BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Horowhenua District Council and MediaWorks Radio Ltd - 2018-105 (29 July 2019)

Members
  • Judge Bill Hastings (Chair)
  • Paula Rose
  • Wendy Palmer
  • Susie Staley
Dated
Complainant
  • Horowhenua District Council
Number
2018-105
Programme
The Long Lunch
Broadcaster
MediaWorks Radio Ltd
Channel/Station
Radio Live # 3

Summary

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

A broadcast of The Long Lunch hosted by Wendyl Nissen included an interview with Horowhenua District Councillor (HDC) Ross Campbell, who talked about his decision to wear a body camera to Council meetings after what was described as incidents of bullying towards him. MediaWorks upheld the complaint under the fairness standard, finding that it should have sought comment from HDC prior to the broadcast, but did not take any remedial action. The Authority upheld HDC’s complaint that the action taken by MediaWorks following the finding of the breach of the fairness standard was insufficient. The Authority found that MediaWorks ought to have broadcast a follow-up item to remedy the breach. The Authority also upheld the complaint that the item was unbalanced as it did not include any comment from HDC or acknowledgement of an alternative viewpoint with respect to the allegations of bullying. Finally, the Authority found the broadcast was likely to mislead audiences by giving the impression that HDC had a systemic culture of bullying, through the absence of the presentation of alternative perspectives, and upheld the complaint under the accuracy standard.

Upheld: Fairness (Action Taken), Balance, Accuracy

Order: Section 13(1)(a) broadcast statement


The broadcast

[1]  A broadcast of The Long Lunch hosted by Wendyl Nissen included an interview with Horowhenua District Councillor Ross Campbell, who talked about his decision to wear a body camera to Council meetings after what was described as incidents of bullying towards him.

[2]  During the broadcast Cr Campbell described one of the alleged incidents of bullying and his subsequent complaint to the Police which led to Cr Campbell wearing the body camera. Ms Nissen asserted that Cr Campbell was ‘wearing a body cam because he’s being bullied by other councillors’ and that she was ‘shocked’ that:

…in a climate where bullying is a huge problem in schools, children are bullying each other, on-line bullying, this is happening in your Council with adults and no one was prepared to step up and do anything about it for you… Where is the leadership? Surely someone, the CEO or someone should stand up and say ‘Guys. Stop behaving like idiots.’

[3]  The segment was broadcast on 25 September 2018 on RadioLIVE.

The complaint

[4]  The Horowhenua District Council (HDC) complained to the broadcaster, MediaWorks, that the interview breached the fairness, balance and accuracy standards of the Radio Code of Broadcasting Practice. Their submissions in the referral to the Authority on each standard are summarised below.

Fairness

  • The HDC Councillors and officers were certain to be adversely affected by Cr Campbell’s unchallenged allegations of bullying. Neither the HDC, its officers nor Councillors, other than Cr Campbell, were given any opportunity to comment for the programme.

Balance

  • The broadcaster offered no view from the HDC to counter Cr Campbell’s allegations of bullying.
  • An allegation of bullying at a local council is undoubtedly a controversial issue of public importance.

[5]  In their initial submissions to the Authority, HDC argued that the interview breached the accuracy standard for the following reasons:

  • The interview suggested that there was a climate of bullying at HDC and contained errors of fact in statements made by the interviewer.
  • The interviewer accepted Cr Campbell’s allegation of being bullied and then relied on it for her line of questions.
  • The interviewer’s incorrect assertion that Cr Campbell was ‘wearing a body cam because he’s being bullied by other councillors’ was not only ‘a material error of fact’ but one likely to influence the audience’s judgement of the validity of Cr Campbell’s allegations, ‘effectively extending this complaint about one individual councillor to include the whole council.’
  • ‘That his [Cr Campbell’s] complaints of bullying provoked no intervention by the police, other councillors (apart from the mayor), or council officers should have alerted the interviewer to the need for caution and the risk of misleading listeners by broadcasting the allegations without balancing comment.’
  • MediaWorks did not seek or present comment, clarification or input from any organisation or relevant person (other than Cr Campbell). If it had, they would have been aware, from eyewitness accounts, that the incident was no more than a vigorous verbal dispute between two individuals.
  • The audience was likely to be misinformed as a result of the omission of the HDC’s perspective.
  • MediaWorks did not make reasonable efforts to ensure accuracy as the source of the information broadcast (Cr Campbell) was not ‘produced by a reputable organisation nor did it rely on an authoritative expert.’

[6]  The Authority issued a provisional decision which was provided to the parties. In that provisional decision, we considered that the absence of HDC’s perspective was directly relevant to our assessment under the balance standard. However, in response to the provisional decision, HDC clarified its position, submitting that:

  • The complaint under the accuracy standard was not a complaint about the veracity of Cr Campbell’s allegations, rather it was a complaint against MediaWorks for failing to include any material points of fact other than those supplied by Cr Campbell.
  • Listeners had a right to assume the broadcaster had undertaken some investigation of the Councillor’s claims before putting him to air.
  • The broadcaster had failed to undertake an elementary investigation of the facts, and allowed its interviewer to ‘amplify a subjective account by one individual into a criticism of the council’s administration and conduct.’
  • If the broadcaster had made inquiries it could have obtained an independent account of the altercation that would have stated that at no time did either Councillor look like a person who felt threatened or bullied, nor did either Councillor ask for help or express concern for their personal safety to those present.
  • In light of the above, the programme did not include all material points of fact and therefore was misleading as to the basis for the interview, and this was in breach of the accuracy standard.

The broadcaster’s response

[7]  Having received the complaint, on 31 October 2018 MediaWorks emailed HDC informing them they were in the process of preparing their formal response, and were intending to uphold the complaint under the fairness standard (only). MediaWorks requested a statement from HDC for a follow up broadcast. HDC responded on 2 November 2018, declining the invitation to comment ‘at least until after sighting the formal response’.

[8]  On 15 November 2018, MediaWorks issued its formal decision on the complaint. In its decision, MediaWorks:

  • upheld the complaint under the fairness standard, finding that the broadcast could have adversely affected the HDC and some of its members. Accordingly, the HDC should have been given the opportunity to comment for the broadcast. The HDC was not approached for comment before the broadcast, therefore the broadcast was unfair to the HDC.
  • apologised for the failure to deal with HDC fairly. With respect to a follow‑up broadcast statement, MediaWorks noted that it had advised the HDC of RadioLIVE’s intention to conduct a follow-up broadcast and invited them to make a statement. However, HDC had declined and RadioLIVE did not continue with the proposed follow-up broadcast.
  • did not uphold the complaint under the balance and accuracy standards, for the below reasons.

Balance

  • Internal disputes of a district council do not amount to a controversial issue of public importance for the purpose of the balance standard.
  • The issues plaguing the Horowhenua District Council – including those specifically relating to Cr Campbell – have been widely reported.
  • The spread of coverage indicates a relatively lengthy ‘period of current interest’, which increased the likelihood the audience would have been exposed to a range of significant points of view.
  • The interview was narrowly focused on Cr Campbell’s perspective in relation to the alleged bullying issue. However, because the issue has been widely reported, it is reasonable to expect that the audience would be aware of other significant points of view that have been expressed in in relation to the issue, in the period of current interest.

[9]  In response to the provisional decision, MediaWorks further submitted:

  • The Authority had not given due consideration to the fact alternative viewpoints in relation to the Cr Campbell ‘bullying’ issue (and problems at the HDC more generally) were expressed in other coverage within the period of current interest.
  • It disagreed with the Authority’s assessment that ‘[t]he articles and broadcasts provided are narrow in scope: they focus on one incident and do not discuss ‘bullying’ in general or as a workplace culture. They do not include HDC’s perspective and therefore do not have a balancing effect.’ MediaWorks argued that the articles and broadcasts referred to do present the HDC’s perspective in relation to both the Cr Campbell bullying allegations and problems at the HDC more generally. This should be reflected in the Authority’s consideration of the complaint under the balance standard.

Accuracy

  • Although the interview contained a mixture of opinion and comments expressed as fact, it was clear that both elements were from Cr Campbell’s viewpoint.
  • The audience would have recognised that Cr Campbell’s viewpoint was contestable, and that different interpretations of the facts were likely to have existed. The interview was distinguishable as the expression of one side of a story, rather than a presentation of authoritative fact.

Referral to the Authority


[10]  HDC referred the complaint to the Authority under the accuracy and balance standards and with regard to action taken following the breach of the fairness standard. Grounds relied upon were:

  • The invitation to provide comment was issued to the HDC prior to MediaWorks’ formal response being issued.
  • An allegation of bullying of officers or elected councillors was a controversial issue of public importance.
  • The interviewer talked of ‘a climate of bullying’ and it was in this context that MediaWorks judged Cr Campbell’s allegations worthy of coverage.
  • Not only did the interviewer not challenge Cr Campbell’s account or cast any doubt on it, she actively sympathised with him and portrayed him as the victim of a bullying campaign by his fellow councillors.
  • MediaWorks relied heavily on the allowance for ‘balance to be achieved across other coverage’. However it was not clear how such other reports related to the allegations in the interview, or addressed the ‘other significant points of view,’ so that MediaWorks’ listeners could be aware of them.
  • The audience were likely to be misinformed by the omission of one significant perspective in particular, namely the perspective of the HDC.

[11]  The HDC stated the reasons for not accepting the invitation to comment were:

  • The undefined nature of the proposed broadcast, including the format and timing, and the ‘issues’ it would be revisiting.
  • The acceptance of the invitation to take part ‘could have created the impression that the Council, despite having two of its complaints rejected, was satisfied with MediaWorks’ response whereas the opposite was the case.’

The relevant standards

[12]  The balance standard (Standard 8) states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[13]  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

[14]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The purpose of this standard is to protect the dignity and reputation of those featured or referred to in broadcasts.2

Our analysis


Freedom of expression and public interest

[15]  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.

[16]  It is an important role of journalists and the media in general to scrutinise and hold governing bodies and public organisations to account for their actions. The criticism and challenging of these institutions promotes free and frank public discourse and discussion, which is an important feature of the right to freedom of expression and our democratic society. However, while the value of this type of expression is high, so too is the risk of harm, due to the potential for unfair, unbalanced or inaccurate criticism to mislead the public and unduly damage the reputation of, and public trust in, those criticised. Our task is to strike an appropriate balance between these interests.

[17]  The questions for us to consider are whether the actions taken by the broadcaster remedied the harm caused by the broadcast, and whether the additional alleged harm is such that it warrants limiting the right to freedom of expression in this case.

Fairness (Action Taken)

[18]  MediaWorks has acknowledged that comment should have been sought from the HDC prior to the broadcast and that the failure to do so resulted in an unfair broadcast and a breach of broadcasting standards. The question for us is whether the action taken by MediaWorks in response to the breach, specifically requesting comment from the HDC for a follow-up broadcast prior to issuing a formal response, was sufficient in the circumstances.

[19]  In making this assessment we must consider the severity of the conduct, the extent of actual or potential harm that may have arisen, and whether the action taken by the broadcaster appropriately remedied the alleged harm.3

[20]  MediaWorks acknowledged the broadcast could ‘have adversely affected the HDC and some of its members.’ We find the level of potential harm to the HDC’s reputation to be significant but not extreme upon consideration of the following:

  • The HDC is a publicly elected body that relies on the support and confidence of its constituents. While it is important that public entities are open to criticism and scrutiny from broadcasters to ensure transparent government practices, it is also important that issues are reported on fairly to ensure the public is not misled.
  • Reporting on the alleged actions of one Councillor and alleged inaction of the HDC had the ability to severely damage the public’s confidence in the HDC to operate effectively and in the interests of the public.
  • The broadcast clearly approached the story from Cr Campbell’s perspective.
  • HDC’s perspective regarding issues surrounding Cr Campbell was broadcast elsewhere in the media.

[21]  After acknowledging the potential harm caused by not giving the HDC opportunity to comment prior to the broadcast, before issuing its final decision on all standards complained about, MediaWorks offered to incorporate a statement from the HDC during a follow-up broadcast to address the fairness breach. The HDC declined the invitation, choosing to wait until the formal decision was released on all standards.

[22]  We understand the HDC’s hesitance at providing a statement to be used in a follow-up broadcast while still awaiting the formal decision on their complaint. However, there is no impropriety in a broadcaster offering an early (pre-decision) opportunity to correct a breach of standards. An early ‘correction’ broadcast can mitigate harm caused by the original broadcast and is a factor the Authority will take into account when making orders.

[23]  However, MediaWorks appear to have accepted HDC’s initial refusal to provide a statement as their final position. This was inconsistent with HDC’s response which clearly indicated their refusal to be provisional, applying ‘…at least until after sighting the formal response which we expect to receive on or before November 15 2018’. This signalled HDC’s expectation that there would be further engagement between the parties. Despite this, MediaWorks made no further attempt to seek a statement from HDC.

[24]  Therefore, we consider MediaWorks did not discharge their obligation to take appropriate action after identifying the breach of the standard. HDC could not be expected to be familiar with the complaints process and, as stated above, it was clear that their position regarding provision of a statement may change after sighting the formal response. In the circumstances, and noting the harm caused by the original broadcast, it would have been appropriate for MediaWorks to reinforce their willingness to engage in a follow-up broadcast upon the issue of their formal decision. However, they simply recorded the offer as having been made and declined. This, of course, meant no effective action was ultimately taken to remedy any harm to HDC’s reputation.

[25]  In these circumstances, we agree that there had been a breach of the fairness standard and we find that the action taken by MediaWorks was insufficient. We therefore uphold this part of HDC’s complaint.

Balance

[26]  When we consider a balance complaint, the first question is whether the broadcast included a discussion of a controversial issue of public importance in a news, current affairs or factual programme.

[27]  We accept that this programme was a current affairs or factual programme and that the relevant issue was ‘discussed’.4 The key issue is whether the programme considered a controversial issue of public importance.

[28]  An issue of public importance is something that would have a significant potential impact on, or be of concern to, members of the New Zealand public.5 A controversial issue will be one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.6

[29]  While an individual confrontation would not be considered a controversial issue of public importance under this standard, the interview discussed multiple alleged incidents of bullying going unpunished within a local council. The discussion between Ms Nissen and Cr Campbell implied that this was a significant culture issue within the HDC rather than a discrete incident.

[30]  HDC is a public body of elected representatives who rely on the confidence and support of their constituents. By implying that the HDC was allowing a culture of bullying to grow within the organisation, in our view, this interview had the potential to significantly undermine public trust and confidence in the HDC and its elected representatives. The interview was also broadcast at a time when Cr Campbell’s experiences at the HDC were receiving considerable media attention. Accordingly, we consider the broadcast discussed a controversial issue of public importance, particularly to the people within the Horowhenua local body catchment area.

[31]  The next question is whether significant alternative viewpoints were presented within the broadcast or the period of current interest.7 MediaWorks submitted that as the issue was widely reported through several programmes8 and news articles,9 it was reasonable to expect that the audience would be aware of other significant points of view that had been expressed in the period of current interest.

[32]  While this interview was clearly presented from Cr Campbell’s point of view, Ms Nissen made no effort to alert listeners to the existence of an alternative perspective from HDC during the broadcast, which was just over 10 minutes long. Ms Nissen instead accepted Cr Campbell’s position and immediately condemned the HDC for their lack of action: ‘Where is the leadership? Surely someone, the CEO or someone should stand up and say “Guys. Stop behaving like idiots.”’ Considering the serious nature of these allegations and the significant impact they could have on the HDC, we find the omission of the HDC’s viewpoint during the interview resulted in an unbalanced broadcast.

[33]  In regards to MediaWorks’ submissions that balance was achieved within the period of current interest, we do not consider the reporting of these incidents in other broadcaster’s programmes or online articles amounted to a reasonable range of other perspectives as required under the standard.

[34]  The ‘other coverage’ raised by MediaWorks in relation to the incident was discussed in-depth by the Authority during the determination of this complaint. We found that the coverage includes some balancing comment regarding the specific incident between Councillors Campbell and Brannigan (eg Cr Brannigan’s perspective on the event). We also noted it includes some discussion regarding general divisions within the HDC (eg between the Mayor and Deputy Mayor), in which interviews with different factions were presented. 

[35]  However, the programmes and articles raised by MediaWorks do not discuss ‘bullying’ in general or as a workplace culture. Additionally, they do not include the HDC’s perspective on the issue of whether the HDC has a systemic culture of workplace bullying. Accordingly, we do not consider the other coverage within the period of current interest balanced the nature of the discussion of bullying in this broadcast.

[36]  This broadcast had the potential to give listeners the impression that the HDC had a culture of bullying that had been allowed to flourish, therefore balancing comment was required to allow listeners to arrive at an informed and reasoned opinion.

[37]  Therefore we uphold the complaint under the balance standard.

Accuracy

[38]  In our provisional decision on this complaint, we focused our analysis under the accuracy standard on whether specific, discrete statements made by Ms Nissen were inaccurate. We also considered that the submissions on alternative viewpoints ought to be addressed under the balance standard. However, the Authority received clarification from HDC of its position on the accuracy standard in its submissions in response to the provisional decision (see above at paragraphs [5]-[6]).

[39]  We have reviewed the further submissions and submissions previously filed by HDC and MediaWorks. After careful consideration and extensive discussion between us, we have found that the broadcast as a whole was misleading, as a result of the omission of material points of fact and the broadcaster’s failure to make reasonable efforts to ensure the broadcast would not mislead listeners. We therefore find that the accuracy standard was breached and we expand on our reasons for this finding below.

[40]  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.10 Programmes may be misleading by omission.11 Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’12

[41]  As noted above, the interview discussed multiple alleged incidents of bullying going unpunished within the HDC. The discussion between Ms Nissen and Cr Campbell implied that this was indicative of a significant culture issue within the HDC, rather than a discrete incident. During the interview Ms Nissen appeared to accept Cr Campbell’s statements as definitive, and she drew conclusions and criticised the HDC.

[42]  Statements by Ms Nissen such as that stated in paragraph [2] above, and:

  • ‘Where is the leadership? Surely someone, the CEO or someone should stand up and say “Guys. Stop behaving like idiots.”’ 
  • ‘So, I just think this is terrible and it seems someone needs to take control over it at the Horowhenua District Council’,

combined with the absence of any acknowledgement that the HDC has a contrasting view of the events, gave the impression that a culture of bullying existed within HDC. However, this had not been investigated or verified by MediaWorks, HDC’s perspective had not been sought and no alternative views were presented. We therefore consider this broadcast had the potential to significantly mislead audiences and to undermine public trust and confidence in the HDC.

[43]  Broadcasters have a responsibility to tell important stories in a balanced, accurate and fair way, so that undue harm is not caused to individuals and organisations, or to audiences generally. Broadcasting standards guide broadcasters as to how they should balance these, at times, competing interests.13

[44]  In these circumstances, MediaWorks needed to ensure that it had a sufficient and reasonable basis for broadcasting Cr Campbell’s allegations (and for the angle taken by the host during the interview), and to ensure that listeners were not misled by the omission of alternative viewpoints.14

[45]  As we have found the broadcast was likely to mislead listeners with respect to whether bullying was a systemic issue within the HDC, the next question for us to consider is whether MediaWorks made reasonable efforts to ensure the programme did not mislead.

[46]  The assessment of whether the broadcaster has made reasonable efforts to ensure accuracy includes consideration of several factors, including the source of the material broadcast, whether the broadcaster sought and/or presented comment, clarification or input from any relevant person or organisation, and the extent to which the issue of accuracy was reasonably capable of being determined by the broadcaster.15

[47]  As discussed under the fairness standard, no comment was sought from the HDC or any other parties involved and no attempt to investigate Cr Campbell’s account was made. Additionally, we note Ms Nissen made no effort during the interview to raise the existence of alternative viewpoints or to question Cr Campbell on his account of events, instead choosing to make statements in response to Cr Campbell’s account that perpetuated the notion of a systemic bullying culture within the HDC. Accordingly, we find MediaWorks did not make reasonable efforts to ensure the broadcast did not mislead listeners.

[48]  Therefore, we uphold the complaint under this standard.

For the above reasons the Authority upholds the complaint that the action taken by MediaWorks Radio Ltd, having upheld the complaint under Standard 11 of the Radio Code of Broadcasting Practice regarding the broadcast of The Long Lunch on 24 September 2018, was insufficient.

The Authority also upholds the complaint that the broadcast breached Standards 8 and 9 of the Radio Code of Broadcasting Practice.

[49]  We are grateful to the parties for providing clarification of their respective positions in response to the provisional decision. It is not the usual process for the Authority to entertain substantive submissions in response to a provisional decision, ordinarily we only consider corrections of fact. On this occasion, however, the further submissions have enabled the Authority to better understand the parties’ positions, which has resulted in the findings made above.

[50]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on orders   

[51]  HDC submitted that MediaWorks should issue a public retraction to remedy the suggestion implicit in the broadcast that the HDC and its officers tolerated a culture of bullying, which presented the ‘greatest threat of damage to its professional and political reputation and its relationship with its ratepayers.’

[52]  HDC submitted that ‘as well as being broadcast on “The Long Lunch” programme, [it should] be published in full in an advertisement placed in the Dominion Post, the Stuff website, the Horowhenua Chronicle, the Horowhenua Mail and the Manawatu Standard.’ HDC submitted that the following statements in the broadcast should be retracted:

  • ‘“…It seems very shocking to me,” says the interviewer, Wendyl Nissen, “that in a climate where bullying is a huge problem in schools, children are bullying each other, on-line bullying, this is happening in your council with adults and no-one was prepared to step up and do anything about it for you?”’
  • ‘Where is the leadership? Surely someone, the CEO or someone should stand up and say ‘Guys. Stop behaving like idiots.’ (Wendyl Nissen)
  • ‘So, I just think this is terrible and it seems someone needs to take control over it at the Horowhenua District Council.’ (Wendyl Nissen)
  • ‘Ross Campbell, there, Horowhenua District Councillor. Wearing a body cam because he’s being bullied by other councillors. Man! What’s the world coming to? Get your act together, Horowhenua. Sort it out, someone. Be a leader!’ (Wendyl Nissen)

[53]  HDC also requested the opportunity to approve the text of any statement before it is broadcast and/or published.

[54]  MediaWorks submitted the publication of the decision would be the most appropriate remedy in the circumstances and no orders should be made because:

  • ‘RadioLIVE was disestablished at the end of 2018. The Long Lunch is no longer a part of MediaWorks’ radio programming and announcer Wendyl Nissen, and the producer responsible for the broadcast, are no longer employed by MediaWorks. It would not be appropriate for the Authority to order a broadcast statement in this case because there is no suitable place for one to be broadcast.’
  • Orders under section 16 of the Broadcasting Act 1989 (which relates to orders of costs) are not warranted because it was not necessary for the complainant to engage legal counsel to present the issues at hand.
  • Orders under section 13 of the Broadcasting Act 1989 (which relates to broadcast statements and compensation payments) are not warranted because the complaint was not considered under the privacy standard.

Authority’s decision on orders 

[55]  When the Authority upholds a complaint, we may make orders, including directing the broadcaster to broadcast and/or publish a statement, and/or pay costs to the Crown. We may also order the broadcaster to make a payment towards legal costs reasonably incurred by the complainant.

[56]  In determining whether orders are warranted and the type of order to impose, the factors we take into consideration include:16

  • the seriousness of the breach, and the number of upheld aspects of the complaint
  • the degree of harm caused to any individual, or to the audience generally
  • the objectives of the upheld standard(s)
  • 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 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.

[57]  We also consider that the following aggravating and mitigating factors are relevant in this case:

 Aggravating Factors

  • Three standards have been breached, and we have found that there was potential for harm to the reputation of the HDC as a publicly elected body that relies on the support and confidence of its constituents.  
  • MediaWorks did not uphold the complaint under balance and accuracy in the first instance.
  • MediaWorks is an experienced broadcaster.
  • MediaWorks have had two complaints upheld against them in the past year involving failure to ensure the accuracy of programming.17

Mitigating Factors

  • MediaWorks upheld the fairness standard in the first instance.
  • MediaWorks made an attempt to remedy the initial breach of the fairness standard by contacting HDC and seeking comment for a follow up broadcast.

[58]  In our view, taking into account the above factors, we consider that a broadcast statement is the appropriate response to the harm arising in this case. The statement should set out the nature of the complaint and the findings in this decision, including that the allegation of bullying at HDC had not been investigated or verified and that the HDC’s views on this allegation had not been included. This broadcast statement will go some way to correcting and balancing the impression of the HDC created by the broadcast and to addressing the unfair treatment.

[59]  The complainant has requested that the broadcaster be required to retract the impression created in the item. We consider that the statement, as described in paragraph [58] above, will have the effect of correcting and balancing the impression created by the broadcast.

[60]  We note that The Long Lunch is no longer on air, and that RadioLIVE has been discontinued. Magic Talk is Mediaworks’ replacement talk radio station. We order that the broadcast statement be issued on Magic Talk at the same time, on the same day of the week as the original item complained about. This has the best prospect of reaching the audience that heard the original broadcast in question.  

[61]  With respect to the HDC’s submissions that any broadcast statement should also be published in various print and online news outlets, we consider the broadcast of the statement on Magic Talk is the appropriate response and commensurate with the harm caused by the broadcast.

[62]  Finally, HDC requested the opportunity to approve the broadcast statement.  It is the Authority’s role to approve all broadcast statements ordered under s13(1)(a) of the Broadcasting Act. We will however provide a copy of the draft statement to the complainant before it is released.

Orders


1.    Under section 13(1)(a) of the Act, the Authority orders MediaWorks Radio Ltd to broadcast a statement. The statement shall:

  • be broadcast at 12:10pm during Magic Afternoons with Sean Plunket on Magic Talk
  • be broadcast on a date to be approved by the Authority within one month of the date of this decision
  • contain a comprehensive summary of the upheld aspects of the Authority’s decision
  • be approved by the Authority prior to being broadcast.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority and the complainant of the manner in which the above orders have been complied with.

 

Signed for and on behalf of the Authority

 

Judge Bill Hastings
Chair
29 July 2019

 

 


Appendix

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

1                 Horowhenua District Council’s formal complaint - 18 October 2018

2                 MediaWorks’ initial response and request for statement – 31 October 2018

3                 Horowhenua District Council’s response to MediaWorks’ request – 2 November 2018

4                 MediaWorks’ formal response – 15 November 2018

5                 HDC’s referral to the Authority – 13 December 2018

6                 MediaWorks’ further comments – 25 January 2019

7                 HDC’s final comments – 1 February 2019

8                 MediaWorks’ confirmation of no further comment – 8 February 2019

9                 HDC’s submissions on the provisional decision and orders – 6 May 2019

10              MediaWorks’ submissions on the provisional decision and orders – 8 May 2019

11              MediaWorks’ confirmation of no further submissions on orders – 2 July 2019

12              HDC’s final submissions on orders – 3 July 2019

 


1 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
2 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
3 South Waikato District Council and MediaWorks TV Ltd, Decision No. 2018-022 and Shen and Television New Zealand Ltd, Decision No. 2016-097

4 Commentary: Balance and Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
5 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
6 As above
7 As above
8 District Councillor in Horowhenua recording council meetings with pocket video camera (Seven Sharp, 17 October 2018) and More strife at Horowhenua District Council (RNZ Panel Discussion, 26 September 2018)
9 Horowhenua councillor wearing bodycam after altercation with another councillor (NZ Herald, 24 September 2018) and Horowhenua councillor vows to keep filming to protect his safety, despite recording ban (Stuff, 11 October 2018)
10 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
11 As above
12 Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
13 GL and MediaWorks TV Ltd, Decision No. 2018-002 at [14]
14 As above, at [15]
15 Guideline 9e
16 Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58
17 See: Harvey & Lorck and MediaWorks TV, Decision No. 2018-036 and SWDC and MediaWorks TV, Decision No. 2018-022 for example