BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

A segment on Newshub during the election period featured a political reporter discussing the potential factors behind the Labour Party’s drop in the Newshub election poll. During the segment the reporter stated that the National Party’s claim that Labour would increase income tax if elected was a ‘lie’. The Authority did not uphold a complaint that this comment was unfair and biased. The Authority emphasised that it is an important function of the media to comment critically on party policies and actions and that this type of speech has high value in terms of the right to freedom of expression, particularly during election time. Political parties should expect to be subject to robust criticism and the Authority was satisfied the political reporter’s comment did not go beyond what could be expected during the election period. The Authority did not consider the comment amounted to ‘political bias’ as alleged in the complaint, or that it resulted in the National Party being treated unfairly.

Not Upheld: Balance, Fairness

Introduction

[1]  A Newshub segment featured a political reporter discussing the drop in support for the Labour Party in the recent Newshub poll on the eve of the 2017 General Election. The reporter said:
They’ve [reasons for the drop in the poll] both come from National’s dirty politics attack on them. One: that Labour’s going to increase income tax. That is a lie that could have hurt them. Two: this imaginary 11.7-billion-dollar hole that no economist has agreed exists. That also damaged them.

[2]  Ross Miller complained that the political reporter’s comment, that National’s claim that Labour would raise income tax if elected was a ‘lie’, was a ‘subjective assessment’ that demonstrated ‘clear political bias’. Mr Miller submitted that Labour would be increasing tax if they did not enact National’s proposed 2018 budget and that the reporter only addressed one side of the tax policy argument.

[3]  The issues raised in Mr Miller’s complaint are whether the broadcast breached the balance and fairness standards of the Free-to-Air Television Code of Broadcasting Practice.

[4]  The item was broadcast on 21 September 2017 on Three. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The right to freedom of expression and political speech

[5]  The starting point for our determination is to recognise the importance of the right to freedom of expression, and specifically in this case the importance of political speech, which includes the right of broadcasters, political parties and candidates, as well as political commentators or analysts, to impart ideas and information about party policies and election matters, as well as the public’s right to receive that information. As we have said in a number of recent decisions regarding the 2017 General Election,¹ this is an important right in a democratic society and is particularly important in the lead up to a general election, when political parties and candidates are seeking to influence voters, and audiences are seeking information to enable them to make informed voting decisions.

[6]  We may only interfere and uphold a complaint where to do so would impose a limitation on the right to freedom of expression which is reasonable and justified in a free and democratic society.² In deciding whether any limitation on the right to freedom of expression is justified, we first consider the value and public interest in the broadcast, and then weigh that value against the level of actual or potential harm that might be caused by the broadcast. Given the importance of political speech and of enabling political discourse in the lead up to a general election, we will generally only interfere to limit the exercise of that speech when we consider that the harm is great.

Did the item discuss a controversial issue of public importance, which required the presentation of significant viewpoints?

[7]  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 viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.

The parties’ submissions

[8]  Mr Miller submitted:

• The political reporter’s comments demonstrated clear political bias.
• The reporter took Labour’s ‘side in the argument’ without offering competing viewpoints from the National Party.

[9]  MediaWorks submitted:

• The broadcast did not purport to be a balanced or in-depth examination of National’s claims in regards to Labour’s income tax plans.
• The reporter’s reference to National’s claims formed part of his brief summary of likely factors behind Labour’s drop in the recent Newshub poll.
• There was a considerable amount of opinion and analysis from Newshub and other media outlets about Labour’s proposed tax policy and National’s claims regarding the policy.
• Viewers would have been aware of the competing points of view regarding this issue.

Our analysis

[10]  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

[11]  We accept that discussion of Labour’s tax plan in the lead up to the general election on 23 September 2017, in particular National’s criticisms, was a controversial issue of public importance. This was an important and widely covered issue for New Zealand voters in the lead up to the election, which had the potential to impact on their voting decisions.

[12]  However, the reporter’s comment in this case was brief and secondary to the subject matter of the broadcast, which was Labour’s apparent drop in popularity in the Newshub poll. The focus of the segment was the political reporter reporting on the poll and offering a brief commentary on the factors he considered may have contributed to that drop in support for Labour. The Authority has previously recognised that viewers reasonably expect to receive commentary and analysis from political reporters and political correspondents,⁴ and we do not consider that the reporter’s brief reference to National telling a ‘lie’ would have resulted in viewers being uninformed on the topic.

[13] There was significant coverage of the issue of Labour’s tax plans and National’s claims within the period of current interest, in the weeks leading up to the election.⁵ Despite National’s claims, Labour had publicly declared that, if elected, they would not increase income tax.⁶ Labour’s 2017 Election Policy page on their website also explicitly stated that ‘Labour is not proposing any changes to current personal income or corporate tax rates.’⁷ There was a wide range of information available, particularly by the time of this broadcast two days before polling day on 23 September 2017, and viewers could reasonably be expected to be aware of, and/or have access to, reporting of significant views on the issue.

[14] For these reasons we do not uphold the complaint under the balance standard.

Was the National Party treated unfairly?

[15]  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.⁸

The parties’ submissions

[16]  Mr Miller submitted that it was unfair and incorrect for the political reporter to refer to National’s claim regarding Labour’s income tax policy as a ‘lie’.

[17]  MediaWorks submitted:

• There was significant conjecture and disagreement surrounding National’s claims regarding Labour’s tax policy proposals.
• The reporter drew a reasonable conclusion about the veracity of National’s claim that Labour would increase income tax.
• National’s position had already been established by previous media coverage. Therefore it was not necessary for it to be included in the reporter’s analysis in this item.
• The reporter’s comments would not have created an unduly negative impression of the National Party.

Our analysis

[18]  It is well established that the threshold for finding a breach of the fairness standard in relation to politicians or organisations familiar with dealing with the media is higher than for a layperson or someone unfamiliar with the media.

[19]  While the reporter’s comment suggesting that National had told a ‘lie’ was critical, we do not consider it resulted in unfairness to the National Party. The National Party was publicly criticising Labour’s policies during a highly publicised election period, and could reasonably expect a high level of media scrutiny and critical commentary on its election campaigning. We do not consider the comment complained about went beyond what could be expected during the election period. Political commentary and criticism is an important function of the media and the reporter’s comments represented an opinion open to him in light of the surrounding media coverage of National’s claims about Labour’s tax policy.

[20]  We are satisfied that the National Party was not treated unfairly and we consider that upholding this complaint would unreasonably limit the broadcaster’s right to free political expression.

[21]  We therefore do not uphold the complaint under Standard 11.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
15 December 2017  

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:
1  Ross Miller’s formal complaint – 27 September 2017
2  MediaWorks’ response to the complaint – 26 October 2017
3  Mr Miller’s referral to the Authority – 27 October 2017
4  MediaWorks’ confirmation of no further comment – 15 November 2017

¹ For example, see: Curtis and Television New Zealand Ltd, Decision No. 2017-065; Rameka and Māori Television Service, Decision No. 2017-070; and Cullen and Television New Zealand Ltd, Decision No. 2017-072.

² 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.

³ Guideline 8a to Standard 8 – Balance

⁴ For example, Woods and MediaWorks TV Ltd, Decision No. 2015-062

⁵ See, for example: https://www.stuff.co.nz/national/politics/97100197/lies-damn-lies-and-elections-the-biggest-mistruths-this-campaign (Stuff, 21 September 2017); https://thespinoff.co.nz/politics/14-09-2017/of-tax-u-turns-captain-calls-and-clusterfucks/ (The Spinoff, 14 September 2017); http://www.newshub.co.nz/home/election/2017/09/patrick-gower-national-playing-post-truth-politics.html (Newshub, 20 September 2017); https://thespinoff.co.nz/politics/05-09-2017/the-11-7-billion-dollar-question-steven-joyce-and-grant-robertson-cant-both-be-right/ (5 September 2017).

⁶https://www.radionz.co.nz/news/election-2017/337857/labour-rules-out-income-tax-increase (RNZ, 23 August 2017)

⁷http://www.labour.org.nz/tax

⁸Commerce Commission and TVWorks Ltd, Decision No. 2008-014