BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint that an item on Te Ao with Moana breached the balance and accuracy standards. It found the broadcaster made reasonable efforts to present significant views which discussed the issue of police conduct in New Zealand in the context of the George Floyd incident in the United States. The Authority found the interviewee’s behavioural history was not a material fact relevant to the audience’s understanding of the programme. The Authority however found Māori Television’s initial response to the complainant unsatisfactory and reminded it of its duties with respect to formal complaints.

Not Upheld: Balance, Accuracy

The broadcast

[1]  An episode of Te Ao with Moana, broadcast on Māori Television on 15 June 2020, focussed on the issue of police conduct in New Zealand following the George Floyd incident in the United States. It began by depicting an incident at the Hastings police station:

At first glance you could say what happened to [AB] was unremarkable. We’ve seen police handcuff people like this.

(A clip of [AB] on the ground struggling.)

And we’ve seen scenes in the cell like this before.

(A clip of police holding down someone in a holding cell.)

But what is remarkable is that most of the story unfolds on video. You will be able to judge for yourselves whether an ordinary man on an ordinary day should have been arrested, charged and put into police cells for more than 24 hours.

(The item then crosses to interviewee 1, Khylee Quince)

Quince: but as the American actor Will Smith said last week racism isn’t new, it’s just that it’s now being filmed. And that’s what we’ve got here, we’ve captured a moment that’s a pretty, unfortunately in this country, a pretty everyday occurrence. 

This story begins on March the 27th last year, when [AB] went to the Hastings police station to lay a noise complaint about a truck outside his house.

…

[AB] had recently returned with his family from 10 years working in heavy construction in Western Australia. He has never been in trouble with the police before. In fact, he once sat the exams to become a police officer himself. So what went wrong that day…?

[2]  The item continued with an interview with AB, further clips of the interview with Ms Quince, and an interview with Criminologist, Emilie Rakete. An interview with Police Commissioner Andrew Coster discussing Māori, treaty partnership and the criminal justice system followed.

[3]  In considering this complaint, we have viewed a recording of the broadcast and read the correspondence listed in the Appendix.

The complaint – key concerns

Handling of the initial enquiry and formal complaint

[4]  KG complained about the following:

• When KG initially contacted Māori Television through the programme’s Facebook Messenger to make an enquiry about the formal complaints process, the broadcaster responded by providing KG with two email addresses, one of which was the private address of the journalist, Sarah Hall.
• KG contacted Ms Hall who advised AB of KG’s intention to lodge a formal complaint. Ms Hall asked AB to dissuade KG from doing so writing: ‘Kia Ora [AB] that would be great if one of the whānau can persuade him not to make a formal complaint. It takes time for the lawyers to go over. You can only make a complaint if the story is inaccurate [or] unbalanced and I don’t believe it was.’

Breach of broadcasting standards

[5]  KG argued the item breached the accuracy and balance standards of the Free to Air Television Code of Broadcasting Practice for the following reasons:

• Accuracy

(a)  The way that AB was portrayed was inconsistent with his behavioural history.

(b)  The programme, at times, referred to AB by the wrong name. While KG raised this as a matter of ‘unprofessionalism’ we consider this is properly addressed under the accuracy standard.

• Balance

(a)  The story was ‘opportunistic and irresponsible broadcasting especially given the current domestic and global angst towards police’.

(b)  ‘Immediate and extended whānau were not made aware of the interview nor invited to participate’ and therefore did not have the opportunity to express concerns regarding [AB’s] behavioural history.

(c)   It ‘only showed heavily edited security camera and mobile phone footage to mislead viewers into believing that police used excessive force’ and did not mention it is ‘standard practice’ for non-compliant people to be handled as he was in the cells.

Failure to maintain the tikanga, kawa and mana of the whānau and the marae

[6]  KG also complained that Māori Television had failed to maintain tikanga and kawa of the marae saying:

• The whānau were not given the opportunity to express concerns particularly about AB’s history.
• ‘Immediate and extended whānau were not allowed the ability to ensure our tikanga, kawa and mana were upheld. No powhiri was conducted, no tikanga was adhered to.’
• ‘At no stage were anyone else including our marae committee aware that this was happening and being filmed on our marae. There is clear signage erected around our marae advising filming is prohibited.’

The broadcaster’s response

[7]  Māori Television responded:

Handling of the complaint

• KG’s initial message on Facebook Messenger was treated as an informal complaint, and KG was given the option to contact Ms Hall directly about his concerns.
• The complaint process and contact information for Māori Television is accessible on its website.
• The broadcaster acknowledged that giving KG personal email addresses was an ‘unintended oversight’ and it has since directed the relevant personnel to ensure complainants are referred to the complaints page on its website.
• After initially telling the complainant it found no evidence Ms Hall had emailed AB about KG’s pending formal complaint, Māori Television acknowledged, after further investigation, that Ms Hall had, using her personal email address, corresponded with AB asking AB to dissuade KG from complaining.

Breach of broadcasting standards – Balance

• ‘The Black Lives Matter campaign received considerable media coverage, generated ongoing public debate and conflicting opinion on actual, implied or underlying racism in policing and lawful use of force by the police including in New Zealand.’
• Balance was achieved by the interview with Mr Coster, who commented on the relationship between Police and Māori, armed response teams, and the country-wide protests against police and racism in the United States.
• ‘The News Story supported public discourse and debate by giving voice to conflicting opinions and also seeking the opinion of independent subject matter experts.’

Breach of broadcasting standards - Accuracy

• ‘In its opening statement…[the] Te Ao With Moana Presenter clearly signals that the incident will be covered under the umbrella of the Black Lives Matter campaign, sparked by the death of George Floyd at the hands of white policemen and from the perspective of [AB], the Māori man involved in the incident.’
• ‘The subject matter of [the story] is lawful policing and racial biases in the light of the recent developments throughout the globe on this matter, that are sparked by the death of George Floyd, laid out in the context of [AB]’s painful personal experience. It is not about [AB]’s personality, history or his personal dealings.’

Permission to film in the marae

• Māori Television confirmed that the film crew sought, and were granted, permission to film the interview on the marae by custodians of the marae on the day.

The standard(s)

[8]  The balance standard (Standard 8) states 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. The standard helps ensure competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.¹

[9]  The purpose of the accuracy standard (Standard 9) is to protect the public from being significantly misinformed.² It states broadcasters should make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact. It should not mislead.

Our analysis

[10]  The right to freedom of expression is important in a democracy. Our starting point is to weigh the right to freedom of expression against the harm that may have been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.

[11]  The broadcast in question discussed police conduct, an issue of high public interest, particularly in relation to police treatment of Māori. The broadcast contributed to the public’s search for truth and knowledge and nurtured social and cultural growth.³ The threshold of harm that must be met to uphold the complaint is therefore high. 

The handling of KG’s complaint by Māori Television

[12]  Māori Television handled KG’s initial enquiry in a manner that is unsatisfactory and inconsistent with the spirit of the Broadcasting Act 1989. We highlight our concern about what appeared to be Ms Hall’s attempt to influence the complainant through AB. The unprofessional handling of complaints by broadcasters may have the effect of compounding or aggravating any harm that may have been caused to the complainant.

[13]  We remind Māori Television of the broadcaster’s duty under the Broadcasting Act 1989 to receive and consider formal complaints. The onus is also on the broadcaster to ensure complaints are directed to the correct person within the organisation. We note Māori Television has now taken steps to ensure this.

Balance

Does the broadcast discuss a controversial issue of public importance to which the standard applies?

[14]  The balance standard only applies when a controversial issue of public importance is being discussed in a news, current affairs or factual programme.

[15]  An issue of public importance is something that would have a significant potential impact on, or be of concern to, members of the New Zealand public. A controversial issue will be one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate. In most cases, human interest or personal stories will not be considered controversial issues of public importance.⁴ 

[16]  At the time of the broadcast, the following events were being discussed in the media:

• the ending of the armed response team trial by the New Zealand police⁵
• the death in the United States of George Floyd as a result of police brutality⁶ which led to media stories about police violence and racism in New Zealand.⁷

[17]  The item was not a human interest story focussed on AB. AB’s experience was used to introduce the wider issue of police use of force and racism in New Zealand.

[18]  The broadcast accordingly discussed a controversial issue of public importance.

Did the broadcaster make reasonable efforts to present significant viewpoints?

[19]  The standard requires broadcasters to 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. KG argued the broadcaster should have included additional information about AB’s character and police procedures as its omission would cause the audience to be misled about the police’s approach.

[20]  Key considerations in determining this question are audience expectations and whether they were likely to be misinformed by the alleged omission.

[21]  The following factors are relevant in assessing these considerations:⁸

• The programme’s introduction and the way it was presented:  Te Ao with Moana is known as a programme that discusses national and international stories through a Māori lens. The item’s introduction clarified that it examined police conduct in New Zealand in the context of the George Floyd incident in the United States.
• The nature of the discussion and whether viewers could reasonably be expected to be aware of other views: The item began with AB’s experience, and led to the wider discussion. Audiences can reasonably be expected to know this was one incident unlikely to represent police conduct overall.

[22]  The programme, as a whole, examined wider issues of racial bias, where the following perspectives were presented:

• interviews with two experts
• a statement from the police which offered the police perspective regarding the particular incident
• an interview with Mr Coster who discussed the wider issues around police conduct and treaty partnership in relation to the criminal justice system.

[23]  In this context, the audience was unlikely to expect additional information of the nature described by the complainant or to be misled by its omission. To the extent any potential harm was caused by the omission, it was minimal and did not outweigh the public interest value of the programme. 

[24]  We therefore do not uphold the complaint under the balance standard.

Accuracy

[25]  The key accuracy issues related to:

• The accuracy of the following statements:
  • ‘You will be able to judge for yourselves whether an ordinary man on an ordinary day should have been arrested, charged and put into police cells for more than 24 hours.’
  • ‘He has never been in trouble with the police before…In the meantime [AB] now has three convictions against his name after having a clean record his whole life.’
• Whether the programme, as a whole, was misleading in the way it portrayed AB.

The application of the accuracy standard

[26]  The accuracy standard does not apply in respect of the statement AB is an ‘ordinary man’. The standard applies only to statements or matters of fact, not statements clearly distinguishable as analysis, comment or opinion.⁹ Whether or not a person is ‘ordinary’ is a subjective matter, a non-verifiable opinion.¹⁰

[27]  The accuracy standard does apply in respect of the other two matters:

• The statements regarding AB’s previous clean history are matters of fact as they relate to verifiable matters, expressed affirmatively, without any suggestion they were presented as impressions or opinion.
• Programmes can also be misleading by omission.¹¹ Accordingly, the alleged misleading portrayal of AB is capable of being addressed under the accuracy standard.

Materiality

[28]  The standard, however, is only concerned with material inaccuracy that will significantly affect the audience’s understanding of the programme.¹²

[29]  We do not consider the statements relating to AB’s police record, and the way AB was portrayed, material to the programme as a whole:

• The episode was focussed on the issue of police conduct and racial biases in New Zealand within the context of the George Floyd incident in America.
• It was not a story about AB, but rather about how he was dealt with in a particular incident. His personal history or record was not relevant to his treatment on this occasion.
• What was relevant was AB’s conduct and attitude toward the police on the day. This was in the broadcast and dealt with in the journalist’s interview of AB, noting he was: ‘being a bit provocative’.

[30]  In this context, the matters raised as allegedly inaccurate or misleading were unlikely to result in the audience being significantly misinformed.

[31]  Finally, we acknowledge KG’s concern regarding the unprofessionalism of occasionally using the wrong name to describe AB. However, given the focus of the programme, this inaccuracy is also unlikely to significantly affect the audience’s understanding of the programme.

[32]  We therefore do not uphold the complaint under the accuracy standard.

Failure to maintain the tikanga, kawa and mana of the whānau and the marae

[33]  We acknowledge the distress and disappointment expressed by KG in connection with the alleged failure of Māori Television to observe tikanga and kawa, including when filming in the marae. However, we do not have the jurisdiction to consider or intervene on these matters, as they do not raise issues of broadcasting standards capable of being resolved by our formal complaints procedure.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

16 November 2020

Appendix

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

1  KG’s formal complaint to Māori Television – 22 June 2020

2  Māori Television’s response to KG – 21 July 2020

3  KG’s referral to the Authority – 23 July 2020

4  KG’s further comments on his referral to the Authority – 27 July 2020

5  Māori Television’s response to KG’s referral – 6 August 2020

6  KG’s further comments on Māori Television’s response – 25 August 2020

7  KG clarifying further information – 7 October 2020

8  Māori Television’s correspondence on the issue of permission – 15 October 2020

¹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
² Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
³ Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
⁴ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁵ See for example: “Police ending armed response teams after trial – Commissioner” RNZ (online ed, New Zealand, 9 June 2020), “Armed police not what NZ needs” Newsroom (online ed, New Zealand, 8 June 2020), “Police commissioner confirms no more armed response teams in New Zealand” Newshub (online ed, New Zealand, 9 June 2020)
⁶ See for example: “George Floyd Death: Charges against officer increased” RNZ (online ed, New Zealand, 4 June 2020), “Minneapolis police chief says George Floyd’s death was ‘murder’” Stuff (online ed, New Zealand, 24 June 2020)
⁷ See for example: “The whakapapa of police violence” The Spinoff (online ed, New Zealand, 4 June 2020), “As New Zealand police pledge to stay unarmed, Maori activists credit US protests” NPR (online ed, United States of America, 11 June 2020)
⁸ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁹ Guideline 9a
¹⁰ Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion
¹¹ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
¹² Guideline 9b