or otherwise published answers to this particular quiz. In the circumstances, any listeners misled by the question were more likely to have remained misled.

[17]  Therefore, we find the broadcast was misleading.

Did RNZ make reasonable efforts to ensure the broadcast did not mislead?

[18]  Having found the broadcast to be misleading we now look at whether RNZ made reasonable efforts to ensure the broadcast did not mislead.

[19]  Considering the careless nature of the error and the fact that RNZ had already accurately reported on the events prior to the quiz,⁷ we find that for this programme RNZ did not make reasonable efforts to ensure the broadcast did not mislead.

[20]  Therefore, we uphold the complaint.

For the above reasons the Authority upholds the complaint that the broadcast by Radio New Zealand Ltd of First Up on 27 November 2019 breached Standard 9 of the Radio Code of Broadcasting Practice.

[21]  Having upheld Mr Hearn’s complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. We consider the publication of this decision is sufficient to publicly notify the breach of the accuracy standard and to censure the broadcaster.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair
16 June 2020

Appendix

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

1  Jonathan Hearn’s complaint to RNZ – 27 November 2019

2  RNZ’s response – 12 December 2019

3  Mr Hearn’s referral to the BSA – 13 January 2020

4  RNZ’s confirmation of no further comments – 4 February 2020

¹ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
² As above, page 19
³ As above
⁴ Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
⁵ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁶ Guideline 9a
⁷ Sweden drops rape investigation against Julian Assange (RNZ, 20 November 2019)