BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 5 (accuracy) – items implied MSD had hired a drag artist as a motivational speaker – MSD had really hired Edward Cowley as a professional facilitator – misleading and inaccurate – upheld

Standard 6 (fairness) – unfair to MSD and to Mr Cowley – upheld

Standard 4 (balance) – subsumed into Standards 5 and 6

Order
Section 16(4) – payment of $2500 costs to the Crown

This headnote does not form part of the decision.

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Broadcast

[1]   An item on 3 News, broadcast on TV3 at 6pm on 24 August 2007, reported that the Ministry of Social Development had hired a “prominent drag queen to motivate staff” and that the National Party was questioning whether it was appropriate. The report stated that Edward Cowley, known as “Buckwheat”, had been hired as a motivational speaker for its Pacific Island staff.

[2]   The reporter said that National MP Judith Collins had “discovered the career move” in the “Gay Express” newspaper that was sent to all MPs. The newspaper story had said that Buckwheat would provide motivational training and special projects. Ms Collins commented:

We’ve got 22 people in that Ministry that are paid over $200,000 a year. I would have thought they could have found some motivational leadership in there somewhere.

[3]   The reporter said that a spokeswoman for the Ministry of Social Development had accused 3 News of “gay bashing” when it had called for comment, and that the Minister for Social Development Steve Maharey’s office had said there were no plans to employ Buckwheat. The reporter said:

But late today the Ministry confirmed Buckwheat has been contracted before to speak at Fono, professional development seminars for Pacific Island staff, and would be again.

The Ministry’s statement continues, saying both his recognition in the community and his facilitation skills were the basis for hiring Mr Cowley and they were pleased with his work. They say he doesn’t have an ongoing contract but given the right opportunity the Ministry would engage him again.

[4]   The item reported that the National Party believed taxpayers’ money was being wasted, and Ms Collins stated that hiring Buckwheat was “just another example of the sort of bloating in that particular Ministry”. The reporter said that Buckwheat had just finished a nine-year role as a community educator for the AIDS Foundation, working in gay and Pacific communities. Because he was currently overseas, the reporter stated, he was unavailable for comment.

[5]   An edited version of the same report was broadcast during Nightline at 10.30pm the same evening. The Nightline report was introduced as follows:

A prominent drag queen has been hired by a government department to galvanise staff, and the National Party is questioning whether it’s appropriate.
Edward Cowley, known as Buckwheat, was hired by the Ministry of Social Development as a motivational speaker for its Pacific Island staff.

Complaint

[6]   Peter Hughes, the Chief Executive of the Ministry of Social Development, made a formal complaint about the item on behalf of the Ministry to TVWorks Ltd, the broadcaster. He alleged that the item was unbalanced, inaccurate and unfair. By way of background information, Mr Hughes noted that the Ministry was the biggest employer of Pacific people in the public sector, with more than 1000 Pacific staff.

[7]   In terms of developing the leadership capability of Pacific staff, Mr Hughes wrote, the Ministry held a professional development Fono every two years, most recently in April 2006. A number of facilitators had been contracted to the Ministry, including Edward Cowley. Mr Hughes added:

He is a professional facilitator who has at times managed up to 14 other facilitators. He has acted as a facilitator four times over the past eight years at Ministry organised Fono. On each occasion Mr Cowley was engaged for his facilitation skills.

[8]   The complainant said that Mr Cowley’s role had been to ensure that the programme ran to time and that attendees and speakers were aware of where sessions were being held. In addition, Mr Hughes said, Mr Cowley had facilitated breakout sessions and reporting back from those sessions. The complainant stressed that the Ministry had never employed Mr Cowley as an entertainer or in any other performance role. He had not performed at Fono, Mr Hughes added, and had never performed at any event organised or run by the Ministry. Nor had the Ministry ever employed him as a motivational speaker. Despite this, he noted, the two items broadcast on TV3 had stated that the Ministry had employed Mr Cowley as a motivational speaker.

[9]   The complainant said that the items appeared to have stemmed from a press release issued by the New Zealand AIDS Foundation, which included the following sentence:

Once finishing up with NZAF, [Mr Cowley will] be expanding his work with Pacific communities with motivational training and projects for the Ministry of Social Development.

[10]   The press release had then been used as a basis for an article in the “Gay Express” newspaper, Mr Hughes said. The article had not quoted Mr Cowley, but had included the following sentence:

His new career move will be motivational training and special projects with the Ministry of Social Development.

[11]   Mr Hughes stated that, on the morning of the broadcast, the Ministry had received a phone call from 3 News enquiring about Mr Cowley and his relationship with the Ministry. At 11am that morning, a 3 News reporter had followed up the telephone call with an email requesting details about Mr Cowley. The Ministry had attempted to contact Mr Cowley but he was overseas.

[12]   Mr Hughes said that a representative from the Ministry had phoned the 3 News reporter and made it clear that Mr Cowley had been employed and had worked for the Ministry as a professional facilitator, and not as a motivational speaker or a drag artist. During the conversation, he noted, the Ministry staff member had expressly told the reporter that Mr Cowley “wasn’t wearing a dress”.

[13]   The complainant stated that the Ministry had followed up this conversation by sending an email to the reporter at 4pm that day. The email explained the Ministry’s relationship with Pacific staff and the reasons for holding a Fono. It said:

Ministry of Social Development has contracted Mr Cowley before for these Fono in his capacity as a professional facilitator. He is very well respected and has won recognition for his commitment to the Pacific Island community.

Both his recognition in the community and his facilitation skills were the basis for hiring Mr Cowley and we were very pleased with his work. Mr Cowley does not have an ongoing contract with us, however given the right opportunity the Ministry would be happy to engage him again.

[14]   Despite this explanation, the complainant observed, the two news items had begun by stating that the Ministry had hired “a prominent drag queen” to motivate or galvanise staff. The items had repeatedly referred to “Buckwheat” rather than Mr Cowley, and had contained video footage of Buckwheat performing and appearing in an Air New Zealand promotional advertisement. They had also included the still image of Buckwheat which had accompanied the story published in the “Gay Express” newspaper, he wrote.

[15]   Mr Hughes noted that the items did not include any images of Mr Cowley working as a facilitator, nor had they referred to him being employed in that capacity. Although the items did quote part of the Ministry’s statement, he said, the way that this had been done did not overcome the lack of balance, unfairness, and the inaccuracies in the items.

[16]   Turning to consider the standards individually, Mr Hughes contended that the two items did not comply with the requirement for balance in Standard 4. He argued that the broadcaster did not make a reasonable effort to present the Ministry’s point of view that Mr Cowley’s unrelated activity as a drag artist was irrelevant to his engagement with the Ministry. Instead, Mr Hughes wrote, the items had focused on the persona Buckwheat, despite the fact that the Ministry had told 3 News that Mr Cowley had never been contracted by the Ministry in his capacity as a drag artist or entertainer.

[17]   The complainant said that the Ministry had expressed concern to 3 News that the story had the potential to be unbalanced if the broadcaster presented it in the way that it had ultimately chosen to. He explained that the Ministry representative had said the following to the 3 News reporter:

You need to be extremely aware that you are running a very big risk if you seek to minimise Mr Cowley by using his drag persona to make him an object of fun and do not balance this by portraying his other talents and commitment to the community. If you do not do this TV3 could quite easily be accused of gay bashing.

[18]   In conclusion, Mr Hughes said that the Ministry considered that the focus on Buckwheat, and the failure to set out the true facts about the Ministry’s engagement of Mr Cowley as a facilitator resulted in the items lacking balance and impartiality.

[19]   Turning to Standard 5 (accuracy), the complainant alleged that the items were inaccurate on two points. First, both had stated that Mr Cowley had been hired as a “motivational speaker for its Pacific Island staff”. Mr Hughes noted that the Ministry had advised 3 News that Mr Cowley had been contracted as a professional facilitator, not as a motivational speaker.

[20]   Second, the complainant said, the Ministry had never contracted with “Buckwheat”, but had only ever contracted with Mr Cowley in his capacity as a professional facilitator. He had not performed at any Fono or other event run by the Ministry. In the complainant’s view, the repeated references to “Buckwheat” and the accompanying images served to reinforce the inaccurate statement at the beginning of the items that the Ministry had engaged a drag artist.

[21]   Mr Hughes contended that the items were both misleading and inaccurate in the above respects.

[22]   Referring to guideline 5e to Standard 5, Mr Hughes maintained that the broadcaster had appeared to rely on three information sources for the items, namely Judith Collins MP, the article in the “Gay Express”, and the telephone call and statement from the Ministry. He contended that the broadcaster’s approach constituted a failure to take all reasonable steps to ensure that its sources were reliable.

[23]   In the complainant’s view, there were two first-hand sources of information about the Ministry’s engagement of Mr Cowley. These were the Ministry and Mr Cowley. He noted that 3 News had received the Ministry’s account and, despite this, it had chosen to rely on the “understandable, but nevertheless mistaken, interpretations by tertiary sources” of the AIDS Foundation press release.

[24]   Mr Hughes noted that the AIDS Foundation press release had included the following statement:

Once finishing up with NZAF, [Mr Cowley will] be expanding his work with Pacific communities with motivational training and projects for the Ministry of Social Development.

[25]   This statement was ambiguous, the complainant asserted. Only one of the two possible readings was accurate, however, and this was that the motivational training was with Pacific communities, not with the Ministry. Mr Hughes maintained that the broadcaster’s reliance on the misinterpretations of the press release by Ms Collins and the “Gay Express”, rather than on the Ministry’s first-hand account of the facts, constituted a failure to take reasonable steps to ensure the reliability of its sources.

[26]   With respect to Standard 6 (fairness), the complainant considered that Ministry staff had not been dealt with fairly. The item, he said, gave viewers the clear impression that the Ministry had spent public money on employing a drag artist as a motivational speaker for its Pacific staff. This trivialised the serious and important contribution which the Fono made to the development of the Ministry’s Pacific staff, and thereby their ability to deliver services to the Pacific community in New Zealand.

[27]   In addition, the complainant contended that Mr Cowley had not been dealt with fairly by the broadcaster. The items had gone to air without his comment, Mr Hughes noted, even though the broadcaster could have waited to broadcast the items once he had been contacted for a response. Moreover, in the complainant’s view, the way in which Mr Cowley was portrayed in the items was unfair. Because of the exclusive focus on his performing role as Buckwheat, the items did not present viewers with a fair reflection of his ability as a professional facilitator – the capacity in which he was contracted to the Ministry.

[28]   Mr Hughes argued that the items had breached guideline 6a by including images of, and references to, Buckwheat which created a distortion of the original events. He stated that Nightline had also breached guideline 6a because it had not included a substantial portion of the Ministry’s statement.

Standards

[29]   Standards 4, 5 and 6 and guidelines 5b, 5e and 6a of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. These provide:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with 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.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Guidelines

5b    Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

5e    Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Guideline 6a

Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.

Broadcaster's Response to the Complainant

[30]   Looking first at Standard 4 (balance), TVWorks contended that the standard was directed at the reporting of controversial issues of public importance. It did not consider that the issue regarding the employment of one individual by a government department raised any such issue. Accordingly, the broadcaster found that the balance standard did not apply.

[31]   With respect to Standard 5 (accuracy), the broadcaster did not agree with the complainant that the reporting was “inaccurate in any material way”. The report said that Mr Cowley had been employed to motivate staff at the Ministry, it said, but this characterisation of Mr Cowley was not materially inaccurate in light of the Ministry’s response to 3 News and the published material about his current activities. The broadcaster said it was satisfied that the reporter had made “extensive enquiries” before preparing the item and that the item had “accurately reflected the outcome of her investigations”. The broadcaster outlined a lengthy response from the reporter which included the following:

• The reporter had first called the Ministry at 8.50am on the morning of the broadcast, and had explained the reason for her call. She was told the information would be supplied as soon as possible.
• After being asked to put the request in writing and doing so, the reporter called again at 12.05pm and was told “everybody is at lunch”.
• The reporter had, in the meantime, contacted the AIDS Foundation who had confirmed that Mr Cowley had left the organisation to work as a motivational speaker for the Ministry.
• Having tried to contact Mr Cowley with no success, the reporter spoke to one of his colleagues at a cabaret bar who had also confirmed that Mr Cowley was being paid by the Ministry to motivate staff.
• The reporter contacted Minister Steve Maharey’s office and was told that Mr Cowley had never been contracted and would not be in the future. Calling the Ministry back to confirm this, the reporter was told it was difficult to confirm either way because the Ministry employed so many people.

[32]   The broadcaster contended that the items had never mentioned Mr Cowley appearing as a drag artist within the Ministry. It was publicly known that Mr Cowley was a drag artist, it wrote, and therefore the story included footage of him as such to show the subject of the story. It noted that portions of the Ministry’s statement had been included in the item.

[33]   TVWorks noted that Mr Cowley had been contracted by the Ministry to work at a Fono, and his role had included facilitating breakout sessions and reporting back from those sessions. In other words, it said, his role had included speaking at the Fono in some capacity.

[34]   The broadcaster contended that the average viewer could reasonably, and perhaps understandably, regard the role of a professional facilitator (especially one participating at a professional development forum) as either being akin to, or closely aligned with, that of a motivational speaker. It observed that the Ministry’s own statement did not make it clear what the role of a “professional facilitator” entailed, adding:

...given the same paragraph describing Mr Cowley’s capacity at the Fono also contained a sentence saying “He is very well respected and has won recognition for his commitment to the Pacific Island community” – the statement imparted a sense that Mr Cowley’s contribution to the Fono was significant, valuable and, quite conceivably, motivating or galvanising for those Pacific Island staff attending the Fono.

[35]   While Mr Cowley was unquestionably a “prominent drag queen” and a “popular performer” and was widely known as Buckwheat, TVWorks argued, the items made it clear he was not engaged by the Ministry in either capacity but was engaged “in a new role with the Ministry of Social Development”. Further, it said, the items unequivocally acknowledged that the Ministry’s basis for hiring Mr Cowley was due to his “recognition in the community and his facilitation skills”, not on account of him being a drag artist.

[36]   For the above reasons, TVWorks did not consider that the reporting failed in any material way to meet the requirements of Standard 5.

[37]   Turning to Standard 6 (fairness), the broadcaster maintained that the items were not unfair to either the Ministry, its staff, or to Mr Cowley. In terms of the complaint that the items gave viewers the clear impression “that the Ministry had spent public money on employing a drag artist as a motivational speaker”, the broadcaster referred to its comments above. It noted that the items included comments critical of the Ministry decision to employ Mr Cowley, rather than use resources available in-house, and they had also included portions of the Ministry’s response. TVWorks stated that the reporter had made efforts to contact Mr Cowley but relied upon published material and reliable sources for the material in the item.

[38]   Overall, the broadcaster found that the items presented a fair reflection of Mr Cowley’s varied professional abilities and talents, and had made it clear that he was overseas and unavailable for comment. It did not consider that the Ministry’s staff had been treated unfairly, or that the items created a distortion of the original events. Accordingly, TVWorks declined to uphold the fairness complaint.

Referral to the Authority

[39]   Dissatisfied with the broadcaster’s response, Mr Hughes referred the Ministry’s complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989.

[40]   The complainant maintained that Standard 4 (balance) was applicable. It argued that the first words of the 3 News item showed that TVWorks considered that the item raised a controversial matter of public importance – namely, the potentially inappropriate use of public funds. The introduction said:

A government department has hired a prominent drag queen to motivate staff, and the National Party is questioning whether it’s appropriate.

[41]   The complainant also contended that both 3 News and Nightline were programmes which dealt with the matters set out in guideline 4a to Standard 4, those being “political matters, current affairs, and questions of a controversial nature”. Therefore, he said, the items were required to show balance and impartiality.

[42]   Mr Hughes maintained that the items were inaccurate, noting that the broadcaster had merely asserted that the items were not “materially inaccurate”. He stated that it was unclear what test of materiality the broadcaster was applying, and what inaccuracies it was admitting.

[43]   The real question, the complainant said, was what the reasonable viewer would understand from the items, and whether that understanding would be factually accurate. It was clear to the Ministry that the items were intended to lead viewers to believe that the Ministry had employed a drag queen to appear as such at the Ministry, and to leave room for no other interpretation. This impression was reinforced, Mr Hughes said, by the words in the item, the repeated references to Buckwheat, and the repeated images of Buckwheat performing as a drag artist.

[44]   Mr Hughes contended that the words in the item that “the Ministry confirmed Buckwheat has been contracted before to speak at Fono” would have led viewers to believe that the Ministry had engaged drag artist Buckwheat, not professional facilitator Edward Cowley.

[45]   The complainant asserted that the reporter’s “allegedly extensive efforts” were not relevant to whether the items were accurate. Whether the items were accurate turned on whether the facts conveyed by the items accorded with the truth, he said.

[46]   Mr Hughes acknowledged that the reporter’s efforts could potentially be relevant to the application of guideline 5e (reliability of sources). However, he did not accept that the reporter’s efforts assisted the broadcaster in this case. To rely on inaccurate statements by secondary and tertiary sources, he said, rather than accurate statements from the Ministry as a primary source, was a breach of the guideline.

[47]   The complainant did not accept TVWorks’ arguments to justify the use of the term “motivational speaker” in the item. First, he said, the fact that Mr Cowley may have spoken when reporting from breakout sessions did not equate his role to that of a motivational speaker. Second, Mr Hughes considered that it was clear that the terms “professional facilitator” and “motivational speaker” had different meanings. Third, he said, the fact Mr Cowley was well respected was only a factor in the Ministry’s decision to engage him, and did not change the role for which he was engaged.

[48]   Mr Hughes reiterated the Ministry’s view that the items were capable of only one interpretation: that the Ministry had hired a drag artist to appear as such.

[49]   With respect to Standard 6 (fairness), the complainant maintained that the broadcaster had failed to treat the Ministry’s staff and Mr Cowley fairly. He said that the broadcaster’s response suggested that the items were fair to Mr Cowley because the reporter had attempted to contact him, and because the item stated that he was unavailable for comment. However, Mr Hughes argued, the question remained whether as a whole the items were fair to Mr Cowley. He considered that by inaccurately conveying that the Ministry had engaged Buckwheat as a motivational speaker, and by reporting criticisms by third parties, the items were unfair.

[50]   In the complainant’s view, the Ministry’s staff had been treated unfairly because the items “sought to trivialise Fono by conveying the impression that the Ministry had hired a drag artist to motivate staff”. In doing so, he wrote, the items did not fairly reflect the valuable work of Pacific Island staff in assisting the Ministry’s clients, or the Ministry’s commitment to the professional development of its staff.

[51]   Looking at guideline 6a, the complainant argued that the editing of the programme material created a distortion of the original events.

Further Information Requested by the Authority

[52]   The Authority asked TVWorks to clarify whether it disputed any or all of the Ministry’s account of a conversation between a Ministry representative and the 3 News reporter which the Ministry said had taken place at 2.30pm on the day of the broadcast. The Authority referred to the following excerpt from the Ministry’s formal complaint which said:

[The reporter] said that if the Ministry of Social Development had spent money on drag artists, people would want to know. [The Ministry representative] made clear that Mr Cowley had been employed and had worked for the Ministry as a professional facilitator, and not as a motivational speaker or drag artist. During the conversation [the Ministry representative] said expressly “he wasn’t wearing a dress”.

[53]   TVWorks said that the 3 News reporter confirmed that the conversation had taken place and did not dispute in general terms the content of the conversation. However, the reporter could not confirm the actual words as set out in the Ministry’s complaint.

[54]   The broadcaster said that the reporter had no recollection of the Ministry representative “making the fine distinction between ‘professional facilitator’ and ‘motivational speaker’” and could not recall the comment about the dress specifically. However, the reporter confirmed that the conversation had taken place at approximately 2.30pm on the day of the broadcast.

[55]   TVWorks reiterated its view that the item had made it clear that Mr Cowley had been contracted in a professional, rather than entertainment, capacity.

Authority's Determination

[56]   The members of the Authority have viewed recordings of the broadcasts complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Procedural Matter

[57]   The Authority notified Edward Cowley in writing that it was determining a complaint about the 3 News and Nightline items. Mr Cowley confirmed that he had received this notification, and stated that he would like to receive a copy of the decision once released.

[58]   The Authority sent a copy of its notification letter and Mr Cowley’s response to MSD and TVWorks.

Standard 5 (accuracy)

[59]   The Authority agrees with the Ministry that viewers of both items would have been left with the impression that the Ministry of Social Development had hired Buckwheat the drag artist to appear at its Fono for Pacific Island staff. The item contained statements such as:

A government department has hired a prominent drag queen to motivate staff.

Popular performer Buckwheat has a new role, with the Ministry of Social Development.

The magazine says Buckwheat, real name Edward Cowley, will provide motivational training and special projects.

[60]   In addition to these statements, the items contained striking footage of Buckwheat wearing dresses and elaborate makeup and blowing kisses to the camera. During the 3 News item, a picture of Buckwheat appeared on the screen alongside excerpts from the Ministry’s statement to TV3.

[61]   The Authority considers that the combination of the reporter’s statements and the images in the items built a picture that Buckwheat had been hired by the Ministry to work at its Fono. Because the Ministry had actually contracted Edward Cowley as a professional facilitator, the Authority considers that viewers would have been misled by the items.

[62]   Furthermore, the Authority disagrees with TVWorks’ argument that “the average viewer could reasonably...regard the role of a professional facilitator (especially one participating at a professional development forum) as either being akin to, or closely aligned with, that of a motivational speaker”. The Ministry has advised the Authority that Mr Cowley’s tasks at the Fono were to ensure that the programme ran to time and that attendees and speakers were aware of where sessions were being held, and to facilitate and report back from breakout sessions. In the Authority’s view, this role was not akin to what any reasonable viewer would regard as the role of being a “motivational speaker”.

[63]   The Authority rejects TVWorks’ contention that the item made it clear that Mr Cowley had been contracted in a professional, rather than entertainment, capacity. In the Authority’s view, the news items clearly questioned whether hiring “Buckwheat” was a waste of taxpayers’ money; the true situation was not a newsworthy story.

[64]   Accordingly, the Authority finds that the 3 News and Nightline items were misleading and inaccurate because they implied that Buckwheat the drag artist had been hired as a motivational speaker, when in reality Edward Cowley had been contracted as a professional facilitator. It upholds the Standard 5 complaint.

[65]   The Authority notes that the Ministry also referred to guideline 5e (reliability of sources) in its complaint. The Authority considers that the issue of whether the broadcaster should have reported the Ministry’s account – rather than relying on Judith Collins and the “Gay Express” newspaper – has already been dealt with in its finding that the item was misleading and inaccurate.

Standard 6 (fairness)

[66]   Standard 6 requires broadcasters to deal justly and fairly with persons or organisations taking part or referred to in programmes. The complainant has argued that Mr Cowley and the Ministry were treated unfairly by the broadcaster.

Unfairness to the Ministry

[67]   In the Authority’s view, the item invited viewers to question whether the Ministry of Social Development had used taxpayer money inappropriately to hire a drag queen to motivate Pacific Island staff. National MP Judith Collins noted in the item that 22 Ministry staff were paid over $200,000 per annum, and stated “I would have thought they could have found some motivational leadership in there somewhere”.

[68]   As discussed above, the Authority considers that the items breached Standard 5 because they did not accurately report that Edward Cowley was hired by the Ministry as a professional facilitator. Because the items implied that Buckwheat the drag artist had been hired as a motivational speaker, the Authority considers that viewers would have been left with the impression that the Ministry was using taxpayers’ money frivolously. Accordingly, the Authority finds that the broadcaster treated the Ministry unfairly by implying that it was wasting taxpayers’ money on hiring entertainment for its Pacific Island staff.

[69]   Accordingly, the Authority upholds the complaint that the broadcaster did not deal justly and fairly with the Ministry and its staff. It finds that Standard 6 was breached on this occasion.

Unfairness to Mr Cowley

[70]   The Ministry complained that Mr Cowley was treated unfairly because the items did not present viewers with a fair reflection of his ability as a professional facilitator – the capacity in which he was contracted to the Ministry – and instead focused on his performing role as Buckwheat. It also complained that the items had been broadcast without Mr Cowley’s response.

[71]   The Authority agrees that Mr Cowley was treated unfairly. In addition to performing as “Buckwheat” the drag artist, Mr Cowley works as a professional facilitator and in that capacity he had facilitated the Fono as part of the professional development of Pacific Island staff.

[72]   Because the items misrepresented Mr Cowley’s contribution to the Fono and the nature of the work for which he was contracted by the Ministry, the Authority finds that he was treated unfairly in breach of Standard 6. It upholds this part of the complaint.

Guideline 6a

[73]   The Ministry also argued that the items had breached guideline 6a by including images of, and references to, Buckwheat thereby creating a distortion of the original events. It also argued that guideline 6a was breached because the Nightline item failed to include a substantial portion of the Ministry’s statement. Guideline 6a states:

Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.

[74]   In the Authority’s view, this guideline is not relevant on this occasion. The Ministry’s concern relating to images of Buckwheat has already been dealt with in the Authority’s consideration of Standard 5 (accuracy) above. Further, there is no suggestion that the extracts from the Ministry’s statement were a distortion of the original statement. The Authority declines to uphold this part of the complaint.

Standard 4 (balance)

[75]   Standard 4 requires that balance be provided when controversial issues of public importance are discussed. To the extent that these items discussed a controversial issue of public importance, the Authority considers that the complainant’s concerns about balance have already been addressed appropriately in its consideration of accuracy and fairness above. Accordingly, the Authority subsumes this part of the complaint into its consideration of Standards 5 and 6.

For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of items on 3 News and Nightline on 24 August 2007 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[76]   Having upheld a complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties.

[77]   MSD submitted that the Authority should order TVWorks to broadcast a statement summarising the decision, and apologising to Mr Cowley. It asked that the statement be broadcast on both 3 News and Nightline, at approximately the same time as the original items were aired. The complainant argued that the items had a negative impact on the Ministry’s reputation, and did not provide viewers with a fair reflection of Mr Cowley’s ability as a professional facilitator.

[78]   TVWorks submitted that the publication of the decision was sufficient as it would be reported widely across other media. It said that there was no evidence that public confidence in the Ministry had been eroded as a result of the items, or of harm to Mr Cowley. It argued that the Authority should not order an apology to Mr Cowley without allowing TVWorks an opportunity to discuss the decision and the item with him.

[79]   MSD noted that Mr Cowley had been aware of the complaint and submitted that it would not be inappropriate for the Authority to order TVWorks to apologise to him.

[80]   Having considered the parties’ submissions, the Authority declines to order TVWorks to broadcast a statement summarising the decision. In the Authority’s view, due to the particular facts of this complaint and the nature of the inaccuracy, any statement would probably serve only to confuse viewers. However, it trusts that TVWorks will draw the decision to the attention of its news staff.

[81]   Costs to the Crown are imposed to mark the Authority’s disapproval of a serious departure from broadcasting standards. Taking into account all the circumstances of this case, including the fact that it has upheld breaches of two standards, the Authority considers that such an award is warranted on this occasion. It concludes that TVWorks should pay costs to the Crown in the amount of $2,500.

Bill of Rights

[82]   The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching its determination and in making the above order. The Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act’s requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

Order

Pursuant to section 16(4) of the Broadcasting Act 1989, the Authority orders TVWorks Ltd to pay to the Crown costs in the amount of $2,500, within one month of the date of this decision.

The order for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Joanne Morris
Chair
25 June 2008

Appendix

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

1.            Ministry of Social Development’s formal complaint – 20 September 2007
2.           TVWorks’ decision on the formal complaint – 19 October 2007
3.           Ministry of Social Development’s referral to the Authority – 15 November 2007
4.           TVWorks’ response to the Authority – 22 December 2007
5.           TVWorks’ responses to the Authority’s request for further information – 3 and 4 March 2008
6.           Ministry of Social Development’s submissions on orders – 9 May 2008
7.           TVWorks’ submissions on orders – 5 June 2008
8.           Ministry of Social Development’s further submissions – 11 June 2008