McMillan and Television New Zealand Ltd - 2013-025
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Mario McMillan
BroadcasterTelevision New Zealand Ltd
Summary [This summary does not form part of the decision.]
An item on Seven Sharp reported the predictions of a climate scientist about the impacts of climate change on New Zealand by the year 2100, and included the opinion of a climate change health expert about the health risks associated with the predicted changes. The complainant argued that the item was misleading and unbalanced because the claims were presented as ‘fact’ and ‘inevitable’ rather than as ‘extreme projections’. The Authority did not uphold the complaint that the item was inaccurate, as it clearly consisted of opinion and predictions, and was not presented as fact. A majority of the Authority was satisfied that the item did not breach the balance standard, finding that the nature of the programme and the topic meant that viewers would have interpreted the predictions with some scepticism and would be aware of different positions in the debate about climate change. The minority felt, however, that the broadcaster made no effort to present significant alternative points of view in an item which discussed a highly controversial issue.
Not Upheld: Accuracy, Responsible Programming
Not Upheld (by majority): Controversial Issues
 An item on Seven Sharp reported predictions about the impacts of climate change and what this could mean for New Zealand in terms of how it might look in the year 2100. The episode was broadcast on 12 March 2013 on TV One.
 Mario McMillan made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the claims made in the item about the impacts of climate change were presented as ‘fact’ and ‘inevitable’, which he argued was misleading because they represented ‘extreme projections... with a very low likelihood as actual outcomes’. The omission of ‘less alarmist’ viewpoints misled viewers to believe the projections were ‘uncontroversial or incontrovertible’, he said.
 The issue is whether the broadcast breached standards relating to accuracy, responsible programming, and controversial issues as set out in the Free-to-Air Television Code of Broadcasting Practice.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Nature of the item and freedom of expression
 Seven Sharp is a New Zealand current affairs and entertainment programme. The programme departs from the orthodox news and current affairs model in that it applies comedy and entertainment techniques to serious issues. This type of programming and format is increasingly common on New Zealand television, and raises new questions about the application of broadcasting standards which only apply to ‘news and current affairs’, including the balance and accuracy standards.
 The item reported on a serious issue, climate change and the predicted tangible impacts of climate change on New Zealand in 87 years’ time. The item endeavoured to be more engaging through the use of theatrical and comedic elements, and was given relevance by reference to recent weather patterns. The presenters introduced the item as follows:
Presenter 1: Some people love them, some people – farmers – not so much, but it looks
like long hot summers could become the norm.
Presenter 2: It’s hard to believe that this time last year we were all moaning about a
summer that didn’t arrive, and now we’re all starting to whinge about one
that won’t go away.
Presenter 3: Is it just a sign of things to come? [Reporter’s name] found a lot of experts
who say that it is. She took a look at a future not so far, far away.
 The reporter interviewed a climate scientist who predicted, among other things, a three-degree temperature rise, a one-metre sea level rise, and more droughts. The predictions made by the climate scientist were dispersed throughout the item and were presented in his own words, or by the reporter who used props and humour to describe the predicted impact on New Zealand. A climate change health expert was also interviewed and he gave his professional opinion of the health risks associated with the predicted changes, for example saying that higher temperatures could lead to mortality from heat stress, especially among the elderly.
 The predictions were presented in a way that was sensationalist, and in keeping with the style and format of the programme. This made the item lively and interesting, which engaged the audience. We recognise the editorial right of broadcasters to convey information on complex issues in novel and entertaining ways.
Was the item inaccurate or misleading?
 The accuracy standard (Standard 5) 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.1
 Mr McMillan argued that the following claims made in the item were presented as ‘fact’ and ‘inevitable’, and were therefore misleading:
- a three-degree temperature rise by 2100
- a one-metre sea level rise by 2100
- more droughts
- ‘more old and frail people will die of heat stress’
- changed precipitation on the Central Plateau.
 These claims were clearly framed as predictions and analysis and sourced to the experts interviewed in the item. Guideline 5a says that the accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion. The reporter mostly used terms such as ‘could’ and ‘might’ throughout the item and the presenter used open-ended language in the introduction (see paragraph ), indicating that these were theories only, which by their very nature are disputable.
 In our view, given the nature of the programme and the topic reported on, reasonable viewers would have interpreted the predictions with some scepticism. Climate change is a highly contentious issue attracting a wide range of differing opinons, meaning viewers were unlikely to draw any solid conclusions solely from the information presented in the item, particularly taking into account the light-hearted and jovial style of presentation.
 Accordingly, we decline to uphold the Standard 5 complaint.
Did the item breach the responsible programming standard?
 The responsible programming standard (Standard 8) requires that programmes are correctly classified, and not presented in such a way as to deceive or disadvantage viewers, or to cause panic, unwarranted alarm or undue distress.
 Mr McMillan argued that the ‘extreme and unqualified picture’ presented by the item was likely to cause unwarranted alarm and distress, and deceive and disadvantage viewers ‘when it came to formulating an opinion on policy responses to likely climate change’.
 Seven Sharp is an unclassified current affairs and entertainment programme broadcast in PGR time. We are satisfied that the programme’s adult target audience, and supervised children, would not have been alarmed or distressed by predictions about what might occur as a result of climate change in 87 years’ time, again, especially due to the light-hearted tone of the broadcast. Nor were they deceived or disadvantaged by the broadcast, for the reasons outlined above.
 Accordingly, we decline to uphold the responsible programming complaint.
Did the item discuss a controversial issue of public importance, requiring the presentation of alternative viewpoints?
 The balance standard (Standard 4) 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 balance standard exists to ensure that competing arguments are presented, where necessary, to enable a viewer to arrive at an informed and reasoned opinion.2
 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’.3
 Mr McMillan argued that climate change, including its extent, causes, and policy responses, were highly controversial issues. He argued that the item presented ‘extreme projections’ without including the views of scientists who were ‘less alarmist about the causes, extent or impacts of climate change’. He referred to a number of specific claims which he argued required balance (see paragraph  above).
 TVNZ accepted that human-induced global climate change was an ongoing topic of discussion, but argued that it was no longer controversial because most governments around the world accepted it was happening and were taking steps to address it. The broadcaster referred to information from the New Zealand Ministry for the Environment’s website.4
 Among the members of this Authority we have reached different conclusions about the application of Standard 4 to the broadcast, and whether the item breached the standard. A majority of us (Peter Radich, Te Raumawhitu Kupenga and Leigh Pearson) decline to uphold the complaint. A minority, Mary Anne Shanahan, finds that the balance standard was breached by this broadcast.
 Our requirement to ensure balance in controversial issues of public importance is a statutory requirement found in section 4 of the Act which says:
Responsibility of broadcasters for programme standards
- Every broadcaster is responsible for maintaining in its programmes and their presentation, standards that are consistent with—
(d) the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
 The same requirement, often in identical words, was found in the broadcasting regulatory requirements of many other jurisdictions of that time. The requirement reflected what was then a comparatively narrow range of information broadcasting and media opportunities as compared with the present time. In New Zealand, 1989 was a time when the state had a heavy ownership influence in broadcasting, there were few television channels, fewer radio stations than now, the internet was little more than an idea and importantly, the concept of freedom of expression as one of the fundamental constitutional rights in New Zealand had only just been given statutory recognition. Prior to that, in 1984, besides National Radio and the Concert programme, there were 22 private, and 37 government-owned commercial radio stations. Radio New Zealand and TVNZ became State Owned Enterprises in 1988. In 1989 TV3 was launched. The Broadcasting Standards Authority was also established that year.
 The worlds of broadcasting and information dissemination have changed dramatically since 1989. In some jurisdictions outside New Zealand the requirement for balance has been abandoned to reflect the changed environment in which broadcasting operates. In New Zealand, the requirement for balance continues to be a statutory requirement and it must be given recognition. However, that recognition must reflect the present broadcasting environment in New Zealand and it must reflect the increased flows of information which now pass over us on topics of all kinds. Our information flows are no longer dominated as they were in 1989 by a morning or evening newspaper, some radio stations and two television stations. What we have now is a proliferation of broadcast media, and indeed media which is consciously delivered from a political perspective, and a more discriminating viewing public.
 Against that background we look at the purpose of the requirement for balance and we look at how that purpose is to be achieved in the context of today. The purpose is to ensure that viewers or listeners are not misled; that they are not given false information; that their views are not wrongly shaped. The standard recognises that viewers and listeners must be left to make up their own minds on controversial issues but that they have to be given sufficient information to enable them to properly do so.
 If a programme presents itself as, and claims to be, a balanced discussion then viewers would expect a level of balance to be achieved in the programme, though the level required will be influenced by the nature of the issue under discussion. On the other hand, we do not think that viewers would expect balance in an item such as this, which is so obviously focused on one perspective. The item did not purport to be a balanced examination, or go into any detail or in-depth analysis, of the controversial aspects of climate change. As noted at paragraph  above, the claims about the impacts of climate change, including a three-degree temperature rise, a one-metre sea level rise, and more droughts, were framed as predictions and sourced to the climate scientist, and in terms of the alleged health impacts, to the climate change health expert.
 Further, the item did not contain any comment about the likelihood of the predictions as actual outcomes – which is the crux of Mr McMillan’s argument: that the item presented ‘extreme projections’ and ‘outliers’ as ‘inevitable’. We note that the parties pointed to a range of conflicting research in support of their respective arguments, indicating the complexity of the issue and that climate change is not a black-and-white topic, but one which attracts a wide range of views and a divergence in scientific opinion. In light of this we think it was acceptable for the item to take a deliberately simplistic, light-hearted approach, and to deal solely with the predictions of the scientists referred to. It was presented in an entertaining way, in an attempt to distil one contribution to a complex debate down to basics and to engage with the audience.
 It is well established that the balance of information does not have to be internally achieved in the same programme. We think a programme can be an advocacy piece and it can be unbalanced and it can give information that is incomplete, so long as the nature of the programme and its purpose is obvious, and there is other balancing information available to the viewer or listener. That other information can come from a variety of other sources or places. It may be found in other broadcasts at around the same time, it may be in newspapers or elsewhere. It may be something which is visible to everybody in the universe of information.
 We do not think that there will be many people in New Zealand who are unaware of the swirl of arguments around global warming. We do not think that there will be many people who are unaware that at one end of the spectrum of views there are those who say it is the greatest issue facing mankind, and at the other end of the spectrum there are those who say it is a myth. In applying broadcasting standards we need to look at the viewers and listeners who live in the real open world rather than those who live in isolation and who in this instance might come out, look at Seven Sharp, be misled by an unbalanced presentation and retire anxiously to be concerned about the future.
 While the claims may have been at the extreme end of predicted outcomes, we think there is a level of sophistication and awareness in New Zealand around the issue of, and ongoing debate about, climate change, such that viewers would have interpreted the predictions with a degree of scepticism. It is likely that viewers would have heard extreme projections of this nature before, and would have seen the predictions as only speculation about what New Zealand might look like in 87 years’ time. Viewer feedback at the end of the item and the light-hearted mockery it received from the presenters indicated that some viewers, and the presenters, did not take the predictions seriously. The feedback included the comments: ‘It’s hard to predict tomorrow’s weather let alone 2100. The world was meant to be gone by 2012’; ‘I personally think we’ll be divided into factions, wearing masks, fighting for supplies to survive the volcanic winter’; and, ‘I’ll be gone by then but my grandchildren will manage nuclear powered businesses that operate dairy farms with cloned cows’.
 We are not willing to take from a broadcaster the freedom to express a one-sided view where it is obvious that is what they are doing, and it is clearly for the purpose of entertainment and stimulation of discussion. For us to say that on occasions such as this there has to be some internal balance, in our view, reduces editorial freedom and interferes with the principle of freedom of expression. We do not think that anybody was misled. We do not want to see the impact of programmes of this kind dampened down by some contrary view of which everybody is aware, having to be expressed internally within the programme.
 For these reasons, we decline to uphold the balance complaint.
 Whilst I agree with the majority decision on accuracy, I disagree on balance. Both standards are directed to the enhancement of public understanding. The objective of the accuracy standard is to protect audiences from receiving misinformation and thereby being misled. I have some misgivings as to how clearly all the views expressed in the programme were opinion and also as to the asserted skepticism of the audience arising from the style of the Seven Sharp programme. However, it is my view that these complaints do not fit easily within the ambit of any assessment that could be completed by the Authority under the accuracy standard. The Authority is not in a position to make a factual determination on any of the climate change disputes. Mr McMillan’s complaint that the items gave the impression that these projections were uncontroversial or incontrovertible is in my view better considered under the balance standard.
 The majority note the change in the media environment since the introduction of the Broadcasting Act 1989. However, recent research referred to by the Law Commission in its report finds that around two thirds or 61 percent of New Zealanders continue to depend on traditional news media sources accessed offline.5 The balance standard remains a broadcasting standard and those viewers are entitled to expect that there will be balance in news, current affairs and factual programmes. The guideline to the standard does refer to views expressed in other coverage but this has typically been seen to mean other news coverage and not a reliance on the viewer canvassing the mass of information available online or elsewhere to achieve balance.
 I agree with Mr McMillan and the majority that climate change, including its extent, causes, and policy responses, are highly controversial issues. TVNZ in its response advised that its complaints committee ‘does not agree that the issue of human caused global climate change is a controversial issue. Most governments of the world accept that global climate change is occurring and have taken steps to address the issue’. This is, in my view, an extraordinary response from the broadcaster who is usually more than willing to critique government policy.
 The balance standard requires the broadcaster to publish ideas it may not wish to, and constrains the format that it can adopt. It ensures issues are not dominated by the powerful. It equips the audience to understand and engage in the controversy. Whilst restricting the broadcaster’s freedom of speech, upholding a balance complaint requires more speech and perspectives and thereby fosters the underlying values of freedom of speech. In this context, upholding a breach of the balance standard is more readily justified than upholds under other standards.6
 This item canvassed the extent of climate change and consequences of that. TVNZ asserted that ‘the item simply sought to consider what the future might look like. It was framed in this way and viewers would have understood this’. However, the introduction framed the item as discussing the question, ‘Is it just a sign of things to come? [Reporter’s name] found a lot of experts who say that it is.’ This question is at the heart of the controversy. The item went on to discuss the answer of some experts to the question. In my view the balance standard is relevant to an item asking this question.
 I find the broadcaster made insufficient efforts to present significant alternative points of view in the item. Guideline 4b to the balance standard states:
The assessment of whether a reasonable range of views has been presented takes account of some or all of the following:
- the programme introduction;
- whether the programme approaches a topic from a particular perspective (e.g. authorial documentaries, public access and advocacy programmes);
- whether viewers could reasonably be expected to be aware of views expressed in other coverage.
 As indicated above I find the introduction raised aspects of the controversy. I agree that this programme approached the topic from a particular perspective; that is, the predictions of the experts referred to and how New Zealand might look if their predictions were realised. The item was akin to an authorial documentary or advocacy programme.
 These types of programmes do not require the same degree of balance as programmes which purport to provide an objective examination of a particular issue. However, the result is not that the balance standard can be ignored; the guideline rather allows a departure from strict compliance with the requirements of the standard. As noted in The Auckland Jewish Council et al and Television New Zealand Ltd,7 programmes that explore an issue from a particular perspective are not necessarily unbalanced, as long as significant opposing viewpoints are sufficiently acknowledged.
 In Butler et al and TVNZ,8 the Authority found that a programme discussing climate change provided sufficient context and acknowledgement of the alternative viewpoints to satisfy the balance standard. This was a human interest piece which featured well-known economist Gareth Morgan’s search for the global warming ‘truth’, and his conclusions. Sunday clearly acknowledged that the causes of global warming were the subject of an ongoing ‘hot debate’, and acknowledged the existence of other perspectives within that debate – for example, the reporter and Mr Morgan briefly summarised and contrasted the main views of the ‘alarmists’ and the sceptics early in the item.
 I am not suggesting that it is necessary in this type of programme to actively argue the case for other viewpoints. However, it is important that there be a clear acknowledgement that there are other points of view. The introduction could have acknowledged the opposing views. For example, in Anderson and Television New Zealand Ltd,9 in the introduction to a programme about the ‘murder on the Blade’ a short overview of the history of the criminal case and conviction of Scott Watson was given. It was then explained that the item was ‘one man’s view’. The majority in that case found this was sufficient for balance to be achieved. The documentary that followed then advanced the opinion of the programme maker that Scott Watson was wrongly convicted of murdering Ben Smart and Olivia Hope aboard Mr Watson’s ketch ‘Blade’. Interestingly the minority in that decision found the introduction insufficient to provide balance where the programme ‘was unashamedly targeted, and the evidence selectively presented, to such an extent as to make the programme unbalanced’.
 In the Seven Sharp item there was no acknowledgment of any opposing viewpoint. While asking the question, ‘Is it just a sign of things to come?’ the programme presented only the views of the particular experts being reported. There was no acknowledgment that there is disagreement or that there are alternate views. This programme portrayed an unbalanced, and at times, overly simplistic view. That the issue is complex and attracts a wide range of views and a divergence in scientific opinion cannot in my view justify an unbalanced, deliberately simplistic, light-hearted approach.
 I agree that this issue is, at this time, a long running issue with an ongoing period of interest. The broad issues in the debate are known to the public. There is a large amount of information in the public domain presenting significantly different – or even fundamentally opposed – views, to those expressed in the Seven Sharp item. In an appropriate case, the existence of such information may well be a weighty factor, supporting a finding that a broadcaster complied with the balance standard where only minimal reference was made to opposing views. However, in this item there was nothing – no reference or context given at all as to the place of these experts in the debate.
 The balance standard exists to promote the free flow of information. In applying the standard we cannot assume a sophisticated, all-knowing, informed audience. If that were the situation there would be no need for the standard. Clearly there are those who are very engaged in this controversy and aware of the competing arguments. However there may be as many who are uninformed. Further, awareness that there is debate over climate change may not include awareness that there is also debate amongst those who accept (human-induced) climate change is occurring as to its extent and projected resulting consequences.
 In the absence of even a cursory reference in the item to contrary viewpoints I would uphold the Standard 4 complaint.
For the above reasons the Authority declines to uphold the complaint that Standard 5 (accuracy) and Standard 8 (responsible programming) were breached.
A majority of the Authority declines to uphold the complaint that Standard 4 (controversial issues) was breached.
Signed for and on behalf of the Authority
22 November 2013
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Mario McMillan’s formal complaint emails – 15 March 2013
2 TVNZ’s response to the complaint – 15 April 2013
3 Mr McMillan’s referral to the Authority (including attachment) – 6 May 2013
4 Mr McMillan’s further comment on referral – 29 May 2013
5 TVNZ’s response to the Authority – 6 June 2013
6 Mr McMillan’s final comment – 17 June 2013
1Bush and Television New Zealand Ltd
, Decision No. 2010-036
2Commerce Commission and TVWorks Ltd, Decision No. 2008-014
3For 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)
5The News Media Meets ‘New Media’: Rights, Responsibilities and Regulation in the Digital Age (March 2013, Wellington, NZLCR 128) at page 86
6Claudia Geiringer and Steven Price, "Moving from Self-Justification to Demonstrable Justification: The Bill of Rights and the Broadcasting Standards Authority"
7Decision No. 2003-028
8Decision No. 2009-063
9Decision No. 2004-224