Jaspers and CanWest TVWorks Ltd - 2007-060
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Mike Jaspers, Press Secretary to the Hon Dr Michae
- Mike Jaspers (Hon Dr Michael Cullen's Press Secretary)
Channel/StationTV3 # 3
Complaint under section 8(1)(a) of the Broadcasting Act 1989
Campbell Live – host stated that Finance Minister the Hon Dr Michael Cullen had “refused to be interviewed by us since October last year” – allegedly inaccurate
Standard 5 (accuracy) – conflicting evidence from the parties as to how many invitations were extended to Dr Cullen but agreed that three invitations were made and declined – upholding the complaint would place too great a limit on broadcaster’s freedom of expression – not upheld
This headnote does not form part of the decision.
 An item on Campbell Live, broadcast on TV3 at 7pm on Thursday 26 April 2007, discussed the latest rise in New Zealand’s interest rates as decided by the Reserve Bank. The host, John Campbell, noted that this was the eleventh rise in interest rates since the beginning of 2004. He explained that foreign investors were profiting, but exporters and New Zealanders with mortgages were “hurting”. The host said:
Now we’d like to ask the Finance Minister to explain how this is good, but he refused to appear on this programme. In fact, Michael Cullen has refused to be interviewed by us since October last year.
 This statement was accompanied by a graphic showing seven calendar pages for the months of October to April, each showing Dr Cullen’s face, and marked with a red cross.
 The host stated that it seemed particularly important for Dr Cullen to give an interview on that day, because two political parties, a major trade union, and the Business Roundtable had all released media statements questioning aspects of the management of the interest rates issue. The host then said:
So Michael Cullen, who’s in charge, really should front on this – either this is what he intended or it’s not, and either way it seems to need explaining.
 The Hon Dr Michael Cullen’s press secretary, Mike Jaspers, made a formal complaint to CanWest TVWorks Ltd, the broadcaster, regarding the host’s comments and the graphics used in the programme. He explained that Dr Cullen had refused to be interviewed because he did not want to discuss a monetary policy decision in light of the statutory independence of the Reserve Bank.
 Mr Jaspers referred to the host’s statement that Dr Cullen had “refused to be interviewed by us since October last year”, and the graphic showing each calendar month marked with a red cross. This, he contended, implied that Dr Cullen had refused at least one request to discuss economic policy during each of those months.
 The complainant said he had asked Campbell Live repeatedly for the dates of the implied refusals, but this information had not been forthcoming. He stated that he could only recall one refusal in April 2007 to discuss economic policy, and to the best of his knowledge there were no requests in any other month since October 2006.
 Mr Jaspers maintained that the programme was in breach of Standard 5 (accuracy) and guideline 5b, as the host’s claim would have misled viewers.
 The complainant nominated Standard 5 and guideline 5b of the Free-to-Air Television Code of Broadcasting Practice which provide:
Standard 5 Accuracy
News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.
Broadcaster's Response to the Complainant
 In its response to the complainant, CanWest included comments from the host of Campbell Live. He contended that the complainant’s interpretation of the calendar graphic was incorrect, as it had simply been used to show that it had been six months since Dr Cullen had last appeared on the programme. The host gave details of four occasions in August and September 2006 when he had “repeatedly put in requests for interviews with Dr Cullen”. He also noted that Dr Cullen had declined to be interviewed on 12 April 2007.
 The host recalled speaking to Mr Jaspers in March 2007 about the rise in interest rates, and Mr Jaspers told him that Dr Cullen was reluctant to comment in a fashion that might be seen as trying to influence the Reserve Bank governor in any way. He also mentioned another Campbell Live reporter speaking to Mr Jaspers repeatedly in February 2007 in an attempt to interview Dr Cullen about foreign ownership of New Zealand real estate. The host commented that Dr Cullen had accepted only one interview – in October 2006 – and had refused another eight.
 Having reviewed the host’s comments and the item, the broadcaster stated that it did not consider the claim made in the item would have misled viewers. In the circumstances, it said, the item accurately reflected the refusal by Dr Cullen to engage with the programme on topics that were relevant to issues within his cabinet responsibility. It found that Standard 5 was not breached.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Mr Jaspers referred his complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. He reiterated his view that the calendar graphic had implied that Dr Cullen had refused at least one request to be interviewed on the programme during each of the months shown. Mr Jaspers stated that he could only recall one refusal in April 2007 to discuss economic policy, adding:
To the best of my knowledge there were no requests in any other month since October to discuss economic policy live on the show. That means five other months without a request for a live appearance.
 Mr Jaspers noted that the host’s references to requests in August and September 2006 were irrelevant because the “sweeping claim” he complained about related to another time period. With respect to the request for an interview about foreign investment, Mr Jaspers stated that this was not a request for a live interview and therefore it fell outside the claim made by the host. On that occasion, he said, Dr Cullen had been “busy or in Hawkes Bay”, and the reporter had been “more than happy” to receive written answers to his questions from Mr Jaspers.
 In summary, the complainant said that Dr Cullen had turned down only two requests for interviews in April 2007, and had appeared on the programme on 1 May to discuss economic policy. Mr Jaspers said he could not recall any requests being made in March 2007 and, even if that was correct, there were “still four other months at issue”.
 The complainant maintained that there was clearly no pattern of refusals as implied by the host’s statement.
Broadcaster’s Response to the Authority
 In its response to the Authority, CanWest disputed the complainant’s assertion that the calendar graphic implied Dr Cullen had refused at least one request each month. It wrote:
There is no implication created that an invitation was refused in each of the months shown. The graphic was intended to and did show (in visual form) that it was six months since the last time Dr Cullen had appeared on this show. Ticking or marking off dates – days, months or years – visually in this way is fairly standard television practice.
 Furthermore, the broadcaster noted that the host did not state that Dr Cullen had refused an invitation each month, he said “indeed Michael Cullen has refused to be interviewed by us since October of last year”. It contended that the statement and graphic were not inaccurate.
 CanWest provided some further comments from the host of Campbell Live on the question of how many requests Dr Cullen had refused over the six month period referred to in the programme. He maintained that an interview had been declined on 8 March 2007.
 The host noted that it was difficult to recall all the attempts that had been made, as they were not usually recorded. On the morning of each show as potential interviews were canvassed, he said, inquiries would be made as to Dr Cullen’s availability from his press secretary. If the answer was in the negative, they would immediately move on without recording the attempt.
 The host stated that they also treated media releases such as “Finance Minister Michael Cullen said today he would not comment on the offer by Dubai Aerospace Enterprise for Auckland International Airport” as a formal refusal to be interviewed. If they were not treated as such, he said, journalists would effectively be instructed to ignore such media statements and call Mr Jaspers to receive the same information in person. The host wrote:
In short, in the necessarily efficient daily machinations of political reporting: “no” is taken as “no”.
 The host noted that between October 2006 and April 2007, there had been five occasions on which the Reserve Bank had made formal determinations about the level of the Official Cash Rate. The host could specifically recall having requested interviews with Dr Cullen on two of these occasions, and was “certain we canvassed the idea of discussing economic direction with the Minister of Finance on at least some of these occasions”. He added that because Campbell Live was a nightly programme they had to accept refusals and move on quickly.
Complainant’s Final Comment
 Mr Jaspers reiterated that Dr Cullen had appeared on Campbell Live on 11 October 2006, and had only refused to appear once prior to the programme complained about (on 2 April 2007). He noted that CanWest was unable to establish any other request for an interview with Dr Cullen, and that accorded with his recollection that no requests had in fact been made. Mr Jaspers wrote:
TV3 object to having the onus placed on them to substantiate the facts that form the basis of the statements made on their programme but TV3 has an obligation to check their facts prior to broadcast. That is how accuracy is achieved. In this case TV3 chose to make a strong representation suggesting that Dr Cullen was stubbornly refusing to appear on the programme.
The fact that TV3 can now only support their representation by supposition and hypothesis shows that they did not have full knowledge of the facts and therefore the accuracy of the statement prior to broadcasting the programme.
 Referring to the host’s statement that they would “typically” have asked Dr Cullen for comment when the Reserve Bank had made formal determinations, Mr Jaspers contended that this was “mere supposition” and unlikely for at least three of those five occasions given that the cash rate remained unchanged. He provided the Authority with a list of the cash rate changes.
 Mr Jaspers disputed the broadcaster’s assertion that a “refusal” to appear could be concluded from a formal statement issued by Dr Cullen such as that issued in respect of the Dubai Aerospace offer. Accurate reportage of that statement, he said, would be that the Minister could not comment because of a conflict of interest as shareholding Minister in Air New Zealand.
 In the complainant’s view, the broadcaster was really saying that it was the feeling among Campbell Live staff that Dr Cullen had constantly refused to be interviewed. That was not a fact, he said, and should not have been reported as such.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Mr Jaspers’ complaint relates to the host’s statement “In fact, Michael Cullen has refused to be interviewed by us since October last year” and the accompanying graphic showing each of the calendar months between October and April marked with a red cross.
 Looking at the graphic used in the programme, the Authority disagrees with the complainant that this implied Dr Cullen had been approached for an interview at least once during each of those months. However, it does consider that the statement and accompanying graphic would have left viewers with the impression that Dr Cullen had been approached on a number of occasions between October 2006 and April 2007. Exactly how many requests had been made was, in the Authority’s view, open to interpretation by the viewer.
 Both the complainant and the broadcaster agree that Dr Cullen refused requests to be interviewed on 12 and 26 April 2007. Although Mr Jaspers argued that the request on 8 March did not apply because it was not a request for a “live interview”, the Authority considers that this would have been viewed legitimately by the broadcaster as a refusal to appear on the programme.
 The broadcaster has also argued that it was entitled to consider press releases from the Minister’s office as “refusals” to appear on the programme. The Authority disagrees; it considers that the word “refusal” implied to viewers that an actual request was made by Campbell Live and declined by Dr Cullen. Although a press release may have effectively pre-empted any such invitation, the use of the word “refused” would have left viewers with the specific impression that requests had been made.
 Accordingly, the parties agree that three invitations were made and declined during the period specified by the host, but Mr Jaspers disputes the broadcaster’s submission that other undocumented requests would have been made. In these circumstances, the Authority can only conclude that there is evidence on both sides, and that each party genuinely believes its own version of events.
 In deciding whether the above facts support the impression left by the broadcast that Dr Cullen had been approached for and declined interviews on a number of occasions between October 2006 and April 2007, the Authority must take into account a broadcaster’s right to freedom of expression contained in section 14 of the New Zealand Bill of Rights Act 1990. Since three requests and refusals have been established, the Authority considers that it could either uphold or decline to uphold the complaint. In such a situation the Authority must adopt an interpretation which is consistent with the right to freedom of expression. Therefore it declines to uphold the complaint.
For the above reasons the Authority declines to uphold the complaint.Signed for and on behalf of the Authority
25 September 2007
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Mike Jaspers’ formal complaint – 4 May 2007
2. CanWest’s decision on the formal complaint – 8 June 2007
3. Mr Jaspers’ referral to the Authority – 20 June 2007
4. CanWest’s response to the Authority – 26 July 2007
5. Mr Jaspers’ final submission – 6 August 2007