BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Newstalk ZB – news item reported that Nicholas Keesing undertook an election smear campaign “to get revenge” – allegedly in breach of controversial issues, accuracy and fairness standards – broadcaster upheld complaint under Standards 5 and 6 – action taken allegedly insufficient

Findings
Standard 4 (controversial issues – viewpoints) – item did not discuss a controversial issue of public importance – not upheld

Standard 5 (accuracy) and Standard 6 (fairness) – broadcaster upheld complaint under two standards and offered corrective statement – action taken sufficient – not upheld

This headnote does not form part of the decision.

Broadcast

[1]  A news item broadcast on Newstalk ZB at 12pm on 23 November 2008 reported that “Newstalk ZB can now reveal what lies at the bottom of a smear campaign, in one of the country’s key electorates during the Election. It’s now being probed by police”. A reporter went on to say that:

Labour’s Epsom candidate Kate Sutton was targeted with what she says were defamatory brochures dropped in hundreds of mailboxes on Election eve. I’ve been able to confirm the pamphlets were signed off and personally delivered by Nicholas Keesing, who clashed politically with Kate Sutton while at Auckland University. Mr Keesing has today told me he undertook the campaign to get revenge. He claims the issue is an historic and ongoing feud. Kate Sutton has so far refused to respond to our calls.

Complaint

[2]  Nicholas Keesing made a formal complaint to The Radio Network Ltd (TRN), the broadcaster, alleging that the item was unbalanced, inaccurate and unfair.

[3]  Mr Keesing considered Standard 4 (controversial issues – viewpoints) had been breached because the comments attributed to him were “fabricated... by ZB staff”. He noted that Newstalk ZB had refused to broadcast a retraction or correction, even though, he contended, it was still a matter of public interest.

[4]  The complainant argued that the statement that “brochures [were] dropped in hundreds of mailboxes on Election eve” was based on an erroneous Herald article. He said he had told all interviewers that between 13,000 and 15,000 flyers were distributed over nine days, by a “committed group of people”. He considered the item had deliberately used that description “to make the action sound like the powerless actions of an embittered individual”. Mr Keesing noted that the chief of Newstalk ZB had received one of the flyers two days before the election.

[5]  Referring to guideline 5c to the accuracy standard, the complainant noted that Newstalk ZB had failed to broadcast a correction at the earliest opportunity “because of possible action from various parties”. He said he was told over the phone that “[Newstalk ZB] are not interested in the story anymore”.

[6]  Mr Keesing also maintained that Newstalk ZB had fabricated the statement that “Nicholas Keesing... clashed politically with Kate Sutton whilst at Auckland University”. He said he “was never an opponent, never ran against her for any student executive position; this was made clear in the flyer and during interviews”. He considered Newstalk ZB had tried to create the impression of “petty politics and not the serious matter of attempting to bring to public attention Sutton’s malicious claim” against him. He said he had never been affiliated with any political party.

[7]  The complainant contended that the item was inaccurate in stating that “Mr Keesing has said he undertook the campaign to get revenge. He claims the issue is an historic and ongoing feud”. He said he doubted very much that he had said the action was solely to exact revenge, and rather had used the words “redress” and “resolution”. Newstalk ZB had refused to provide a transcript of their conversation, he said, which would show how the broadcaster had twisted the interview because it disapproved of his actions.

[8]  For the same reasons, Mr Keesing believed that the broadcast was unfair to him in breach of Standard 6. The broadcast contained supposed quotes which Mr Keesing maintained were not the same as the comments he had made in the interview. He also referred to the “whole slant of the broadcast”.

Standards

[9]  TRN assessed the complaint under Standards 4, 5 and 6 of the Radio Code of Broadcasting Practice. Mr Keesing also nominated guideline 5c. 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.

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.

        Guideline 5c

In the event that a material error of fact has occurred, broadcasters should correct it at the earliest opportunity.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[10]  Looking at Standard 4, TRN noted that, following a Herald on Sunday article on 23 November, Newstalk ZB had phoned Mr Keesing for comment and interviewed him off air. It said that Mr Keesing seemed to be “under the misapprehension” that he was not interviewed by Newstalk ZB.

[11]  The contents of that interview were then turned into a news story, the broadcaster said, “conveying [Mr Keesing’s] acceptance of responsibility for the letters circulated through much of Epsom”. Ms Sutton was not contacted, it said, because she had already indicated through other media that she was not commenting other than to say that she considered the pamphlets to be defamatory and was considering legal action.

[12]  TRN maintained that, given the content of the circulars and the comments from Ms Sutton, it was not appropriate to report any more than what was included in the news item. It declined to uphold the Standard 4 complaint.

[13]  Turning to accuracy, TRN said it believed “in the main, the story that ran was a fair interpretation of the interview”. It noted that in the interview Mr Keesing had stated that because he possessed the information referred to in the pamphlet he considered he should share that information with people who may have been considering voting for Ms Sutton.

[14]  The broadcaster said the complainant had referred to wanting “resolution” because he had apparently been barred from taking legal action against Ms Sutton. It said Mr Keesing indicated that the circular was for the purpose of achieving “resolution” in relation to his grievance against Ms Sutton, and that therefore characterising his actions as “revenge” was not unreasonable.

[15]  However, TRN accepted that Mr Keesing had not used the precise words “to get revenge” as had been reported in the item. It therefore upheld the Standard 5 complaint.

[16]  For the same reasons, TRN also upheld Mr Keesing’s complaint that the item was unfair in breach of Standard 6.

[17]  The broadcaster stated that it had:

...no intention of widening the discussion on this matter but [was] prepared to run a short news item at an equivalent time (12 noon on a Sunday), to clarify that while you accept that you were responsible for disseminating the circular, you did not expressly say that the circular was designed to get “revenge”.

Referral to the Authority

[18]  Dissatisfied with TRN’s response, Mr Keesing referred his complaint to the Authority under section 8(1B)(b)(ii) of the Broadcasting Act 1989. He said TRN’s finding fell “short of what I envisaged as adequate resolution”.

Further Submission from the Complainant

[19]  Mr Keesing considered that the news item had “cost [him] much respect around the university”. He said that people who were “non-committal” were now strongly negative as a result of the words “defamatory” and “revenge” being used in the broadcast. Many people had commented on the incident in blogs, emails and phone calls, he said.

Broadcaster’s Response to the Authority

[20]  TRN made no further comments on the referral, but attached the pamphlet that was circulated by Mr Keesing in the Epsom electorate prior to the General Election.

Authority's Determination

[21]  The members of the Authority have listened to 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.

Action Taken – Standard 5 (accuracy) and Standard 6 (fairness)

[22]  The Authority notes that, having upheld Mr Keesing’s complaint about the use of the word “revenge” under two standards, TRN offered to broadcast a short news item at an equivalent time to the first item, clarifying that while Mr Keesing had accepted responsibility for the circular he had not said it was designed to get “revenge”. The Authority considers that the action taken by the broadcaster was entirely reasonable and sufficient in the circumstances.

[23]  Accordingly, the Authority declines to uphold the action taken complaint under Standards 5 and 6.

Standard 5 (accuracy)

[24]  Mr Keesing also complained that two other aspects of the item were inaccurate. TRN did not uphold those parts of the complaint.

Statement that the pamphlets were “signed off and personally delivered by Nicholas Keesing” on the eve of the Election

[25]  The complainant stated that the pamphlets had in fact been delivered by a group of people over the course of nine days. TRN argued that the broadcast was a “fair interpretation” of the reporter’s interview with Mr Keesing.

[26]  Standard 5 requires news coverage to be accurate in relation to “all material points of fact”. In the Authority’s view, how the pamphlets were delivered and who delivered them was not material to the item. The important point was that Mr Keesing had admitted that he was responsible for the creation and distribution of the pamphlets. In these circumstances, the Authority finds that the statement was not material to the item, and therefore Standard 5 did not apply. It declines to uphold this part of the complaint.

Statement that Mr Keesing had “clashed politically” with Ms Sutton

[27]  The complainant maintained that he “was never an opponent” and had never run against Ms Sutton “for any student executive position”. In the Authority’s view, the statement was too general and ambiguous to have left listeners with any particular impression about Mr Keesing’s dealings with Ms Sutton. The words “clashed politically” could have implied a number of things, including having an opposing viewpoint to Ms Sutton on matters of student politics. While the Authority accepts that this aspect of the item was open to interpretation, it does not consider in the overall context of the brief news item that the ambiguity amounted to a breach of the accuracy standard. The Authority declines to uphold the accuracy complaint.

Standard 4 (controversial issues – viewpoints)

[28]  Standard 4 requires that when controversial issues of public importance are discussed, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view in the same programme or in other programmes within the period of current interest.

[29]  The brief news item that is the subject of this complaint reported Mr Keesing’s disclosure that he was the person responsible for the publication and circulation of a pamphlet about the Labour candidate for the Epsom electorate, Kate Sutton, which was distributed just before the 2008 General Election. As the report focused on one particular incident, the Authority considers that it did not discuss a controversial issue of public importance as envisaged by the standard.  

[30]  Accordingly, the Authority concludes that Standard 4 does not apply, and declines to uphold the complaint.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
9 April 2009

Appendix

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

1.         Nicholas Keesing’s formal complaint – 2 December 2008
2.         TRN’s response to the complaint – 19 December 2008
3.         Mr Keesing’s referral to the Authority – 6 January 2009
4.         Further comments from Mr Keesing – 21 January 2009
5.         TRN’s response to the Authority – 22 January 2009