Keane and Television New Zealand Ltd - 2010-083
- Peter Radich (Chair)
- Leigh Pearson
- Tapu Misa
- Mary Anne Shanahan
- Les Keane
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Sunday – item interviewed aid worker Nicola Enchmarch about being caught up in an Israeli commando raid on a flotilla off Gaza in which nine activists died – chief Israeli spokesperson interviewed about the raid – allegedly in breach of controversial issues, accuracy, fairness, and discrimination and denigration standards
Standard 4 (controversial issues – viewpoints) – topic of the raid was a controversial issue of public importance – broadcaster made reasonable efforts and gave reasonable opportunities to present significant points of view on the raid – not upheld
Standard 5 (accuracy) – material that was not included did not make the item misleading – complainant did not identify any material points of fact he considered to be inaccurate – not upheld
Standard 6 (fairness) – Israeli spokesperson given ample opportunity to present Israel’s point of view – individuals and organisations taking part or referred to treated fairly – not upheld
Standard 7 (discrimination and denigration) – broadcaster did not encourage discrimination against or denigration of Israelis – not upheld
This headnote does not form part of the decision.
 An item on Sunday, broadcast on TV One at 7.30pm on Sunday 13 June 2010, contained the first television interview with aid worker Nicola Enchmarch, who was on board an aid ship called the Mavi Marmara which was raided by Israeli commandos while en route to Gaza. Nine activists were killed during the raid.
 Introducing the item, the presenter said:
It’s her first television interview. She’s Nicola Enchmarch, the Kiwi activist who was right there on the humanitarian aid ship, Mavi Marmara, as Israeli commandos stormed aboard.
It’s a riveting account, accompanied by equally riveting new images just released that give some balance to the Israeli version of events. Who attacked who? Who was the aggressor? These images go a step further to clarifying that. Of course, it’s still hotly contested by both sides. Tonight we’ll cross to Jerusalem as well, but first, Nicola Enchmarch back in London, home after living through that bloody ordeal en route to Gaza.
 A Sunday reporter conducted an interview with Ms Enchmarch who presented her version of events. She condemned Israel’s raid on the boat, saying that the soldiers had been unnecessarily violent and that it was the Israelis’ fault that nine people were killed.
 The presenter then introduced the upcoming Israeli perspective saying, “Well, the Israeli position on that bloody ordeal in international waters remains staunch in the face of withering international criticism. We cross to Jerusalem next.”
 The presenter then interviewed Mark Regev, the chief Israeli spokesperson on the incident. Mr Regev outlined Israel’s position including its belief that the commandos acted in self-defence and had only started firing live rounds after being attacked by some of the activists with knives and poles.
 Concluding the interview, the presenter stated, “So two very different versions of the same event and yes, still very much in dispute and a story that’s not about to go away any time soon”.
 Les Keane made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item had breached broadcasting standards.
 The complainant argued that the item was inaccurate because it did not “show that the whole flotilla was organised by a British MP with known anti-Semitic views”. He also believed that it was inaccurate because “it did not show that there was a possibility that the whole show was manipulated by anti-Semitics and Jihadists for their own purposes”, and there was a possibility that “the activists are involved in something beyond their ideals”.
 Mr Keane contended that the item was unfair because it did not mention that Israel delivered “hundreds of truckloads” of humanitarian aid to Gaza every week, and the item should have explained that “Israel gave Gaza to the Palestinians, even though they knew it meant the terrorists would use it for daily attacks”. He also argued that “you could see the hate on the interviewer’s face” when questioning Mr Regev.
 The complainant considered that the item was unbalanced and biased against Israel, saying that Israel’s position was vilified and “never shown to be as true” as Ms Enchmarch’s version. He also considered that the broadcast was discriminatory and derogatory toward Israel, as its spokesperson “was told they were deliberately trying to cause the bloodshed”, while the peace activist was allowed to have her say about whether Israel’s actions were right or wrong.
 Standards 4, 5, 6 and 7 and guidelines 4a, 5a and 7a of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These provide:
Standard 4 Controversial Issues – Viewpoints
When discussing controversial issues of public importance in news, current affairs or 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.
No set formula can be advanced for the allocation of time to interested parties on controversial issues of public importance. Significant viewpoints should be presented fairly in the context of the programme. This can only be done by judging each case on its merits.
Standard 5 Accuracy
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/or
• does not mislead.
The accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.
Standard 6 Fairness
Broadcasters should deal fairly with any person or organisation taking part or referred to.
Standard 7 Discrimination and Denigration
Broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.
This standard is not intended to prevent the broadcast of material that is:
• factual, or
• the expression of genuinely held opinion in news, current affairs or other factual programmes, or
• legitimate humour, drama or satire.
Broadcaster's Response to the Complainant
 With respect to Standard 4 (controversial issues – viewpoints), TVNZ contended that, while the Israeli raid on the Mavi Marmara while en route to Gaza was a matter of public interest and was widely reported in sections of the New Zealand media, it was not a controversial issue of public importance as required by the standard.
 However, the broadcaster considered that, if the matter did reach the required threshold, appropriate viewpoints had been sought and presented. It noted that Sunday spoke directly to Ms Enchmarch, who was on board the Mavi Marmara at the time of the attack, and that Mr Regev had provided the Israeli perspective on the incident.
 Further, TVNZ considered that the events surrounding the Mavi Marmara activists’ deaths were the source of much international debate and confusion. It argued that Sunday had made it clear to viewers that “events surrounding the attack on the flotilla were the source of much international disagreement”. It declined to uphold the complaint that the item breached Standard 4.
 Looking at accuracy, the broadcaster stated that it could not “identify any errors of fact in the Sunday item”. It considered that the omission of material referred to by the complainant had not resulted in viewers being misled and it argued that the item contained sufficient information on the events that took place.
 TVNZ reiterated that viewers had gained perspectives from both sides, and that the item had made it clear that events surrounding the attack on the flotilla were the source of much international disagreement. It declined to uphold the complaint that the item breached Standard 5.
 Turning to fairness, the broadcaster stated that it could not identify any unfairness in its coverage of the boarding of the flotilla. It considered that Mr Regev was well-equipped to respond to the presenter’s questioning and that he had been given adequate time to explain Israel’s position.
 TVNZ contended that, while robust, the presenter’s questioning of Mr Regev was respectful and appropriate. It therefore declined to uphold the complaint that Standard 6 had been breached.
 Considering Standard 7 (discrimination and denigration), the broadcaster stated that a high threshold needed to be crossed before a breach of the standard would be found. It said that “comments will not always breach the prohibition against denigration simply because they are critical of a particular group, because they offend people, or because they are rude”.
 TVNZ noted that the Authority had consistently defined denigration as blackening the reputation of a class of people, and discrimination as encouraging the different treatment of members of a particular group, to their detriment. It argued that no offence was intended by the Sunday item reporting on the boarding of the Mavi Marmara and the deaths of the activists. It contended that, “Neither of the two people interviewed in the item engaged in hate speech” and it did not believe that any of the reporting reached the threshold to be considered to have discriminated against or denigrated Israel. It declined to uphold the complaint.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Mr Keane referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 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.
Standard 4 (controversial issues – viewpoints)
 Standard 4 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.
 We consider that the topic of the Israeli raid on the Mavi Marmara while en route to Gaza was a controversial issue of public importance to which the standard applied. We also find that the Sunday item contained a discussion of this issue.
 In our view, TVNZ sought and presented the appropriate significant viewpoints on the raid. We note that, in addition to interviewing Ms Enchmarch, the chief Israeli spokesperson, Mr Regev, was interviewed at length and we consider that he was given ample opportunity to present Israel’s point of view.
 In these circumstances, we conclude that the broadcaster made reasonable efforts and gave reasonable opportunities to present significant points of view on the controversial issue of public importance under discussion. Accordingly, we decline to uphold the Standard 4 complaint.
Standard 5 (accuracy)
 Standard 5 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.
 We note that the complainant has not identified any material points of fact which he considered to be inaccurate.
 With respect to the information Mr Keane argued should have been included in the item, we consider that it was neither essential nor material to the subject under discussion. Israel’s naval blockade of Gaza is a complex matter and TVNZ could not be expected to include every piece of information in a relatively short current affairs item.
 Accordingly, we decline to uphold the complaint that the item breached Standard 5.
Standard 6 (fairness)
 The fairness standard requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme.
 We note that, while Mr Keane nominated Standard 6 in his complaint, he did not identify which individuals or organisations he believed had been treated unfairly by the broadcaster. Rather, he contended that the item was unfair because of information that was not included.
 We consider that the item adequately conveyed both points of view and that the presenter, while robust in his questioning, was equally respectful to both sides.
 In our view, TVNZ treated the individuals and organisations taking part and referred to in the broadcast fairly, and we therefore decline to uphold the Standard 6 complaint.
Standard 7 (discrimination and denigration)
 Standard 7 protects against broadcasts which encourage denigration of, or discrimination against, a section of the community.
 Mr Keane considered that the broadcast was discriminatory and derogatory toward Israel, as its spokesperson “was told they were deliberately trying to cause the bloodshed”, while the peace activist was allowed to have her say about whether Israel’s action was right or wrong.
 The term “denigration” has consistently been defined by the Authority as blackening the reputation of a class of people (see, for example, Mental Health Commission and CanWest RadioWorks1). The term “discrimination” has been defined by the Authority as encouraging the different treatment of members of a particular group, to their detriment (see Teoh and TVNZ2).
 It is also well-established that in light of the requirements of the Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration in contravention of the standard (see, for example, McCartain and Angus and The Radio Network3).
 In our view, the items did not contain any statements relating to Israelis in general, but were confined to reporting on the actions of the Israeli military. While the items contained viewpoints that were critical of those actions, comments will not necessarily breach the prohibition against denigration simply because they are critical of a particular group. In this case, we find that the criticism levelled at the actions of the Israeli military were a legitimate part of a story in which events were strenuously disputed by both sides of the conflict. We note that guideline 7a specifically states that this standard is not intended to prevent the expression of genuinely held opinion in the context of a news or current affairs programme.
 Accordingly, we decline to uphold the complaint that the item breached Standard 7.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
14 September 2010
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Les Keane’s formal complaint – 14 June 2010
2. TVNZ’s response to the formal complaint – 9 July 2010
3. Mr Keane’s referral to the Authority – 9 July 2010
4. TVNZ’s response to the Authority – 16 July 2010
1Decision No. 2006-030
2Decision No. 2008-091
3Decision No. 2002-152