BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

A segment on AM interviewed the complainant regarding his documentary, Milked, which focused on the environmental impact of the dairy industry. Following the interview, the presenter interviewed DairyNZ CEO, Dr Tim Mackle, on the same topic. The complainant stated the broadcast breached the fairness standard as he was not informed of Dr Mackle’s involvement and he was not given a right to respond following the interview. The Authority did not uphold the complaint, finding the nature of the broadcast did not materially deviate from what was consented to. The Authority also found the interviews were conducted fairly and the audience would not have been left with a negative impression of the complainant.

Not Upheld: Fairness

The broadcast

[1]  An item on AM on 2 May 2022 reported on the release of the Milked documentary. Leading up to the segment, presenter Ryan Bridge stated:

Coming up after the break, the documentary Milked has received international attention as controversial big claims about our dairy industry, we debate it next.

[2]  The segment included an interview with co-producer, Christian Huriwai, on the documentary and discussed the environmental impacts of dairy farming. Presenter Melissa Chan-Green then apologised to Huriwai for having to end the interview, stating:

I'm sorry we have to leave it there, but we are also going to hear from the dairy industry because of course, it is important to hear both sides. So, for his response, Dairy New Zealand CEO Tim Mackle joins us now

[3]  The remainder of the segment was an interview with Dr Mackle who responded to criticisms directed at the dairy industry in the documentary and commented on why DairyNZ did not agree to be interviewed in the documentary.

The complaint and background

[4]  Through his publicist, Huriwai was contacted to talk ‘about the doco, and the issues facing the industry’. Regarding whether the interview should take place over Zoom or in person at the studio, Discovery noted it would be ‘sooo much better in person’ and they can ‘hold until Chris able to come in’.

[5]  In confirming the invitation onto AM, Discovery informed Huriwai he would be attending for a ‘Live studio interview with Co-hosts Ryan Bridge and Melissa Chan-Green discussing documentary 'Milked’’. No mention was made of the format of the segment, or that Dr Mackle would be joining the segment.

[6]  The programme was advertised the previous day on AM’s Facebook page as including an item with Huriwai, Milked Documentary Producer, ‘Challenging one of New Zealand’s biggest industries’.

[7]  Following the broadcast, Discovery apologised to Huriwai, accepting it ‘should’ve let [Huriwai] know that’ it was ‘following up with someone from DairyNZ to have their view on the topic’.

[8]  Huriwai complained the broadcast breached the fairness standard of the Free-to-Air Television Code of Broadcasting Practice as:

• He was ‘interviewed without being properly informed of the nature of the programme or his proposed contribution’ (contrary to Guideline 11b). Huriwai referred to the Codebook’s definition of ‘informed consent’ requiring a person understand ‘the true context and purpose of the contribution.’
• Specifically, Huriwai was asked to do an interview about Milked but was not informed prior to the interview that Dr Mackle would get a right of response, misleading Huriwai ‘about the nature of the interview’. Huriwai found out Dr Mackle would be interviewed at the conclusion of Huriwai’s own interview and was not given an opportunity to respond. ‘It was quite simply an ambush.’
• ‘Chris was cut off mid-sentence when’ the presenter moved to interview Mackle in the second half of the segment.
• ‘Tim Mackle was clearly properly informed of his role prior to the interview, possibly even given a list of questions (whilst Chris did not). He would have been told he would be following Chris. This creates an immediate imbalance as Tim was more prepared than Chris for the nature of the broadcast.’
• ‘This is especially offensive given we drove to Auckland for the interview, making the effort to be there for this important kaupapa, whilst Tim simply zoomed in… Had Chris been properly informed that Tim would be following him, he would have conducted the interview differently.’
• The banner at the bottom of the screen stated ‘7.50 DEFENDING NZ DAIRY FARMING’, presenting ‘the issue in a very unbalanced way as it frames Chris as attacking NZ dairy farming. This is supported in the teaser, and online publication, where the segment was referred to as a ‘debate’ with the online publication referring to Huriwai and Mackle going ‘head to head’. Framing the segment in this way was unfair to Huriwai (who did not know about the proposed framing) and inaccurate as the segment was not a debate as Huriwai did not have an opportunity to respond.

The broadcaster’s response

[9]  Discovery NZ Ltd acknowledged the online publication mischaracterised the broadcast as a ‘debate’ and amended it accordingly, but did not uphold the complaint, noting:

• Huriwai was invited on to the programme to talk about Milked. He was provided with ample opportunity to explain his views and the broadcast acknowledged Milked has ‘attracted international acclaim for its exposé of the New Zealand dairy industry’.
• The documentary is generally considered controversial, investigating how being the world's most successful exporter of milk may be problematic for New Zealand. Discovery considered ‘it was important to provide the audience with an alternate viewpoint to that of the “Milked” documentary.’ Huriwai therefore should have expected contrary views to be explored in response to his film.
• Discovery accepted the use of ‘debate’ in the teaser was ‘problematic and contributes to a different impression.’ The statement was ‘ad-libbed and was intended to refer to the discussion which followed.’
• ‘AM genuinely wanted to interview Mr Huriwai about his documentary off the back of its winning the Humanitarian Award. As outlined above, in the interests of balance in the Broadcast, AM also interviewed a dairy industry representative. The Committee does not agree that this constitutes unfairness to Mr Huriwai or that Dr Mackle's interview changed the nature of Mr Huriwai's participation in the programme.’
• ‘The Committee does not agree that presenting an alternate viewpoint led to any damage or harm to Mr Huriwai's reputation and maintains that the audience would not have been left with an unduly negative impression of Mr Huriwai as a result of the dairy industry being given a right of reply.’

The standard

[10]  The fairness standard¹ states broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. A consideration of what is fair will depend on the nature and context of the programme, including the public significance of the broadcast.² Programme participants and people referred to in a broadcast have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.

Our analysis

[11]  We have watched the broadcast and read the correspondence listed in the Appendix.

[12]  As a starting point, we considered the right to freedom of expression. This includes the value and public interest in the matters covered in the programme. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.³

[13]  The value of the broadcast, and corresponding public interest is high given it was discussing issues of public importance for Aotearoa New Zealand. Both dairy farming (which accounted for around 3% of NZ’s GDP in 2020)⁴ and its environmental impacts are important in light of ‘bleak predictions on our climate’ (as noted in the broadcast).

[14]  The purpose of the fairness standard is to protect the dignity and reputation of those featured in programmes.⁵ Participants and contributors should be informed, before a broadcast, of the nature of the programme and their proposed contribution, except where justified in the public interest, or where their participation is minor in the context of the programme.⁶ Whether informed consent was required or has been obtained from a participant or a contributor may be a relevant consideration in determining whether that participant or contributor was treated fairly.⁷

[15]  The issue before us is whether Huriwai was treated unfairly. He submits he was treated unfairly as he did not understand the ‘nature’ of the programme and the ‘true context and purpose’ of his contribution. He argues his consent was invalidated in the circumstances considering he did not know of:

• Dr Mackle’s involvement and did not have a chance to respond
• the broadcast’s framing as a debate, with inherently adversarial positions.

[16]  Discovery apologised for not informing Huriwai of Dr Mackle’s involvement, but maintains Huriwai was treated fairly as he ‘should have expected contrary views to be explored in response to his film’ given its controversial nature.

[17]  The Codebook provides the following guidance regarding informed consent:⁸

Informed consent is provided where a person identifiable in a broadcast:

• is aware they are contributing to the broadcast
• understands the true context and purpose of the contribution
• understands the nature of the consent and its duration
• freely agrees to contribute.

[18]  It is well established the depth and quality of informed consent varies according to the particular circumstances.⁹ An informed consent to a major surgical procedure, for example, is something very different to an informed consent in relation to being interviewed on live television as in this context. We consider informed consent was provided here having regard to the context and nature of this broadcast, particularly:

• Huriwai co-produced the subject documentary. As part of both the production of the documentary, and its later release and promotion, he would have been familiar with media dealings.¹⁰
• Huriwai was asked to discuss his documentary on air. This was well within his area of expertise and profession and did not require further detail to allow for adequate preparation.
• It is generally unnecessary to provide interviewees with a list of specific questions that will be asked.¹¹ Such a requirement would unduly restrict 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.
• Contrary views on the topic were reasonable and should have been expected given the nature of the documentary, and the CEO of DairyNZ was an appropriate person to interview (as the documentary is critical of the dairy industry).

[19]  We do not consider the nature of the broadcast materially deviated from what could reasonably have been expected when Huriwai consented to appear on the programme. Specifically, we do not consider the failure to inform Huriwai as to who would be interviewed following his discussion invalidated his consent to the interview. In reaching this conclusion, we acknowledge:

• Huriwai stated he was denied the opportunity to modify his behaviour as he may have considered appropriate if aware Dr Mackle would be interviewed subsequently.
• Huriwai was potentially denied the opportunity to decide if the broadcast aligned with his personal goals; a foundational principle of informed consent and mana motuhake (self-determination).¹²

[20]  We acknowledge Huriwai’s submissions that Dr Mackle was ‘properly informed of his role’ prior to the interview. However, even if we assume Discovery provided different information to each interviewee, the fairness standard does not require equivalent treatment and, in this case, any differential treatment did not affect the application of the standard. The question for us is whether Huriwai was treated unfairly, including whether the audience would have otherwise been left with an unduly negative impression of Huriwai from the programme as a whole (including the interview with Dr Mackle). We do not consider Huriwai was treated unfairly, or that the audience would have been left with such an impression:

• Although the broadcast contained statements relating to the segment being a ‘debate’, or otherwise suggesting inherently adversarial positions, this was not the case (as was clear from the segment itself).
• When interviewing Huriwai and Dr Mackle, Chan-Green took a contrary position to each interviewee and challenged them from that position (a common interviewing technique).¹³ We do not consider, and there is no submission raised, the interviews themselves were unfair. In our view, Huriwai came across well and clearly articulated his position. His interview, along with the supportive introduction, ensured a fair presentation of the documentary.
• Given the opportunities for Huriwai to present his perspective, we consider the subsequent interview was unlikely to create such a negative impression. For example, while Dr Mackle suggested Milked lacked balance, Huriwai had already commented in his interview that he felt they’d presented both sides of the story.
• Further, in light of Chan-Green’s oppositional interviewing technique, a right of response was not required, particularly as Huriwai was not adversely affected by Dr Mackle’s involvement in the broadcast.

[21]  Considering the high public value in the broadcast given the subject matter of the documentary in NZ, we do not consider Discovery’s approach to the interview resulted in unfairness to Huriwai justifying regulatory intervention.

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

Susie Staley
Chair
2 August 2022    

Appendix

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

1  Huriwai’s formal complaint to Discovery – 7 May 2022

2  Discovery’s response to complaint – 3 June 2022

3  Huriwai’s referral, and further information, to the Authority – 7 and 9 June 2022

4  Discovery’s confirmation of no further comments – 27 June 2022

5  Huriwai sending through pre-interview correspondence, and screenshot of AM programming – 29 June 2022

6  Discovery’s response to correspondence – 4 July 2022

¹ Standard 11, Free-To-Air Television Code of Broadcasting Practice
² Guideline 11a
³ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
⁴ New Zealand Productivity Commission | Te Kōmihana Whai Hua o Aotearoa The Dairy Sector in New Zealand: Extending the Boundaries (Wellington, October 2020)
⁵ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁶ Guideline 11b
⁷ Guideline 11c
⁸ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 62 at 7.1 (our emphasis)
⁸ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 62 at 7.2 and Albery and Radioworks Ltd, Decision No. 2011-038 at [44]
¹⁰ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21; and see John Boynton “Māori activist Chris Huriwai takes on New Zealand's dairy industry in new documentary 'Milked'” Newshub (online ed, 26 October 2021)
¹¹ Although in different contexts, responding to allegations raised towards the organisation, see The University of Otago and Television New Zealand Ltd, Decision No. 2019-082 at [39]–[45] and [91] regarding demanding specific questions prior to an interview; and New Zealand Fire Service and Mediaworks TV Ltd, Decision No. 2016-017 at [43]–[55] where one issue was whether the organisation was provided with sufficient detail about what would be covered in the interview
¹² See BL and MediaWorks Radio Ltd, Decision No. 2017-025 at [38] for a similar finding
¹³ See for example Jones and Radio New Zealand Ltd, Decision No. 2021-139 at [12]; and Garrett and Radio New Zealand Ltd, Decision No. 2017-079 at [16]