BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
RadioWorks news item broadcast on More FM, Radio Live and Radio Pacific – complainants had been convicted of failing to move stock ahead of flooding – news item reported that Federated Farmers would fund appeal – SPCA said appeal condoned negligence – one named farmer reported as saying appeal should not be supported by Federated Farmers as flooding was not unusual and, on the occasion resulting in the conviction, neighbours had offered to move cattle – allegedly lacked balance, inaccurate, unfair and breached privacy

Findings
Principle 2 (law and order) – not applicable – not upheld

Principle 3 (privacy) – no private facts disclosed – not upheld

Principle 4 (balance) – complaint dealt with under Principle 5

Principle 5 (fairness) – no unfairness in broadcaster’s dealings with the complainants – no unfairness with comments advanced – not upheld

Principle 6 (accuracy) – complaint dealt with under Principle 5

Principle 9 (tape retention) – not applicable – not upheld

This headnote does not form part of the decision.

Broadcasts

[1] The complainants had been convicted and fined in the Kaikohe District Court for not ensuring the physical and health needs of some of their cattle by failing to move them to safer ground ahead of flooding. Early morning news items broadcast on the RadioWorks network on 6 and 7 July 2005 reported that Federated Farmers was supporting an appeal against these convictions.

[2] The item on 6 July 2005 included a comment from the SPCA chief executive who said that if she was a farmer, she would be irate that Federated Farmer funds were to be used “to prop up people who had been clearly negligent and found that in law”.

[3] The item on 7 July carried a similar view from a named Northland farmer who said that flooding was not unusual and that neighbours had contacted the complainants at the time of the recent flood and “they even offered to move the cattle”.

[4] Support for the appeal from Federated Farmers was contained in an item broadcast on 8 July. This item was not complained about.

[5] The items were broadcast on More FM, Radio Live, and Radio Pacific.

Complaints

[6] Jan and Bruce Jonson complained initially to More FM in Whangarei and Radio Pacific in Auckland. Describing the items on 6 and 7 July as “incorrect and defamatory”, they said that it was proved in court that they had taken all reasonable steps to move the stock. Moreover, their neighbours had neither telephoned to advise that their land was flooding nor offered to move their stock.

[7] The Jonsons explained that they had, after requesting help from their neighbours, moved the stock at the first opportunity. They had not been found guilty of negligence. On hearing the comment in the 7 July broadcast made by the named farmer, they had telephoned that person and were told that she did not know which neighbour had offered help and, moreover, she could not remember who had told her about the offer.

[8] The item broadcast on 8 July advised that the complainants could not be “reached for comment”. The Jonsons said that the reporter left a message on their answerphone at 9.07am on 7 July, after the broadcast of the two items complained about. In their call in response, they had left a message on his answerphone.

[9] The Jonsons contended that the items breached Principles 2, 3, 4, 5, 6 and 9 of the Radio Code of Broadcasting Practice, and sought the broadcast of an apology.

Principles

[10] The Principles in the Radio Code of Broadcasting Practice nominated by the complainants read:

Principle 2 Law and Order

In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the maintenance of law and order.

Principle 3 Privacy

In programmes and their presentation, broadcasters are required to maintain standards consistent with the privacy of the individual.

Principle 4 Balance

In programmes and their presentation, broadcasters are required to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Principle 5 Fairness

In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.

Principle 6 Accuracy

In the preparation and presentation of news and current affairs programmes, broadcasters are required to be truthful and accurate on points of fact.

Principle 9 Tape Retention

For a period of 35 days after broadcast, broadcasters are required to be able to provide a copy of the tapes of all open line and talkback programmes, and all outside broadcast news and current affairs coverage. For the same period, broadcasters are also required to retain, or be able to obtain, a tape or script of all news or current affairs items.

Broadcaster's Response to the Complainants

[11] The response from RadioWorks in Northland dealt with the part of the complaint about the reporter’s actions in trying to contact the complainants. The broadcaster said that “an honest attempt” had been made to speak to the complainants, and the response from Federated Farmers was included in the 8 July broadcast. It noted that the complainants had been given an opportunity to comment in a broadcast on 11 July, but had declined to do so. The broadcaster said that it would not be broadcasting an apology, but gave the complainants another opportunity to comment. The broadcaster sent the complainants a transcript of each of the broadcasts, and a copy of the SPCA press release.

Complainants’ Response to the Broadcaster

[12] In their reply to RadioWorks, Northland, the Jonsons contended that the reporter should have contacted them or their solicitor before broadcasting the item reporting the SPCA’s press release. Reiterating that the item was factually incorrect and contained defamatory comments, the Jonsons said that the information about the neighbour’s offer to move the cattle was not part of the evidence in court and that they did not know the named farmer who was the source of the information; their inquiries disclosed that that person ran a fruit shop in Kaikohe. They added that one neighbour had finally managed to contact them during the evening of the first day of the flood when it was too late for action to be taken.

[13] The Jonsons explained again their personal situation at the time of the floods, noting that they did not blame their neighbours for not helping as the neighbours were not aware of their situation. That information would have been available to the reporter, however, if he had researched the matter properly.

Broadcaster’s Second Response to the Complainants

[14] Explaining that it was responding to the complaint that the broadcasts breached broadcasting standards, and that defamation was a separate issue, CanWest RadioWorks Ltd declined to uphold the complaint.

[15] As it found nothing in the items which threatened the maintenance of law and order, CanWest declined to uphold the Standard 2 complaint. As the broadcast material had been retained, the Standard 9 complaint was not upheld.

[16] CanWest said the balance requirement in Standard 4 was not applicable as the item had not dealt with a controversial issue of public importance.

[17] Observing that there was no dispute that the complainants had been convicted and fined, CanWest said that the item had dealt with the possibility of Federated Farmers supporting an appeal. Maintaining that it was unable to determine whether the comments reported in the item were true, CanWest said that the opinions expressed were reasonable. Further, in light of the opportunities given for comment, CanWest considered that the items had not been unfair to the complainants.

[18] As the primary focus of the item – the Federated Farmers decision to fund the appeal – was confirmed in the item broadcast on 8 July, CanWest said that the items did not contain any inaccuracies.

[19] As for the privacy complaint, CanWest said the Jonsons were not identified and, therefore the standard was not applicable. Moreover, the item had not revealed any private facts, as the complainants’ conviction was public information.

Referral to the Authority

[20] Dissatisfied with CanWest’s decision, the Jonsons referred their complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

[21] Dealing first with Principles 2 and 4, the complainants stated that the prosecution involved the interpretation of some of the provisions in the Animal Welfare Act 1997. As it could have far-reaching implications for farmers and anyone who kept animals, they maintained it was an issue of public importance.

[22] As for Principle 5 (fairness), the complainants said, contrary to the broadcaster’s claim, they were in fact named in the items broadcast on 6 and 7 July. The reporter had also telephoned a neighbour, but there had been no attempt to contact them. In the court case, they recalled, the SPCA as prosecutor had tried, but failed, to prove that they had offers of assistance from local farmers.

[23] The complainants expressed the opinion that the SPCA, although it could not prove all its allegations in court, was now using the media to continue the prosecution. The judge, they wrote, had dismissed the charges of wilful neglect. The appeal did not deal with this matter in view of that dismissal. Outlining the events leading to the charge, they said:

The judge acknowledged that we took all reasonable steps to move our animals and the knowledge that they were caught in the flood did not come until it was too late for us to be able to move them.

[24] That information, they added, was available from a neighbour who gave evidence in court, but who had not been approached by the broadcaster. Broadcasters, they argued, had the responsibility to ensure that comments made were accurate. The complainants also considered that the SPCA seemed unable to record events accurately.

Broadcaster’s Response to the Authority

[25] In view of the item’s focus on the support from Federated Farmers, rather than on the convictions, CanWest maintained that the item did not deal with an issue of controversial importance. It also maintained that the news item broadcast nationally did not mention the Jonsons by name. It said that an audio of the item broadcast locally was not available.

[26] Expressing sympathy for Mrs Jonson’s personal circumstances at the time of the flood, CanWest pointed out that those matters did not raise issues of broadcasting standards. CanWest said that the convictions were a matter of public record and the SPCA – “a reliable source of information” – had released a media statement commenting on the intention by Federated Farmers to assist with an appeal. Outlining the efforts undertaken, CanWest contended that reasonable efforts had been made to get a response from the Jonsons.

Complainants’ Final Comment

[27] The Jonsons made three points in their final comment.

[28] It was the broadcaster’s responsibility to ensure that material taken for broadcast from a press release was accurate. Furthermore, although Federated Farmers had spoken to them about an appeal, it required more details before making any commitment about supporting an appeal.

[29] Their names had been included in the items broadcast locally. An item had included a statement from a local farmer without explaining why she had been invited to comment.

[30] In their opinion fairness in this case meant that they had to be given an opportunity to comment. They argued that the broadcaster had not made reasonable efforts to contact them.

Further Correspondence

[31] In response, CanWest explained that it had run the story on 6 July based on the SPCA media release, after checking print coverage of the case against the Jonsons in the District Court. The item referring to the comments of a local farmer was run on 7 July, CanWest continued, after the named farmer had contacted the local station. CanWest confirmed that the Jonsons were named in both stories. The reporter had tried to contact the Jonsons on 7 July. He had also spoken to a Federated Farmers representative on the 7th and his story in support of the Jonsons ran on 8 July. The reporter eventually spoke to the Jonsons on the 11th, at which time they refused to comment. Noting that the coverage of the trial had referred to charges involving animal cruelty, CanWest maintained that the coverage in the items made it clear that the convictions related to failing to move cattle to higher ground.

[32] Noting that the Judge on sentencing referred to the Jonsons’ “cavalier approach to the care of their animals”, CanWest wrote:

The [Standards] Committee can appreciate that this is an upsetting time for the Jonsons. It is always uncomfortable to be the focus of media attention particularly when it arises out of circumstances that are distressing. However, the RadioWorks reporting of the events was compliant with the Code provisions and appears to be “in line” with other media reporting around the same time.

[33] The Jonsons made four points in response. First, they criticised CanWest for relying on the SPCA’s media release, which they described as inaccurate, given its role as prosecutor. Second, they said that the named Northland farmer had told them that she had been contacted by the broadcaster, but she was confused and had no knowledge of the court proceedings. Third, they repeated their contention that the reporter should have contacted them before the broadcast of the initial item. Finally, they maintained that the newspaper reports of the case had not been accurate, and their use again indicated inadequate research by the broadcaster.

Authority's Determination

[34] The members of the Authority have listened to a tape of the broadcast complained about, as used on the national network, and have read the correspondence listed in the Appendix. The correspondence includes transcripts of the items broadcast locally. The Authority determines the complaint without a formal hearing.

Principle 4 (Balance)

[35] Broadcasters are subject to a number of requirements when a broadcast deals with a controversial issue of public importance. The Authority disagrees with CanWest’s contention that the items did not deal with such an issue. The media coverage supplied by CanWest clearly indicates that the scope of the Animal Welfare Act, as interpreted by the judge in convicting the Jonsons, was a concern to farmers. That concern was highlighted by Federated Farmers’ decision to fund an appeal.

[36] However, while the items did discuss a controversial issue, the Jonsons’ complaint was not that the item failed to canvass their views about this wider issue. Rather, the focus of their concern was that the broadcasts had portrayed them unfairly.

[37] In situations where a programme has addressed a controversial issue, but the complaint focuses on the complainants’ individual concerns about the way they were portrayed, the practice of the Authority has been to subsume the balance complaint into the consideration of fairness (see Decision No. 2004-145). The Authority considers that this is a case where that course of action is again appropriate. The balance complaint is therefore dealt with under fairness (Principle 5).

Principle 6 (Accuracy)

[38] While the complainants alleged inaccuracies in their complaint to the broadcaster, on referral to the Authority their submissions focused more on their concern that the inaccuracies they identified resulted in an unfair broadcast. For this reason, the Authority subsumes the accuracy complaint under its consideration of Principle 5 (fairness).

Principle 5 (Fairness)

[39] The items were unfair, the complainants argued, because given the items’ focus on their prosecution, they should have been approached for comment. Further, the items gave an inaccurate account of the facts surrounding the events leading to their convictions.

[40] The complainants noted three specific concerns:

• The first broadcast was wrong when it reported the SPCA’s reference to their “negligence”.
• Second, the reported comment from the local farmer was inaccurate.
• Finally, the reporter’s efforts to contact them were insufficient.

[41] Members of the Authority have read Judge RJ Johnson’s judgment and his notes on sentencing. The judgment includes a detailed account of the events which gave rise to the charges.

[42] The first item on 6 July included the SPCA’s statement that the Jonsons were “clearly negligent”. The Authority considers that this remark was neither unfair nor inaccurate. While a finding of negligence was not an element of the offence for which the Jonsons were convicted, the Authority points to the following comment in the judge’s sentencing notes:

What you are guilty of was taking a cavalier approach to the care of your animals, or should I say to the responsibility for them, in the face of, what I found to be, a clearly foreseeable risk; … . I accept that you were at the time heavily occupied with other obligations, but you did not pause, in the face of the obvious signs, to do what the evidence showed other farmers did, … .

[43] In the view of the Authority it is neither inaccurate nor unfair to describe a “cavalier approach” to a “clearly foreseeable risk” as negligent. Accordingly, the Authority determines that the use of the word “negligence” did not breach Principle 5 (fairness).

[44] Turning to the second issue, the Authority notes that in its summary of the events which occurred at the time of the flooding, the judgment recorded the efforts made by one neighbour to contact the Jonsons. The judgment also noted that when the neighbour finally spoke to them, she told them that she had received another offer to assist. In view of this detail, the Authority finds that the comment ascribed to the local farmer – that neighbours had offered to move the cattle – was accurate and thus fair.

[45] Finally, the Authority addresses the complaint regarding the reporter’s allegedly inadequate efforts to contact the Jonsons. The Authority records that the reporter tried to contact the Jonsons on 7 July, but was unsuccessful. By the time the reporter made contact with the Jonsons a few days later, they were not inclined to comment.

[46] The Jonsons’ stance is understandable given their convictions and the recent public criticism they had attracted. In declining to comment, however, the Jonsons missed an opportunity to offer their perspective.

[47] The Authority considers that the efforts made by the broadcaster were appropriate given the brief nature of each item in the ongoing story. In view of the focus on the appeal in the item broadcast on 8 July, rather than on the actions which led to the convictions, it concludes that the broadcaster’s efforts to reach the Jonsons were sufficient and that the broadcasts did not breach the fairness standard.

Principle 2 (Law and Order)

[48] The Authority regards this standard as usually being relevant only when a broadcast in some way encourages listeners or viewers to disregard their legal responsibilities. As this did not occur on this occasion, the Authority considers that it is not applicable. It declines to uphold this matter.

Principle 3 (Privacy)

[49] Initially CanWest denied that the complainants were named in any of the items about which they had complained. CanWest later acknowledged that the complainants had been named in the items broadcast by More FM in Northland.

[50] The privacy principles applied by the Authority are essentially concerned with two situations: the offensive disclosure of private facts and intentional intrusion in the nature of prying. As the items reported public information and comment about that information, the Authority finds that the privacy standard was not endangered. It declines to uphold this complaint.

Principle 9 (Tape retention)

[51] As the broadcaster provided transcripts of the news items broadcast on More FM in Northland on 6, 7 and 11 July, and a tape of the news items broadcast on the RadioWorks network on 6 and 7 July, the Authority finds that the broadcaster complied with its obligations under principle 9.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
1 November 2005

Appendix

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

1. Jan and Bruce Jonson’s complaint to More FM Whangarei – 10 July 2005
2. Jan and Bruce Jonson’s complaint to Radio Pacific, Auckland – 10 July 2005
3. RadioWorks Northland’s response to the complaints (plus attachments) – 11 July 2005
4. Jan and Bruce Jonson’s formal complaint to RadioWorks Northland – 17 July 2005
5. CanWest RadioWorks Ltd’s response to the formal complaint – 5 August 2005
6. Jan and Bruce Jonson’s response to CanWest RadioWorks – 14 August 2005
7. Jan and Bruce Jonson’s referral to the Broadcasting Standards Authority – 14 August 2005
8. CanWest’s response to the Authority – 19 September 2005
9. Jan and Bruce Jonson’s final comment – 27 September 2005
10. CanWest’s response – 5 October 2005
11. Jan and Bruce Jonson’s reply – 11 October 2005