Lee and MediaWorks TV Ltd - 2016-044 (14 October 2016)
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Paula Rose
- Chris Lee
ProgrammeThe Nation and Newshub
BroadcasterMediaWorks TV Ltd
Channel/StationTV3 # 4
[This summary does not form part of the decision.]
An episode of The Nation discussed whether colonial figures were still worthy of commemoration, particularly when their actions were re-evaluated against 21st century values. An edited version of the report also appeared on Newshub. Both items featured excerpts from an interview with historian, Dr Jock Phillips, who provided comments on a South Auckland memorial to Colonel Marmaduke Nixon. Dr Phillips described Colonel Nixon’s involvement in events that occurred at Rangiaowhia in 1864 as ‘an appalling act of genocide’ and ‘a terrible atrocity’. The Authority did not uphold a complaint that the items lacked balance and were inaccurate. The items did not purport to provide a comprehensive examination of what occurred at Rangiaowhia. Rather, this incident was used as one example in the context of a wider debate over whether New Zealand’s colonial figures were still deserving of such memorials, and alternative viewpoints on the incident were therefore not required. The Authority found that Dr Phillips’ comments could be distinguished from the rest of the item as statements of analysis, comment or opinion, rather than statements of fact that were required to be accurate.
Not Upheld: Balance, Accuracy
 An episode of The Nation featured a report on colonial figures which were commemorated by statues or memorials in Auckland. In light of the controversy surrounding the ‘Rhodes Must Fall’ movement at the University of Cape Town and Oxford University,1 the report questioned whether these figures were still worthy of commemoration, particularly when their actions were re-evaluated against 21st century values. An edited version of the report also appeared on Newshub.
 Both items featured excerpts from an interview with historian, Dr Jock Phillips, who provided comments on a South Auckland memorial to Colonel Marmaduke Nixon. Dr Phillips described Colonel Nixon’s involvement in events that occurred at Rangiaowhia in 1864 as ‘an appalling act of genocide’ and ‘a terrible atrocity’.
 Chris Lee complained that these items were inaccurate and lacked balance. He was particularly concerned about Dr Phillips’ use of the words ‘genocide’ and ‘terrible atrocity’ to describe the events at Rangiaowhia. Mr Lee provided substantial submissions which, in his view, demonstrated that there was little to no evidence supporting Dr Phillips’ claims. He also said that the use of the terms ‘atrocity’ and ‘genocide’ should have alerted the broadcaster that it needed to ensure the claims were accurate and that balance was provided.
 The issue is whether the broadcast breached the balance and accuracy standards, as set out in the Free-to-Air Television Code of Broadcasting Practice.2
 The report first appeared on The Nation, broadcast on TV3 on 2 April 2016. A shorter, edited version of the report was broadcast on Newshub later that evening. The members of the Authority have viewed a recording of each of the broadcasts and have read the correspondence listed in the Appendix.
Nature of the programme and freedom of expression
 The Nation is a New Zealand political current affairs show which includes reports, interviews and analysis of contemporary issues.3
 The item subject to complaint drew from the recent ‘Rhodes Must Fall’ protest movement which began in March 2015, originally at the University of Cape Town.4 The movement focused on the removal of a prominent statue of Cecil Rhodes at the University. Rhodes was a colonial figure, who, for the purposes of the movement, was seen as a symbol of institutional racism and colonial oppression in South Africa, and the statue was eventually removed in April 2015.
 The item featured interviews with historians about various colonial figures around New Zealand and examined whether, when assessing their actions against modern-day values, these figures were still worthy of commemoration. The item posed the question of whether such statues should remain or if they should be pulled down, to which the historians gave varying answers.
 As noted above, both The Nation and Newshub items featured excerpts from an interview with Dr Jock Phillips, a prominent New Zealand historian. In the longer excerpt featured on The Nation, Dr Phillips commented on what was introduced by the reporter as the ‘so-called battle for Rangiaowhia in 1864’:
It was an appalling act of genocide, really. You know, he went into a village, Rangiaowhia, which there’s some evidence there had been an agreement that that would be where women and children could seek refuge. The colonial troops went in there, set fire to the area, and there’s some evidence that they shot women and children as they came out of burning buildings. It was a terrible atrocity.
 This interview was edited for Newshub, during which Dr Phillips said ‘...[there’s] some evidence that they shot women and children as they came out of burning buildings. It was a terrible atrocity’.
 We consider the item subject to complaint carried high value in terms of the exercise of freedom of expression. It discussed an issue relevant to New Zealanders and to our history, and presented an opportunity for experts to provide the audience with an alternative lens through which to view our colonial past. The Nation, by its nature, is about ideas and concepts designed to challenge viewers. This value in the programmes must be weighed against the level of harm alleged to have been caused by the broadcast, in terms of the underlying objectives of the balance and accuracy standards.5 The harm alleged in this instance is that Dr Phillips’ comments were inaccurate and viewers were not provided with alternative perspectives to enable them to reach their own views about what occurred at Rangiaowhia.
Was the item sufficiently balanced?
 The balance standard (Standard 8) 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. The standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.6
The parties’ submissions
 MediaWorks argued that, while it accepted that the Rangiaowhia incident was one that could be of concern to the New Zealand public, ‘...the subject does not meet the threshold required to be considered controversial because in our view, while memorials to colonial figures may “excite conflicting opinion”, the discussion in question did not occur in the context of “ongoing public debate”.’
 MediaWorks further argued that the Rangiaowhia incident ‘was only briefly referred to as part of the wider discussion of colonial memorials. The programme did not purport to present an in-depth examination of the incident and therefore it was not necessary to include a variety of viewpoints’. However, MediaWorks nevertheless sought comment from The Nation’s executive producer, who said, ‘we sought the views of a range of historians and looked at the key arguments for and against the removal of some statues and historical monuments’.
 Mr Lee disagreed with MediaWorks’ argument. He said that differing views were provided only on the issue of whether statues of colonial figures should be removed, not on the issue of what occurred at Rangiaowhia. He said that ‘the broadcast took an internationally controversial series of events [referring to the ‘Rhodes Must Fall’ movement] and did its best to engender similar controversy and fervour in New Zealand against various statues here.’ Mr Lee argued there was ‘significant ongoing public debate about revisionist history and separatism’ in New Zealand.
 A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.7
 The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.8 A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.9
 We have had careful regard to the two items, and to the parties’ submissions, and we have reached the view that the events at Rangiaowhia in 1864 did not amount to a controversial issue of public importance that was discussed in this programme, as envisaged by the standard.
 The Authority has found in previous decisions that, while a historic event may be of great public interest at the time and may continue to be of historical interest, the later discussion or analysis of such an event will not necessarily be considered a controversial issue of public importance.10 In the decision Axford, Bate and Oldham and Television New Zealand Limited, the Authority said:11
...we consider that these are issues of historical interest that cannot legitimately be described as having “topical currency” or being of “public importance” in contemporary everyday life. The programme simply allowed one person to advance an alternative viewpoint on events that occurred some 2,000 years ago, and left viewers to draw their own conclusions on the validity of that perspective.
 We consider the present case is similar, in that a historical event has been cited with reference to recent controversy and a historian has been given the opportunity to provide an alternative viewpoint on that historic event. While what occurred at Rangiaowhia may still be debated by historians, we do not consider it is an issue that has topical currency or which has excited ongoing public debate. Accordingly, the broadcaster was entitled to ask Dr Phillips, as a prominent historian, for his views and opinions. The broadcaster was not required, in the interests of balance, to obtain and present alternative views on what occurred at Rangiaowhia.
 Further, the main focus of the programme was the wider debate presented by the item – considering whether memorials, such as that of Cecil Rhodes in Cape Town and Oxford, should be kept intact. As the complainant noted, alternative views on this issue were presented. The item did not purport to present a comprehensive or in-depth investigation into what occurred at Rangiaowhia, and viewers would not have expected that in the context. Dr Phillips’ interview simply provided one example of a controversial figure in New Zealand history, suggesting that some evidence supports the view that, in light of today’s perspectives, a memorial commemorating Colonel Nixon may no longer be justified.
 Overall, we do not think that viewers would have been left misinformed or unable to form their own opinions. The Nation, a show that canvases challenging opinions and ideas, is likely to attract a discerning audience. We consider that viewers would have understood that Dr Phillips’ comments reflected his own opinion and analysis about a historic event. We therefore do not uphold the complaint under Standard 8.
Was the item inaccurate or misleading?
 The accuracy standard (Standard 9) 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. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.12
The parties’ submissions
 Mr Lee’s primary concern appeared to be ‘...whether or not, in the light of the highly inflammatory nature of the words used [by Dr Phillips], MediaWorks made any attempt to assure themselves that the comments were accurate’. Mr Lee accepted that the use of the words ‘terrible atrocity’ would be appropriate if the events had occurred as described by Dr Phillips. However, he said he had ‘yet to see any evidence that that claim is true in the case of the Rangiaowhia affray’ and was concerned that viewers were provided with no real context or proof for the claims. Mr Lee said that viewers would see Dr Phillips as a professional historian and an expert, and it was therefore reasonable for lay people to accept Dr Phillips’ statements as fact, which, in Mr Lee’s view, was misleading.
 MediaWorks argued that Dr Phillips’ comments amounted to opinion or analysis only and were therefore not subject to the accuracy standard. It acknowledged that Mr Phillips’ comments would have ‘carried weight commensurate with his position and expertise’, but emphasised ‘they were nevertheless his interpretations of a historical event’. It submitted that ‘viewers would have understood that the historians were expressing their own views and that perspectives on historical subjects are often varied and contestable and should not necessarily be taken as definitive’. It also said that Dr Phillips’ use of the phrase ‘there’s some evidence’, indicated that his view of what occurred was not intended to be definitive.
 Dr Phillips also responded to this aspect of Mr Lee’s complaint, saying:
I think it is clear Māori certainly believed that the village was a sanctuary for women and children and that at least one old man and two others were shot while emerging from a burning whare. Whether this amounts to an atrocity is, I suppose, up to judgement but Māori certainly believe so.
 Guideline 9a to the standard states that the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact. In our view, Dr Phillips’ statements represented his analysis, comment or opinion, based on his interpretation of a historic event, rather than statements of fact which were subject to the accuracy standard.
 We agree that Dr Phillips, speaking as a professional historian, might have a level of influence over the conclusions drawn by viewers. However it is not reasonable to assume that viewers would therefore have accepted Dr Phillips’ statements as fact. Dr Phillips clearly stated that his views were based on particular evidence. That the events at Rangiaowhia amounted to what Dr Phillips described as ‘a terrible atrocity’ or ‘an appalling act of genocide’, was a judgement or opinion that he drew based upon his professional analysis of that evidence. MediaWorks satisfied itself that, as an authoritative expert on the subject of New Zealand history, Dr Phillips was in a position to provide his opinion on those events. In the context of the programme viewed as a whole, we think this was sufficient to meet the requirements of the standard.
 This programme carried high public interest and raised legitimate questions about the way we view New Zealand’s past. In our view upholding the accuracy complaint would unreasonably limit the right to freedom of expression, including the right of both the broadcaster and of Dr Phillips to impart ideas, and of the audience to receive them.
 Accordingly, we do not uphold the complaint under Standard 9.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
14 October 2016
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Chris Lee’s formal complaint – 6 April 2016
2 MediaWorks’ response to the complaint – 1 June 2016
3 Mr Lee’s referral to the Authority – 11 June 2016
4 MediaWorks’ response to the referral – 11 July 2016
5 Mr Lee’s further comments – 27 July 2016
6 MediaWorks’ confirmation of no further comment – 9 August 2016
1 See below at 
2 This complaint was determined under the new Free-to-Air Television Code, which took effect on 1 April 2016 and applies to any programmes broadcast on or after that date: http://bsa.govt.nz/standards/free-to-air-television-code
3 Shaw and TVWorks Ltd, Decision No. 2013-050
4 The movement received widespread public attention (see, for example: https://www.theguardian.com/news/2015/nov/18/why-south-african-students-have-turned-on-their-parents-generation; https://www.theguardian.com/education/2016/mar/09/take-it-down-rhodes-must-fall-campaign-marches-through-oxford) and resulted in similar movements at other institutions around the world, including Oxford University (which announced in January 2016 that a statute of Cecil Rhodes at Oriel College would be retained).
5 See sections 5 and 14 of the New Zealand Bill of Rights Act 1990
6 Commerce Commission and TVWorks Ltd, Decision No. 2008-014
7 For further discussion of these concepts see Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) and Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Radio (Broadcasting Standards Authority, June 2009)
8 Powell and CanWest TVWorks Ltd, Decision No. 2005-125
9 See, for example, Dewe and TVWorks Ltd, Decision No. 2008-076
10 See, for example, Axford, Bate and Oldham and Television New Zealand Ltd, Decision No. 2011-115, and Boyce and Television New Zealand Ltd, Decision No. 2008-086
11 Decision No. 2011-115, at 
12 Bush and Television New Zealand Ltd, Decision No. 2010-036