BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

Māori Television Service (MTS) aired a story on Te Kāea about how hapū Te Parawhau felt they had been shut out of negotiations on the sale of a piece of land, known as Pūriri Park in Northland, to Housing New Zealand (HNZ). The Authority upheld HNZ’s complaint under the balance standard, finding the omission of HNZ’s point of view from the initial broadcast likely prevented audiences from arriving at an informed and reasoned opinion about the sale and HNZ’s involvement. The Authority also upheld HNZ’s complaint under the accuracy and fairness standards, finding that while MTS aired a follow-up broadcast featuring comment from Te Parawhau and HNZ, this broadcast did not remedy the harm caused to HNZ by the initial broadcast of inaccurate information about the land sold. As a result, HNZ was likely to be adversely affected by the broadcast and was not provided with a fair and reasonable opportunity to comment. The Authority emphasised that while public entities may be subject to greater scrutiny, they are still entitled to fair and accurate treatment in broadcasting.

Upheld: Balance, Accuracy, Fairness; No Order

The broadcast

[1]  Māori Television Service (MTS) aired a story on Te Kāea about how hapū Te Parawhau felt they had been shut out of negotiations on the sale of a piece of land, known as Pūriri Park in Northland, to Housing New Zealand Corporation (HNZ). The story claimed:

• Pūriri Park land had been ‘earmarked for educational purposes’ and was sold to HNZ without hapū consultation.
• MP Shane Reti stated HNZ denied Te Parawhau the right to be involved in the process and that HNZ are ‘desperate to avoid public notification’.
• Te Parawhau were waiting on a response to a letter they sent to HNZ on the design of the development.

[2]  A follow-up story, aired on Te Kāea seven weeks later, featured comment from Te Parawhau and HNZ about the new collaborative relationship between the two parties with respect to the land purchased by HNZ.

[3]  The first segment was broadcast on 30 October 2018. The follow-up segment was broadcast on 20 December 2018. Both were broadcast on Māori Television.

The complaint

[4]  HNZ complained the 30 October 2018 broadcast breached the balance, accuracy and fairness standards of the Free-to-Air Television Code of Broadcasting Practice, for the following reasons:

• HNZ did not purchase Pūriri Park, it purchased the vacant land next to it (both are on Pūriri Park Rd).
• The item did not explain that the Ministry of Education (MoE) was responsible for divestment of the land and therefore for any statutory process requiring Iwi engagement. This omission created the appearance HNZ was at fault for not offering the land to Iwi or hapū.
• The statements by MP Shane Reti about HNZ trying to avoid public notification related to a future application to the local council by HNZ to build homes on the land and did not relate to the sale process.
• When MTS contacted HNZ for comment prior to the broadcast, the reporter made no mention of the assertion by Dr Reti. So HNZ was not able to make a balancing comment. MTS should have put this to HNZ for comment.
• MTS should run a follow-up story as soon as possible correcting the inaccurate characterisation of the land and noting that MoE, not HNZ, was responsible for any statutory requirement to offer land to Iwi. The item should also balance Mr Reti’s assertion and a comment from HNZ on the issue of resource consent should be provided.

The broadcaster’s response

[5]  On 5 November 2018, MTS responded stating:

• The area of land is colloquially known as Pūriri Park, however the footage used did not refer to the hectares of land purchased by HNZ.
• It is clear to see how a misunderstanding arose between the reporter and HNZ.
• Much of the media coverage, local and national, on the HNZ purchase of land also refers to it as Pūriri Park.

[6]  In this response it was not clear whether MTS had upheld the complaint, but in any event, they removed the story from their online and social media platforms. MTS stated that they were investigating the story further and planned to run a follow‑up story that week and would provide HNZ with an opportunity to comment.

Referral and subsequent submissions

[7]  HNZ referred the complaint to the BSA on 29 November 2018 under the balance, accuracy and fairness standards of the Free-to-Air Television Code, noting MTS’ failure to run a correction story as promised.

[8]  MTS responded stating that they had not stipulated a timeframe for the airing of the story, noting that the story was ongoing and still being investigated by MTS, but that a follow-up story would be aired. We note that the follow-up story was aired on 20 December 2018.

[9]  HNZ responded with final comments, stating:

• In MTS’ original response to the complaint they stated they were investigating the story for a follow up that week (week of 5 November 2018) and the delay for the follow up was too long.
• The broadcaster had not taken sufficient action at the time of the referral to the BSA. Therefore the follow-up broadcast should not be considered as a part of the formal complaint.
• While the follow-up story gave HNZ scope to state their position in regard to co-operation with Te Parawhau, it did not directly or indirectly address the criticism by Dr Shane Reti ‘which was a significant portion of the formal complaint.’

[10]  MTS responded with final comments, stating:

• MTS went above and beyond to satisfy HNZ’s request for further comment on a story, despite HNZ’s contribution to the confusion surrounding the property sold.
• HNZ’s response was frivolous now in light of the follow-up story.
• In response to HNZ’s criticism that the second broadcast did not address Dr Reti’s comments, MTS submitted journalists are not responsible for people’s honestly held views and the criticism made by those who were interviewed on the HNZ story. They report ‘Māori stories from a Māori perspective that tell our stories in te ao Māori.’
• A legitimate story was reported about people’s experiences with HNZ. HNZ had already been given plenty of opportunity and air time in the follow-up story to respond.

[11]  In our initial assessment of the complaint, it was understood that MTS had accepted that the fairness and accuracy standards had been breached, and for this reason they intended to run a follow-up story. In subsequent submissions received from MTS, they advised that they had not upheld any of the complaints but had proposed to run a follow-up story to resolve HNZ’s concerns.  Given this, we have considered whether all three standards were breached, and if so, whether the action taken by MTS was sufficient.

The standards

[12]  The balance standard 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 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]  In the event that a material error of fact has occurred, broadcasters should correct it at the earliest appropriate opportunity.²

[15]  The fairness standard 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.³

[16]  If a person or organisation referred to or portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment for the programme, before broadcast. What is ‘fair and reasonable’ will depend on the circumstances.⁴

Our analysis

Freedom of expression

[17]  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.

[18]  It is an important role of journalists and the media in general to scrutinise and hold public organisations to account for their actions. Critiquing and challenging 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, and the threshold for us to intervene when public entities are involved is also high, we may intervene where there is potential for harm. This may occur through unfair, unbalanced or inaccurate criticism, which can 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.

Balance

[19]  When we consider a balance complaint, the first question is whether the broadcast amounted to a discussion of a controversial issue of public importance in a news, current affairs or factual programme.⁵

[20]  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.⁶ A controversial issue will be one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁷

[21]  Considering the concern within the local community about the sale of the land to HNZ without community involvement and the media coverage this story received,⁸ we find this broadcast dealt with a controversial issue of public importance for the purposes of this standard. We also consider that this issue was ‘discussed’ and that Te Kāea is a news and current affairs programme. Accordingly, we consider that the requirements for the balance standard to apply are met.

[22]  The next question is whether the broadcaster made reasonable efforts to ensure significant alternative viewpoints were presented within the broadcast or the period of current interest.⁹

[23]  We acknowledge the segment was introduced and presented from the perspective of Te Parawhau and that, when material is clearly signalled as approaching a topic from a particular perspective, it is not always reasonable to expect the presentation of alternative viewpoints.¹⁰ However, a key consideration under the balance standard is whether the audience were likely to be misinformed by the omission or treatment of a significant perspective.¹¹ HNZ’s perspective was omitted from this segment, and as a result potentially misleading information was broadcast about the nature of the consent process and which piece of land was being sold (as discussed further below). We consider the omission of HNZ’s viewpoint from this segment resulted in the broadcast of misinformation that may have prevented viewers from arriving at an informed and reasoned opinion about the sale of the land.

[24]  Considering the potential to be misinformed that arose from the initial broadcast, we do not believe the surrounding media coverage of this story amounted to a reasonable range of other perspectives being presented. Viewers were likely to rely on this broadcast to be an accurate, considered report.

[25]  Accordingly we find the balance standard was breached.

Accuracy

[26]  HNZ submitted that MTS incorrectly identified Pūriri Park during the initial broadcast, rather than the housing development on Pūriri Park Road, as the land sold to HNZ. We note the initial broadcast directly refers to the ‘sale of Pūriri Park to Housing New Zealand’ and that the presenter states that HNZ bought Pūriri Park land that had been ‘earmarked for educational purposes’. The footage accompanying these statements in the broadcast also depicted Pūriri Park, rather than the development on Pūriri Park Road.

[27]  HNZ also raised issues regarding the impression created through MTS’ use of Dr Reti’s comments (which related to the resource consent process rather than the sale of land process) and by MTS’ failure to clarify the MoE’s responsibilities in connection with divestment of land. These matters are addressed under the fairness standard below.

[28]  The accuracy standard applies to news, current affairs and factual programmes (which Te Kāea clearly is).  However, the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.¹² Accordingly, the first question for the Authority is whether the statements made by MTS, regarding the identity of the land, amounted to statements of fact.

[29]  We consider the descriptions of the land to be sold are statements of fact.  They are verifiable, something that can be proved right or wrong.¹³

[30]  The next question for the Authority is whether the relevant facts were material.  The standard is concerned only with material inaccuracy and technical or unimportant points unlikely to significantly affect the audience’s understanding of the programme as a whole are not material.¹⁴ We find the statements regarding what land was purchased by HNZ were materially inaccurate. HNZ did not purchase Pūriri Park, they purchased the land next to Pūriri Park.

[31]  The broadcast of these statements was likely to leave viewers misinformed about the nature of HNZ’s purchase and the effect this purchase could have on the community. The misrepresentation had the potential to cause significant harm to HNZ’s reputation within the community and nationally, considering the significance of Pūriri Park to the local community.

[32]  As noted above, when a material error of fact has occurred, broadcasters should correct it at the earliest opportunity. While the follow-up broadcast on 20 December 2018 emphasised the positive relationship between HNZ and Te Parawhau regarding the plans for the land purchased, and referred to the land as ‘the new Pūriri Park Rd development’, it did not clarify that the previous broadcast contained inaccurate statements that required correction. We further note the significant amount of time between the two broadcasts. We therefore do not consider the follow-up broadcast remedied the harm caused to HNZ through the inaccuracy in the initial broadcast.

[33]  Accordingly we uphold the complaint under the accuracy standard.

Fairness

[34]  HNZ has complained that the original broadcast would have left viewers with the following unfair impressions of HNZ:

(a)  that they were somehow at fault for not offering the development land on Pūriri Park Road to Iwi (when MoE, as vendor, was responsible for following any statutory process requiring Iwi engagement or an offer back)

(b)  that they were ‘desperate to avoid public notification of the sale’ (Dr Reti’s comment, which in fact related to a different resource consent application).

[35]  A consideration of what is fair will depend on the nature of the programme and the context (for example, the public significance of the broadcast).¹⁵ We have also had particular regard to: 

(a)  whether the audience would have been left with an unduly negative impression of HNZ as a result of the broadcast¹⁶

(b)  whether HNZ were likely to be adversely affected by the broadcast, and if so, whether HNZ were then given a fair and reasonable opportunity to comment (noting that what is ‘fair and reasonable’ will depend on the circumstances).¹⁷

[36]  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 accurately and fairly to ensure the public is not misled.

[37]  With regard to whether a negative impression of HNZ was created for viewers, we agree with HNZ’s submissions regarding the likely impression viewers would have gathered from MTS’ treatment of the above matters. We find the broadcast would have left viewers with an unduly negative impression of HNZ and had the potential to significantly harm the reputation of HNZ as a public entity. 

[38]  As we have said above, the initial broadcast did not feature comment from HNZ, and further contained inaccurate information that was likely to leave viewers misinformed about the reported sale and HNZ’s involvement. This had the potential to impact negatively on HNZ’s reputation, particularly within the local community. We therefore consider HNZ were likely to be adversely affected by the broadcast and as such, they were entitled to be provided with a fair and reasonable opportunity to comment.

[39]  We note that MTS did approach HNZ for comment regarding consultation with local Iwi, asking ‘How does Housing New Zealand respond to the claim that the Ministry of Education sold Pūriri Park to Housing New Zealand at a discounted price without consulting the local hapū and Iwi or giving first right of refusal?’. HNZ responded signalling that MoE would be better positioned to answer this question, as they were in charge of the sale process and HNZ ‘were just the buyer’.

[40]  However, this distinction – between HNZ’s responsibilities as buyer and MoE’s responsibilities as vendor – was not made clear in the programme and no comment from HNZ on the issue was featured in the broadcast. Further, this correspondence focused on only one narrow aspect of the broadcast and did not convey to HNZ the full angle of the story or the way in which HNZ would be depicted. We therefore do not consider this email exchange provided HNZ with a sufficient opportunity to comment on the issues raised by the programme.

[41]  Further, MTS offered HNZ no opportunity to respond to or correct Dr Reti’s statements. Dr Reti’s criticisms were a significant element of the segment and, as stated above, did not even relate to the sale process covered in the segment but to a separate resource consent process. This certainly had the potential to leave viewers misinformed about the nature of the sale process.

[42]  Given the nature of the programme (a current affairs programme covering how hapū Te Parawhau felt they had been shut out of negotiations on the sale of a piece of land), and the clear significance of the issue to the local community, it was unreasonable for MTS to not seek further comment from HNZ.

[43]  Accordingly we uphold the complaint under the fairness standard.

For the above reasons the Authority upholds the complaint that the broadcast of Te Kāea on 30 October 2019 breached Standards 8, 9 and 11 of the Free-to-Air Television Code of Broadcasting Practice.

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

Submissions on the provisional decision

[45]  As noted in paragraph 11 above, MTS submitted that while their initial reply found that the footage used did not refer to the hectares of land purchased and stated the story from the website had been removed, MTS did not ‘technically uphold HNZ’s complaint.’ MTS said ‘[t]his [is] because it was our intention to do a follow up story within a short time that would have addressed the issue almost immediately after the first story.’

[46]  MTS also reiterated submissions made previously during the complaints process about the acquisition of the land in question, the initial interaction between HNZ and MTS regarding the story and the community’s view of what land constitutes ‘Pūriri Park’.

[47]  MTS submitted that no orders should be made.

Authority’s response to submissions on the provisional decision

[48]  We do not agree with MTS’ assessment of HNZ’s complaint. We consider that the accuracy, fairness and balance standards were breached, for the reasons set out above. We acknowledge the steps taken by MTS to respond to HNZ’s concerns but we do not consider that this remedied the harm or that the steps were taken in a timely way.

Submissions on orders 

[49]  HNZ submitted that in light of the partial action taken by MTS, including the follow-up story, as well as the nature of the breach and HNZ’s status as a Crown entity, publication of the final decision by the Authority was a sufficient remedy on this occasion.

[50]  MTS submitted no orders should be made because, amongst other reasons:

• ‘Land confiscation is a painful history for iwi and hapū around the motu or country. This story had particular relevance and significance to the Whāngārei community, those living near Pūriri Park, including those who are also part of the hapū directly involved.’
• The follow-up story ‘gave more depth and value to the developing relationship between HNZ and Te Parawhau’. Therefore HNZ benefited from the actions ‘of our reporter in trying to broker a way for the hapū’s voice to be heard.’
• Even though the follow-up broadcast ‘was not within a period of current interest, and was too long after the first story’ it opened up engagement between Te Parawhau and HNZ.
• It was not MTS’ intent to deliberately delay the follow-up story.
• Regarding Dr Reti’s comments: ‘[w]e felt that as a local parliamentarian, these were valid comments being expressed as standalone opinions of a leader in the North. We did not immediately put Dr Reti’s opinions to HNZ, rather we thought that follow-up story would suffice for this purpose.’

Authority’s decision on orders 

[51]  When the Authority upholds a complaint we take into account a wide range of factors, including the nature of the breach, the conduct of the broadcaster and the harm caused, to determine whether orders are warranted.[18] In these circumstances, where we have upheld a complaint against a broadcaster under multiple standards, resulting in harm to the reputation of an organisation both within the community and nationally, making orders against the broadcaster would usually be appropriate.

[52]  However, we note that neither party have sought orders on this occasion. In addition, as per MTS’ submissions, HNZ and Te Parawhau’s relationship has strengthened recently, as HNZ actively seek to engage with the hapū regarding the land development in a collaborative way that ensures both parties are working together to benefit their community. Therefore, on balance, we consider that publication of the decision is a proportionate response to assist in repairing any remaining harm to HNZ’s reputation.

[53]  We also consider publication of this decision is sufficient to publicly notify the breaches of the balance, accuracy and fairness standards, and to censure the broadcaster. Finally, the decision provides guidance on the application of these standards and the level of care that is required to ensure individuals and organisations featured in broadcasts are not misrepresented and are treated justly and fairly.

[54]  In these circumstances we do not make any order.

Signed for and on behalf of the Authority

Wendy Palmer
Member
24 June 2019

Appendix

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

1                 Housing New Zealand’s formal complaint -  31 October 2018

2                 Māori Television’s response to the complaint – 5 November 2018

3                 Housing New Zealand’s referral to the Authority – 29 November 2018

4                 Māori Television’s further comments, including correspondence between HNZ and the reporter – 19 December 2018

5                 Housing New Zealand’s final comments – 21 December 2018

6                 Māori Television’s final comments – 8 February 2019

7                 HNZ’s submissions on orders – 2 May 2019

8                 Māori Television’s submissions on the provisional decision and orders – 14 May 2019

 
¹ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
² Guideline 9c
³ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁴ Guideline 11d
⁵ Guideline 8a
⁶ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁷ As above
⁸ See for example: Housing NZ complete purchase of section of Whangārei's Puriri Park land (NZ Herald, 12 June 2018) and Outraged community lobby council for public notification of park (Stuff, 1 November 2018)
⁹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹⁰ Guideline 8c
¹¹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹² Guideline 9a
¹³ Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 62      
¹⁴ Guideline 9b
¹⁵ Guideline 11a
¹⁶ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
¹⁷ Guideline 11d
¹⁸ Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58