BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority did not uphold a complaint that comments made by Paul Henry during Rebuilding Paradise with Paul Henry undermined the Director-General of Health’s directions regarding compliance with COVID-19 Alert-Level conditions. Mr Henry noted there were no new cases of COVID-19 on the day of broadcast and commented, ‘I don’t want Dr Ashley Bloomfield to threaten me and you with the “if New Zealanders aren’t good at Level 3, they won’t get to Level 2” warning. I realise people think he walks on water, but I don’t. …Obedience in the population is the job of the police and, god help us, the reluctant [Police] Commissioner’. Noting the importance of the right to freedom of expression and that Mr Henry was clearly giving his views on a topic of high public interest, the Authority found no actual or potential harm that justified regulatory intervention. Mr Henry is well known for offering strong, sometimes controversial, opinions and at the time of broadcast a wide range of information and alternative views were available to the public regarding the importance of complying with the Government’s Alert-Level conditions. The comments did not actively encourage non-compliance or seriously undermine law and order. Nor did they result in Dr Bloomfield or the Police Commissioner being treated unfairly. Given their high-profile positions, they can reasonably expect to be the subject of robust scrutiny and a wide range of media coverage and commentary.

Not Upheld: Law and Order, Balance, Fairness, Accuracy, Programme Information

The broadcast

[1]  At the beginning of Rebuilding Paradise with Paul Henry, broadcast on 4 May 2020 on channel Three, Mr Henry said:

Well, we’ve done it. Zero new [COVID-19] cases today, well-timed to get back to business and I don’t want Dr Ashley Bloomfield to threaten me and you with the ‘if New Zealanders aren’t good at Level 3, they won’t get to Level 2’ warning. I realise people think he walks on water, but I don't. He's a well-paid public servant who needs to stick to his lane. Obedience in the population is the job of the police and, god help us, the reluctant [Police] Commissioner...

The complaint

[2]  Murray McGovern complained that Mr Henry’s comments breached the law and order, balance, accuracy, fairness and programme information standards of the Free-to-Air Television Code of Broadcasting Practice, for the following reasons:

• Given that we were, at the time of broadcast, under a declared state of national health emergency, Mr Henry’s comments were ‘outrageous’, ‘mischievous’, ‘sensationalist’ and ‘inappropriate on NZ national television’.
• Mr Henry’s comments attempted to ‘undermine/contradict a duly authorised Senior Government Health Expert in a time of declared national emergency’ and encouraged non-compliance with his directions.
• Media have a responsibility to ‘react accurately in accordance with’ Government-authorised directions.
• Regarding Mr Henry’s comments about ‘obedience’ being the job of the police, ‘It is fairly the Director-General of Health’s role to provide direction and guidance in times of National Health Emergency not a Media Presenter…’
• Mr Henry’s comments were ‘not fair or appropriate to an already concerned and scared Public or the Director-General of Health or [the] Police Commissioner’.

The broadcaster’s response

[3]  MediaWorks did not find any breach of the nominated broadcasting standards, saying:

Paul Henry is well known for his irreverent, frank and outspoken style of broadcasting and while some viewers may dislike these traits they are nevertheless a large part of his appeal. The presenter liberally injects the programme with his own humorous, irreverent and occasionally provocative perspectives, which is an element of his style that regular viewers would expect. We regret that you were disappointed by his opening comments on the programme, however, the broadcasting standards regime allows for personal opinion and we do not agree that these comments breached broadcasting standards.

Our analysis and the outcome

[4]  In considering this complaint the members of the Authority have watched a recording of the broadcast segment complained about, and we have reviewed the correspondence listed in the Appendix.

[5]  We have also considered the right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information. This is the starting point in our consideration of any complaint that broadcast standards have been breached. Our task is to weigh the value of, and public interest in, the broadcast complained about, against the level of actual or potential harm that may be caused by the broadcast, with reference to the objectives of the standards described above. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[6]  For the reasons outlined below in relation to each of the nominated standards, we have not found actual or potential harm of the nature described in the complaint which outweighed the public interest in the broadcast, or justifies limiting freedom of expression in this case.

Law and order

[7]  The law and order standard (Standard 5) states that broadcasters should observe standards consistent with the maintenance of law and order, taking into account the context of the programme and the wider context of the broadcast. It is concerned with broadcasts that actively undermine, or promote disrespect for, the law or legal processes. It does not require broadcasters to promote law and order, or prevent genuine criticism – even provocative criticism – of laws or their enforcement by the courts and police. Context is crucial in assessing the programme’s likely practical effect and the level of public interest in a programme will be a significant factor for consideration.¹

[8]  Having regard to these principles, as well as the right to freedom of expression and the level of public interest generally in discussions surrounding COVID-19, we found that Mr Henry’s comments did not actively undermine law and order or encourage illegal activity. The key factors supporting this view were:

• Rebuilding Paradise with Paul Henry was an unclassified current affairs programme dedicated to discussing issues surrounding COVID-19. It was broadcast during adults-only time at 8.30pm.
• There was a clear audience expectation set with regard to the nature of the programme and Mr Henry as a well-known presenter fronting the programme, whom audiences expect to give strong, sometimes controversial, views in the interests of promoting public discourse and debate.
• Mr Henry did not actively or explicitly instruct or encourage people not to comply with the Alert-Level conditions (rather he questioned whose role it was to enforce these).
• He also clearly acknowledged that the police and the Police Commissioner were responsible for monitoring and enforcing ‘obedience’ – in other words, that there were consequences associated with not complying.
• This was just one programme, and one person’s opinion, among constant, up-to-the-minute media coverage and commentary on COVID-19, meaning a wide range of information and alternative perspectives were easily accessible to the public.

[9]  In this context we do not think there was a real risk of viewers taking these few comments by Mr Henry as seriously undermining the Government’s or the Director-General of Health’s advice or encouraging non-compliance with Alert-Level conditions.

[10]  We therefore do not uphold the complaint under the law and order standard.

Balance

[11]  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.

[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]  It is clear that Rebuilding Paradise was a current affairs programme for the purposes of the standard, focused on how we might rebuild New Zealand in the aftermath of COVID-19. We also accept that commentary during news, current affairs and factual programmes critiquing the Government’s actions to address COVID-19 is likely to amount to a discussion of a controversial issue of public importance, to which the balance standard applies.

[14]  Our assessment of whether the requirements of the balance standard were met in this case, takes into account the following factors:³

• the programme’s introduction and the way in which the programme was presented
• the type of programme
• the nature of the issue and of the discussion
• whether the programme approached the topic from a particular perspective
• whether the programme acknowledged the existence of other views
• whether the audience could reasonably be expected to be aware of other views, including in other media sources.

[15]  Having regard to these factors as they apply in this case, we were satisfied that there was no breach of the balance standard, taking into account:

• The nature of the programme was focussed on generating debate and discourse about how New Zealand could rebuild itself following COVID-19.
• As its host, Paul Henry is well known for his irreverent, sometimes controversial style and opinions, so there was an established audience expectation that viewers would receive this kind of commentary.
• As such, viewers would have understood Mr Henry’s brief opening remarks in this episode were just one person’s opinion among constant, up-to-the-minute media coverage of, and commentary on, COVID-19 issues and the Government response.
• In any event, the full episode included balancing comment, including both Mr Henry and interviewees acknowledging that the Government was faced with an unprecedented and difficult challenge, that it had done a good job and that it was well-regarded internationally for the job it had done.
• Additionally, outside of this broadcast, a wide range of information and perspectives was available to viewers, such that they could reasonably be expected to be aware of various views on the Government’s and the Director-General of Health’s approach to combatting COVID-19, including daily Government updates reiterating the importance of complying with the restrictions in place at each Alert Level.
• In these circumstances, viewers would not have been left uninformed or unable to form their own views, based on Mr Henry’s brief comments at the beginning of this programme.

[21]  For these reasons we do not uphold the balance complaint.

Fairness

[16]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The purpose of this standard is to protect the dignity and reputation of those featured or referred to in broadcasts.⁴

[17]  We understand Mr McGovern’s concerns in relation to the fairness standard are that Mr Henry’s comments were unfair to the public, the Director-General of Health, and the Police Commissioner. As the standard only applies to individuals referred to in the broadcast, it cannot be applied to the New Zealand public.

[18]  We are satisfied that neither Dr Bloomfield nor the Police Commissioner was treated unfairly, taking into account:⁵

• Mr Henry’s brief references to these individuals would not have resulted in viewers being left with an ‘unduly negative’ impression of them.
• Both of these individuals are high-profile public figures who have been the subject of frequent media coverage and commentary and can reasonably expect to have their actions scrutinised and to receive criticism.
• Mr Henry’s comments were squarely aimed at the individuals’ performance in a professional capacity and did not make any comment on their personal attributes or personal lives.
• The programme and Mr Henry’s comments carried public interest and value in terms of free speech, by offering commentary and generating discussion about issues surrounding COVID-19 and the nation’s recovery.

[19]  We therefore do not uphold the complaint under the fairness standard.

Accuracy

[20]  The purpose of the accuracy standard (Standard 9) is to protect the public from being significantly misinformed.⁶ It states that 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, and does not mislead.

[21]  Mr McGovern did not elaborate on why he considered Mr Henry’s comments breached Standard 9, beyond saying they were ‘misleading’.

[22]  Under guideline 9a, the accuracy standard does not apply to any statements that are clearly distinguishable as analysis, comment or opinion. In our view, Mr Henry was clearly giving his opinions and commentary on the day’s developments regarding the absence of any new COVID-19 cases and directives around the Government’s Alert Levels. Therefore the accuracy standard did not apply. The key factors supporting this view are:⁷

• The language used, for example, ‘I don’t want…’ and ‘I realise people think [Dr Bloomfield] walks on water but I don’t’, indicated Mr Henry was giving his opinion rather than making statements of fact.
• The format and premise of the programme Rebuilding Paradise with Paul Henry set clear audience expectations that Mr Henry would be contemplating, and leading discussion about, the state of the nation and its recovery following COVID-19.
• There is also a long-established audience expectation of Mr Henry’s presenting style, as someone who frequently offers strong, controversial and/or irreverent opinions.

[23]  Accordingly we find no breach of the accuracy standard.

Programme Information

[24]  The programme information standard (Standard 2) is concerned with ensuring programmes are correctly classified and scheduled in appropriate timeslots. Rebuilding Paradise was an unclassified news and current affairs programme broadcast during adults-only time at 8.30pm. This part of the complaint is therefore not upheld, on the basis the complainant’s concerns are more appropriately addressed under the four standards outlined above.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Judge Bill Hastings

Chair
14 September 2020

Appendix

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

1  Murray McGovern’s formal complaint – 5 May 2020

2  MediaWorks’ decision on the complaint – 29 May 2020

3  Mr McGovern’s referral to the Authority – 5 June 2020

4  Mr McGovern confirming scope of his referral – 11 June 2020

5  MediaWorks’ confirmation of no further comment – 17 June 2020

6  Further comment from Mr McGovern concerning scope of his referral –
5 August 2020

7  Further comments from MediaWorks regarding application of the Balance standard – 14 August 2020

¹ Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
² Guideline 8a
³ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁴ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁵ With reference to the factors for consideration outlined in Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁶ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁷ With reference to the factors outlined in Guidance: Accuracy - Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 62