BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

During Afternoon Talk with Wendyl Nissen, Ms Nissen interviewed Police Association President, Chris Cahill. Mr Cahill discussed a recent survey which indicated an increase in police being threatened by firearms. Mr Cahill expressed his views on the potential causes of this increase, the links between the increase and the increase of methamphetamine in New Zealand, the arming of police officers, the use of MSSA (military-style, semi-automatic) firearms, and firearm registration. The Authority did not uphold two complaints that the interview breached the balance standard. The Authority found that the broadcast was a light-touch interview, albeit on a serious topic, which created an audience expectation that the interview was approaching the firearms issues from Mr Cahill’s perspective and that it did not purport to be an in-depth balanced examination of the issues raised. The Authority did not find any statements made during the interview to be materially inaccurate, nor did it find the interview to be unfair to any person or organisation.

Not Upheld: Balance, Accuracy, Fairness  

Introduction

[1]  During Afternoon Talk with Wendyl Nissen, Ms Nissen interviewed Police Association President, Chris Cahill. Mr Cahill discussed a recent survey which indicated an increase in police being threatened by firearms. He expressed his views around the potential causes of this increase, the links between the increase and the increase of methamphetamine in New Zealand, the arming of police officers, the use of MSSA (military-style, semi-automatic) firearms, and firearm registration.

[2]  Mike Loder and Peter Dennis complained that the interview was biased against the firearms community and unbalanced. The complainants submitted that Mr Cahill was not adequately questioned or challenged on the statements he made, and that an authority from the firearms community should have been given the opportunity to provide an alternative point of view. Mr Dennis also complained that certain statements made during the broadcast were inaccurate. Mr Loder complained that the interview was unfair to ‘shooters’ in New Zealand.

[3]  The issues raised in the complaints are whether the broadcast breached the balance, accuracy and fairness standards of the Radio Code of Broadcasting Practice.

[4]  The item was broadcast on RadioLIVE on 12 December 2017. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Freedom of expression

[5]  When we determine a complaint alleging a breach of broadcasting standards, we first give consideration to the right to freedom of expression. We weigh the value of the broadcast item, as well as the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused by the broadcast. We may only interfere and limit the right to freedom of expression where doing so is reasonable and justified.¹

[6]  In our view this broadcast carried a high level of public interest. It explored a topical, contentious and wide-ranging issue – including gun control, firearm registration and the arming of police officers – about which people in the New Zealand community will hold a variety of views, and they are entitled as part of the right to freedom of expression to hear these issues discussed on radio and to hear others’ views. They are also entitled to hear robust, challenging discussion where issues do generate a variety of perspectives. Engaging in robust public discourse on these kinds of issues is an important feature of freedom of expression and democratic society.

[7]  The question for us to consider is whether the harm that is alleged to have been caused – the unbalanced discussion of the issue, the inaccurate statements of fact broadcast and the unfair treatment of certain organisations – is such that it warrants our intervention and warrants limiting the right to freedom of expression in this case.

Was the item sufficiently balanced?

[8]  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.

The parties’ submissions

[9]  Mr Loder submitted:

• The broadcast failed to include a significant alternative point of view from the New Zealand firearms community, to counter Mr Cahill’s position, including:
  • Semi-automatic firearms are the most popular sporting firearm among 250,000 licensed shooters.
  • Police figures actually show no increase in assaults on police for 25 years.
  • On the issue of arming police officers, the question should have been asked why they need more guns. 
•  Whether or not the broadcast purported to be a balanced examination of the issues discussed is not an excuse for misleading the audience.
• The ‘period of current interest’ as envisaged under the standard is undefined and vague. Hearing some ‘truths’ regarding gun control several months later was insufficient to balance the impact of this 9-minute interview.

[10]  Mr Dennis submitted:

• The interview did not provide any counter debate for the registration of firearms or the need for certain types of firearms in New Zealand.
• The interviewer could have contacted someone from the Council of Licensed Firearm Owners (COLFO) for comment, or could have used New Zealand Police statistics that show how small firearms offending in New Zealand is.

[11]  MediaWorks submitted:

• The broadcast did not purport to be a balanced examination of the issues discussed and was clearly identified as being presented from Mr Cahill’s perspective. Mr Cahill himself acknowledged that the perspective he provided was one part of the ‘wider debate’:

We’re just feeding [the Police Association’s research and views] back into the politicians and into the debate to say, ‘Let’s have a look in New Zealand at what are the laws around firearms; what’s needed, what is required in New Zealand’.

• In relation to the issues discussed in the broadcast, the period of current interest is ongoing. It is reasonable to assume that over the course of this period listeners will be exposed to a range of viewpoints, allowing them to arrive at an informed and reasoned understanding of the issues.

Our analysis

[12]  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’.²

[13]  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’.³ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁴

[14]  In our view, this interview with Mr Cahill covered a range of complex issues such as the arming of police officers, the use of MSSAs and the registration of firearms, which all fall under the wider umbrella of the issue of the use, availability and control of firearms in New Zealand. Recent incidents and discussion of gun violence in New Zealand, as well as mass shootings and discussion of the issue abroad (for example in the United States), have clearly generated controversy and ongoing public debate locally, about the availability and use of firearms. We therefore find this item amounted to a controversial issue of public importance.

[15]  In assessing whether the programme has breached the balance standard, relevant factors include:⁵

• the programme’s introduction and the way in which the programme is presented
• the type of programme
• the nature of the issue
• whether the programme was clearly signalled as approaching a topic from a particular perspective
• the likely expectations of the audience as to content
• whether listeners could reasonably be expected to be aware of views expressed in other coverage (ie, is it an ongoing topic of debate, such that listeners can reasonably be expected to have a broad understanding of the main perspectives on the issue).

[16]  The interview began by noting a recent survey regarding police being threatened with firearms and introducing Mr Cahill as Police Association President to discuss the survey and what it means. Mr Cahill then discussed the survey results before moving on to related gun control issues such as the arming of police officers, the use of MSSA firearms and firearm registration. Due to his position, Mr Cahill’s opinion on this survey, the potential causes behind the rise in police being threatened and possible subsequent action that can be taken to combat this issue, carried value in terms of public interest.

[17]  While the interview touched on a range of related firearms issues, we do not consider that the broadcast purported to be an in-depth, balanced examination of the ownership and use of firearms in New Zealand. Rather, the programme signalled that it was approaching the topic from the perspective of Mr Cahill and the Police Association, who briefly gave his opinion on the recent survey and on a wide range of issues that form a part of the larger complex debate of gun control in New Zealand.⁶

[18]  The interview was nine minutes in length and we note that while Mr Cahill gave a multitude of opinions, the interview approach was light-touch with minimal questioning or opposition from Ms Nissen. Gun control is a serious subject that can be divisive, emotive and spark robust debate and discussion. In our view, if broadcasters intend to discuss certain aspects of serious issues such as gun control or the wider debate as a whole, they ought to do so in a way that consistently caters for a range of views and encourages informed public discourse, considering the serious nature of the subject matter.

[19]  However, in this case given the way the interview was positioned, we consider that the audience would have expected that Mr Cahill, as Police Association President, was being interviewed to give his perspective on the survey and other related firearms issues. We do not consider this amounted to an in-depth ‘discussion’ of the multitude of firearms issues raised, for the purposes of this standard.

[20]  Overall, as the light-touch interview was presented as being from Mr Cahill’s perspective rather than being a robust, in-depth discussion of the issues, we do not consider listeners would have been left uninformed by the broadcast. Consequently, we do not consider that we are able to interfere with the broadcaster’s right to freedom of expression on this occasion.

[21]  Accordingly, we do not uphold the complaints under the balance standard.

Was the broadcast inaccurate or misleading?

[22]  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.

The parties’ submissions

[23]  Mr Dennis submitted:

• The Police Association is well aware that MSSA firearms are already registered in New Zealand.
• The Police Association’s claim that registration will allow them to track stolen firearms is misleading as The Arms Act 1983 (‘Arms Act’) already requires that stolen firearms be reported.
• The Police Association claimed that the only use for MSSA firearms is goat hunting, however they are also used for deer and other medium to large game hunting, and many competitions and sport shooting events both nationally and internationally.
• The host claimed that the rifles for sale in New Zealand are assault rifles only used in war. To be classed as an assault rifle it must have the ability to have selective fire (automatic). The rifles being referred to do not. Only a small amount of automatic firearms are held privately and these are strictly controlled by collectors and museums. This type of terminology is used to provoke fear and misunderstanding amongst non-firearms users and accuracy is pivotal for proper and informed discussion.
• The rifles for sale to the general public cannot be converted to automatic as this is one of the criteria the Police Armoury check before they are allowed to be imported.

[24]  MediaWorks submitted:

• The Committee understands that MSSA firearms must be registered against the owner’s firearm licence. This requirement is not the same as the firearm registration regime proposed by the Police Association. Mr Cahill’s reference to the number of MSSAs registered in New Zealand was not inaccurate or misleading.
• Mr Cahill did not state that registration would allow Police to track stolen firearms but rather expressed the Police Association’s view that a firearm register would help Police monitor and prevent firearm theft.
• Mr Cahill did not suggest that the only use for MSSA firearms is goat culling. He expressed concern over the rate of MSSA ownership in New Zealand and queried whether ‘there is really a need for those’.
• It accepted that Ms Nissen may have incorrectly referred to military-style semi-automatic weapons as ‘assault rifles’ but consider that this inaccuracy was immaterial and was unlikely to have significantly affected listeners’ understanding of the broadcast as a whole.
• The broadcast did not state that rifles available to the general public can be converted to automatic.

Our analysis

[25]  Guideline 9a to the accuracy standard states that it does not apply to statements that are clearly distinguishable as analysis, comment or opinion. Guideline 9b to the standard states that it is concerned only with material inaccuracy. For example, technical or unimportant points unlikely to significantly affect the audience’s understanding of the programme as a whole are not material.

[26]  We have identified the following statements from the broadcast as being those the complainant considers to be materially inaccurate:

• ‘One of the problems in New Zealand is we have no idea where our firearms are, there are so many firearms in New Zealand, but because they’re not registered, we don’t know where they are…’ (Mr Cahill)
• ‘[A] lot of the guns getting imported or bought online, they’re like major assault rifles, they’re for war, not for what we’re supposed to have them for, which is for shooting deer, isn’t it?’ (Ms Nissen)
• ‘[Do] we need military-style semi-automatic Weapons in New Zealand? I mean people say they need them for goat killing, how many goats do we actually need to cull in New Zealand? And you can do that with other firearms…’ (Mr Cahill)
• ‘[T]here’s 13,000 of those [MSSAs] registered in New Zealand, but what people don’t understand is, there’s a large number of others that simply because of the way the stock’s configured or the size of the magazine they take aren’t military-style semi-automatics but actually have the same firepower.’ (Mr Cahill)

[27]  The first question for us is whether the statements complained about amounted to material points of fact, to which the accuracy standard applied.

[28]  We consider that Mr Cahill’s statements regarding the need for MSSAs in New Zealand, their use for goat culling, and conversion of other firearms with stocks and magazines, were statements of analysis and opinion rather than statements of fact. These statements contained subjective value judgments based on Mr Cahill’s professional experience and his position as Police Association President.⁷ Therefore the accuracy standard does not apply.

[29]  Regarding Mr Dennis’ submission that the item was inaccurate because ‘The Police Association is well aware that MSSA firearms are already registered in New Zealand’, we note that Mr Cahill’s first statement listed above – ‘they’re [firearms are] not registered’ – was made in the context of him expressing the Police Association’s desire for a compulsory firearm registry.

[30]  We acknowledge firearms that fall under certain classes, such as MSSAs, can be registered,⁸ and Mr Cahill’s comments may have been interpreted as implying that no firearms in New Zealand are registered. However, our understanding is that the Police Association is proposing a compulsory firearms registry that would extend the current ‘permit to procure’ process that would require the recording of the serial numbers of all firearms during licence renewals and safety storage inspections.⁹ Mr Cahill has previously compared the proposed registration of all firearms to the mandatory registration of cars or dogs in New Zealand.¹⁰

[31]  In this context, and taking into account that the proposed registry was one of many topics raised during a wide-ranging discussion of firearms in the broadcast, we do not think Mr Cahill’s statement was materially inaccurate.

[32]  MediaWorks has acknowledged that Ms Nissen’s reference to ‘assault rifles’, instead of MSSAs was incorrect. However, we do not consider that the majority of listeners would have comprehended the technical difference between an MSSA and an assault rifle, or that they would have taken Ms Nissen’s reference to be authoritative. The correct terminology was used for the rest of the interview and we do not consider Ms Nissen’s mistake was likely to mislead or to affect the audience’s understanding of the broader discussion about MSSAs or the interview as a whole.

[33]  For these reasons we do not uphold Mr Dennis’ complaint under the accuracy standard.

Was any individual or organisation taking part or referred to in the broadcast treated unfairly?

[34]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.

The parties’ submissions

[35]  Mr Loder submitted:

• The broadcast was not fair to ‘shooters’, being registered gun owners in New Zealand, as an organisation. The media refer to ‘shooters’ as a group that listeners would recognise as gun owners, therefore they amount to an organisation for the purposes of the standard.
• Groups such as Firearms Owners United New Zealand (FOUNZ) and COLFO represent the rights of firearms owners in New Zealand. These groups have tens of thousands of members and are organisations for the purposes of this standard.

[36]  MediaWorks submitted:

• Mr Loder did not identify any person or organisation as envisaged under the standard, that he believed the broadcast treated unfairly.
• The broadcast did not refer to FOUNZ or COLFO. The fairness standard only applies to organisations that are referred to in a broadcast.
• There was no material in the broadcast which could have caused unfair harm to, or left the audience with an unduly negative impression of, any individual or organisation.

Our analysis

[37]  While we understand there are roughly 230,000 people who hold some form of firearms licence in New Zealand, ‘shooters’ as a group of people do not amount to an ‘organisation’ for the purposes of the standard. The Authority has previously found that a large group of people does not amount to an organisation for the purposes of this standard, simply because of their size or a shared characteristic.

[38]  We are satisfied that neither FOUNZ nor COLFO was referred to in the broadcast.

[39]  Therefore the fairness standard does not apply.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
8 May 2018
 

Appendix

The correspondence listed below was received and considered by the Authority when it determined these complaints:

Mike Loder’s formal complaint

1     Mike Loder’s original complaint – 12 December 2017
2     MediaWorks’ response to the complaint – 24 January 2018
3     Mr Loder’s referral to the Authority – 24 January 2018
4     MediaWorks’ further comments – 13 February 2018
5     Mr Loder’s further comments – 20 February 2018

Peter Dennis’ formal complaint

6     Peter Dennis’ original complaint – 12 December 2017
7     MediaWorks’ response to the complaint – 24 January 2018
8     Mr Dennis’ referral to the Authority – 25 January 2018
9     MediaWorks’ confirmation of no further comment – 13 February 2018

¹ See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6.

² Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18

³ As above

⁴ As above

⁵ As above. See also guideline 8c to Standard 8.

⁶ Guideline 8c 

⁷ Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 62

⁸ The Arms Code 2013, NZ Police, pages 52-53

⁹ Police Association President’s Speech to Otago University Firearms and Public Health Seminar, https://www.policeassn.org.nz/newsroom/publications/media-releases/police-association-president%E2%80%99s-speech-otago-university-firearms (Police Association Media Release, 14 February 2018)

¹⁰ As above