BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has found that a segment on Newshub regarding the sale of a report summarising data received from schools in a survey run by the Ministry of Education and I.D.C. New Zealand Limited breached the accuracy standard. The item reported on concerns of the New Zealand Educational Institute and survey participants regarding the sale of the report to Microsoft and Google. The Authority found that the statement ‘sensitive, private data about schools and their students pawned off to private companies by Chinese data giant’, which was included in the item, was materially inaccurate and likely to mislead viewers given the data contained in the report was anonymised and aggregated. The Authority also found the broadcaster did not make reasonable efforts to ensure that the relevant statement was accurate and did not mislead.

Upheld: Accuracy

No orders

The broadcast

[1]  An item on Newshub reported on concerns of the New Zealand Educational Institute (NZEI) and participants regarding a school survey that was conducted by the Ministry of Education (The Ministry) and data collection company I.D.C. New Zealand Limited (IDC). The concerns centred around the sale of a report containing a summary of the anonymised and aggregated data to tech companies Google and Microsoft. The item opened with the statement, ‘Sensitive, private data about schools and their students pawned off to private companies by Chinese data giant…’

[2]  The item was broadcast on 31 October 2019 on Three. In considering this complaint, we have watched a recording of the broadcast and read the correspondence listed in the Appendix.

Background

[3]   In February 2018, School Boards of Trustees and school staff were invited to participate in a voluntary survey conducted by IDC regarding the use of digital devices. Information collected from schools was to be used to gain insights into how primary and secondary schools were adopting technology, particularly in schools where students were encouraged to bring their own devices.

[4]  Schools were informed that all data would be presented in an insights report in an aggregated format with no schools or participants individually identified. The anonymised results from the survey were shared in a report provided to the Ministry and sold to Google and Microsoft.

[5]  NZEI raised concerns in late 2018 and early 2019 about allowing broader access to the results and the transparency of the process.

[6]  On 30 October 2019 MediaWorks contacted the Ministry requesting information about why the survey (intended to run for multiple years) was stopped after one year, and whether the Ministry was confident the information had been used appropriately.

[7]  The Ministry replied on 31 October 2019. MediaWorks followed up with an email saying they would like to conduct an interview with the Ministry, asking about who had access to the information and whether there were any concerns about the link between IDC and China Oceanwide Holdings (COH) as COH had ‘close ties to the Chinese Government’.

[8]  On 31 October 2019 at 5.18pm the Ministry referred MediaWorks to IDC for specific information about the data it held as the Ministry was not in a position to discuss commercial information on IDC’s behalf.

[9]  MediaWorks attempted to contact IDC multiple times via its website in the 48 hours leading up to the broadcast. IDC appeared to have not received these messages due to internal systems issues. An IDC spokesperson phoned MediaWorks immediately prior to the broadcast to talk about the study and its sale to Google and Microsoft.

The complaint

[10]  The Ministry and IDC submitted the broadcast breached the accuracy standard of the Free-to-Air Television Code of Broadcasting Practice¹ for the following reasons:

• The statement, ‘sensitive, private data about schools and their students pawned off to private companies by Chinese data giant’ was inaccurate and not backed up by evidence.
• An IDC representative made MediaWorks aware of the following facts:
• Data vs Report – The output of the survey was an insights report, not the data itself. The data was anonymised before going into the report.
• Background of the study into schools’ use of technology, including why it was commercialised – As the Ministry was not funding the full comprehensive study, additional sponsors were needed to go ahead. Microsoft and Google agreed to purchase the anonymised report, but they did not receive the raw data. No other parties received the report or the raw data.
• Publication Details – The report was not published and only a summary of the report was made public.
• Despite having the facts necessary to dispel the assertion, MediaWorks continued with the incorrect statement.
• MediaWorks’ statement conflated the raw data with the anonymised data. The raw data collected by IDC was not sold or shared with any unauthorised party. It was held securely by an authorised third party who acted in compliance with privacy laws and security guidelines.
• A summary of the report sold to Google and Microsoft is publicly available on the Ministry’s website.
• MediaWorks did not ask the IDC spokesperson about IDC’s ownership model, or whether China Oceanwide has access to IDC data or systems (which it does not).

The broadcaster’s response

[11]  MediaWorks did not agree the accuracy standard was breached, for the following reasons:

• The story was accurate and well researched. It reflected the concerns held by school principals and the NZEI.
• MediaWorks requested an interview with the Ministry and gave it ample opportunity for a full right of reply. The Ministry chose not to engage and be fully tested on the issues raised with Newshub about the survey. There was significant public interest in the Ministry responding to the issues and being held to account in an interview. If the Ministry had issues regarding the level of concern caused to parents and students, an interview would have been a good opportunity to allay those fears.
• The statement complained about was wholly accurate and backed up by evidence.
• ‘The data is sensitive – it contains schools' budget information and cyber security information. The data is private – the survey responses, aggregate or otherwise, are not publicly available, instead only made available to Microsoft and Google at a cost. The data was about schools and their students – again, it contained information about budgets and security of schools and their students. The data was pawned off to private companies as confirmed by IDC, Google and Microsoft were its customers. It was sold by a Chinese data giant – IDC is 90% owned by China Oceanwide Holdings - a Chinese data giant.’
• MediaWorks set out several questions to the Ministry in writing which were not addressed in the brief five-line statement it provided.
• The reporter made three attempts to contact IDC through the IDC press relations website. MediaWorks were contacted by IDC 15 minutes before the story was due to run.
• ‘In good faith, we delayed the broadcast of the story to include a response from IDC though at that time, so close to deadline and after several attempts to make contact, it was not necessary for us to do so.’
•  ‘The IDC representative contacted us following a call from the Ministry of Education. The Ministry was aware we were working on the story two days before it ran (email contact 1845 Wednesday 30 October) and therefore could have contacted IDC at that time rather than fifteen minutes before we went to air.’

The relevant standard

[12]  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 being significantly misinformed.²

Our findings

[13]  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, is the starting point in our consideration of complaints. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[14]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.³

[15]  Audiences may be misinformed in two ways: by incorrect statements of fact within the programme; and/or by being misled by the programme.⁴ Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’⁵

[16]           The standard is concerned only with material inaccuracies. Technical or unimportant points that are unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.⁶

Was the statement a statement of fact, or analysis, comment or opinion?

[17]  A fact is verifiable: something that can be proved right or wrong. An opinion is someone’s view. It is contestable, and others may hold a different view.⁷

[18]  Collectively we reached the view that the relevant statement amounted to a statement of fact to which the accuracy standard applied. While we consider the statement as a whole contained value judgements, for example the use of the term ‘Chinese data giant’, which could be interpreted as comment or opinion, we also find it included information, specifically the description of the data as ‘sensitive’ and ‘private’, that was capable of being proven right or wrong. Additionally, we note that other contextual factors⁸ – including the definitive tone of the statement, the statement being the centre of the story which MediaWorks supported throughout the broadcast, the nature of the news report and the definitive language used in the rest of the report – support the conclusion that the statement is one of fact.⁹

Was the statement materially accurate?

[19]  The complainant raised several issues with the accuracy of this statement, including the use of the terms ‘data’ to refer to the anonymised report and ‘Chinese data giant’ to refer to the IDC. We did not consider these were material to the broadcast as a whole or would have affected viewers’ overall understanding of the broadcast.¹⁰

[20]  In our view, the key issue which formed the focus of our deliberations, is whether it was accurate to present the information contained in the survey report as ‘sensitive, private data’.

[21]  There was significant discussion amongst the Authority members regarding what constitutes ‘sensitive’ and ‘private’ information. We considered a wide range of sources and definitions and considered how similar phrases are defined in legislation¹¹ and by other government organisations.¹² Ultimately, we found the information contained in the report was not ‘sensitive’ or ‘private’, primarily because no individual or organisation was identifiable within the report. While the information covered subjects that some may consider to be sensitive, such as school budgets and cyber security, the data collected had been anonymised and aggregated to the point that no specific piece of information was attributable to a specific survey participant. We also note that a summary of the report sold is available on the Ministry’s website in the public domain.

[22]  While we understand participants in the survey may not have appreciated that the report would be sold to Google and Microsoft, we do not consider this affects the nature of the information itself. As discussed above, it was impossible to identify any specific individual or organisation in the report or attribute any specific information to a particular individual or organisation.

[23]  Accordingly, we consider the information sold was not ‘sensitive’ or ‘private’ and therefore we found the statement in question was inaccurate and would have materially misled viewers as to the nature of the information sold to tech companies, which went to the heart of the story.

Did MediaWorks make reasonable efforts to determine the accuracy of the statement?

[24]  Having found the statement to be materially inaccurate, we now turn to the second branch of the accuracy standard, considering whether MediaWorks made reasonable efforts to determine the accuracy of the statement.

[25]  In our assessment of whether the broadcaster has made reasonable efforts to ensure the accuracy of the statement, some of the factors we may consider include:¹³

• the source of the material broadcast, including whether the broadcaster relied on an authoritative expert
• whether there was some obvious reason to question the accuracy of the programme content before it was broadcast
• whether the broadcaster sought and/or presented comment, clarification or input from any relevant person or organisation.

[26]  Having regard to these points we note:

• In our view, there was obvious reason for MediaWorks to question the accuracy of ‘sensitive, private data’ to describe the nature of the (anonymised and aggregated) information contained in the report. IDC had advised MediaWorks that only the report, not the data, was provided to the technology companies. The survey letter to participating schools also outlined that the results would be used by ‘technology providers’ but that data would only be presented in an ‘aggregated format with no schools or participants individually identified in the resulting report’.
• MOE could have clarified this point had it participated in an interview. However, the fact it declined an interview does not absolve the broadcaster from making other efforts to ensure the language used was accurate and would not mislead. Similarly, the fact the broadcaster experienced issues obtaining timely comment from IDC does not mean no further efforts to ensure accuracy were required.
• The broadcast did include comment from school principals and the NZEI National Secretary about why they felt it was unclear the information could be sold to companies (though this seemed to contradict the survey letter advising participants the information would be used by technology providers).
• The broadcast also featured comment from the AUT Head of Computer Science on the potential for people to use the information in a harmful way (namely the schools could be susceptible to phishing attacks). We sought further submissions from the broadcaster to confirm whether the AUT representative was aware that the information contained in the report sold was anonymised and aggregated. If he was so aware, it could be argued it was reasonable for the broadcaster to rely on his views that sharing even anonymous, aggregated data could pose serious risks to schools – supporting the use of the terms ‘sensitive, private’. MediaWorks advised that the AUT representative was provided with a copy of the survey questionnaire which, in MediaWorks’ view, ‘made it clear that answers would be kept confidential and would not identify the respondent or their school’. However, MediaWorks presented no evidence that he had read the relevant qualifications in the questionnaire or otherwise understood that what was sold was anonymised and aggregated information only. Having the means to know a fact does not equate to knowledge of that fact. In these circumstances, we do not consider MediaWorks is able to rely upon the AUT expert’s views to support its use of the relevant terms.

[27]  In its further submissions, MediaWorks also commented regarding the sensitivity of the questions asked of schools noting:

Almost all of [the information requested] was private and/or commercially sensitive. The questions requiring the respondent to speculate on the school community’s ability to pay for technology [were] intrusive and ‘sensitive’ even if aggregated or anonymised. It is the sensitivity of these questions which gave rise to concerns by principals and other respondents that the information was being shared.

[28]  The statement which was the subject of the complaint, however, related to the sensitivity of what was sold (the report) rather than the sensitivity of the original questions. Accordingly, the fact that some considered the questions themselves sensitive does not support an argument that MediaWorks took reasonable steps to ensure the accuracy of the challenged statement.

[29]  For the above reasons, we find that MediaWorks did not make reasonable efforts to ensure that the relevant statement was accurate and not misleading.

[30]  Therefore, we uphold the complaint.

For the above reasons the Authority upholds the complaint that the broadcast by MediaWorks TV Ltd of Newshub on 31 October 2019 breached Standard 9 of the Free-To-Air Television Code of Broadcasting Practice.

[31]  Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. We consider the publication of this decision is sufficient to publicly notify the breach of the accuracy standard and to censure the broadcaster.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair
29 June 2020

Appendix

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

1                 IDC New Zealand Education Study - Full Report – 2018

2                 IDC New Zealand Education Study – Summary – 2018

3                 Survey letter sent to schools – February 2018

4                 Ministry of Education Bulletin for School Leaders – February 2018

5                 Correspondence between MediaWorks and the Ministry – 30-31 October 2019

6                 The Ministry and IDC’s original complaint – 1 November 2019

7                 MediaWorks’ response to the complaint – 6 November 2019

8                 The Ministry and IDC’s referral to the Authority – 19 November 2019

9                 MediaWorks’ confirmation of no further comment – 13 January 2020

10              MediaWorks’ further submissions – 25 May 2020

¹ The Free-to-Air Television Code of Broadcasting Practice was refreshed with effect from 1 May 2020. This complaint has been determined under the April 2016 version of the Free-to-Air Television Code of Broadcasting Practice as the relevant broadcast pre-dated the 1 May 2020 version.
² Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
³ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁴ As above
⁵ Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
⁶ Guideline 9b
⁷ Guidance: Accuracy - Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 62
⁸ As above
⁹ As above
¹⁰ Guideline 9b
¹¹ Definition of ‘Personal Information’ found in the Privacy Act 1993
¹² Definition of ‘Data Confidentiality’ found on <www.data.govt.nz>
¹³ Guideline 9d