BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
The Breeze and Coromandel Gold FM News – items canvassed allegations against TCDC mayoral candidate with regard to distributing an email he received from TCDC CEO – contained terms “doctored”, “doctoring” and “falsify” – allegedly in breach of accuracy and fairness standards

Findings
Standard 5 (accuracy) – terms distinguishable as opinion of Mr Minogue’s political rivals – exempt from accuracy under guideline 5a – not upheld

Standard 6 (fairness) – Mr Minogue given an adequate opportunity to respond – treated fairly – not upheld

This headnote does not form part of the decision. 

Broadcasts

[1]   News items broadcast simultaneously on The Breeze and Coromandel Gold FM on the mornings of 16 and 17 September 2010, canvassed allegations against Thames-Coromandel District Council (TCDC) mayoral candidate Dal Minogue, with regard to distributing an email he received from the CEO of the TCDC, Steve Ruru.

[2]   During the first news item, broadcast on 16 September, the news reader explained the allegations as follows:

An email circulated by mayoral candidate Dal Minogue at the ‘Meet the Candidates’ meeting in Whitianga on Sunday is now being questioned, along with his integrity, by Mercury Bay board chairman Murray McLean. Mr McLean says that the man who’s claiming that everything should be open and upfront and honest, doctored an email answer concerning the council’s liability over the sports fields and Whitianga waterways from TCDC chief executive Steve Ruru for public consumption.

[3]   The second news item, broadcast later that morning, included a recording of Mr Minogue speaking at the Whitianga meeting, in which he said, “As your councillor for the past six years I have always judged every issue on its merits and then made an informed, honest decision based on the facts.” The news reader commented:

It’s the honesty part that Mercury Bay board chairman Murray McLean is challenging mayoral aspirant Dal Minogue to front up and explain. Councillor Minogue has been accused of doctoring and then distributing an email response from the TCDC chief executive officer... Mr McLean says it’s not so much the content but it’s the fact that it was doctored and it didn’t contain all the facts and was then made available to the public.

[4]   Two further news items were broadcast on 17 September. The first item reiterated that Murray McLean had “questioned the candidate’s integrity and honesty” over the email, which had “two paragraphs not included in the handout that were contained within the original [document]”. The bulletins included the following references to, and excerpts from, an interview with Mr Minogue:

• “... In a radio interview yesterday morning Mr Minogue says that it’s election time and a few people like Mercury Bay community board chairman, Murray McLean, are becoming excited.” (news reader)
• “... Mr Minogue says that the email in question was in regards to the deliberate misinformation from the board chairman, Mr McLean, and defended his actions of only releasing a part of the CEO’s response.” (news reader)
• “So what I have done is release the first part of Mr Ruru’s email in order for people to see that Mr McLean has in fact been lying to them. Now, the whole email wasn’t released because of the fact that the rest of it was irrelevant to the main point which is in the first paragraph.” (Minogue)
• “...TCDC mayoral candidate and councillor Dal Minogue calls claims that he is dishonest ridiculous... Mr Minogue claims in his press release that the remainder of the document was irrelevant.” (news reader)
• “Absolutely not, in fact if you read the email that I released there were ellipses at the end of it to show that there was more...” (Minogue)
• “Mr Minogue says that the release of the email was done because both this station and Whitianga’s ‘Informer’ publication had not reported the full facts of the matter after he had sent both media the full email.” (news reader)

[5]   Comments from Mr Minogue’s political opponents, Glen Leech and Murray McLean, criticising him for releasing only part of the email, were included in the news items, for example:

• “I never in my political career have ever heard of an elected member doctoring – and that’s what he did – an email put out by a CEO or a senior member of staff.” (McLean, 16 September, item 2)
• “I don’t see why anybody in this capacity should be able to... or be that naive that he would think that no one would pick it up. You don’t falsify a document that was sent to you by a CEO of a district council.” (Leech, 17 September, item 2).

Complaint

[6]   Dal Minogue made a formal complaint to RadioWorks Ltd, the broadcaster, alleging that the news items breached Standards 5 (accuracy) and 6 (fairness).

[7]   The complainant argued that the items’ use of the terms “doctoring”, “altering” and “falsifying” was inaccurate as it created the impression that he had fraudulently changed the words written by the CEO in his email. He said that the broadcaster repeatedly ignored his requests to correct material errors of fact, and failed to acknowledge that the email released was a verbatim transcript of part of an email sent to him by the CEO, the purpose being to clarify a false impression that had been allowed to develop regarding a “phony” $20 million cash liability against the council. Further, he noted that MediaWorks, through the news reader, had been sent a full transcript of the email on 30 August, but had chosen not to divulge its contents even though the issue was of “major significance”. The complainant concluded that the broadcaster failed to make reasonable efforts to ensure a professional standard of accuracy in reporting the matter.

[8]   Mr Minogue considered that he was treated unfairly in the news items. He argued that RadioWorks had ignored his attempts to have the items corrected and following that had “allowed even worse, unsubstantiated allegations to be made”. He reiterated that the broadcaster had failed to acknowledge that it was in receipt of the full email document two weeks before the Whitianga meeting, which he said placed it firmly in the public domain and showed that he was not trying to hide or conceal anything.

[9]   The complainant said that RadioWorks’ failure to adhere to standards of accuracy and fairness had caused him enormous political damage as a councillor by reducing his chances in the mayoral election, financial loss, damage to his reputation as a man of honesty and integrity, and consequently damage to his future employment prospects.

[10]   Mr Minogue requested an apology from RadioWorks by way of a broadcast statement acknowledging that the news items were inaccurate, making it clear that he had released a verbatim extract from the email with ellipses and had previously provided the broadcaster with a copy of the entire email. He also asked RadioWorks to provide him with a refund of $2,038.50 to reflect the amount spent with MediaWorks in relation to his election campaign, which he considered had been rendered “completely useless” due to adverse publicity resulting from the broadcasts.

[11]   The complainant also made arguments with regard to alleged breaches of Standards E2 (distinguishing factual information from opinion or advocacy) and E3 (denigration) of the Election Programmes Code of Broadcasting Practice.

Standards

[12]   Standards 5 and 6 and guideline 5a of the Radio Code of Broadcasting Practice are relevant to the determination of this complaint. These provide:

Standard 5 Accuracy

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/or
• does not mislead.

Guideline 5a   

The accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Broadcaster’s Response to the Complainant

[13]   The broadcaster argued that neither The Breeze nor Coromandel Gold FM claimed that Mr Minogue had “doctored’ or “falsified” the email. Rather, it said, the term “doctored” was used by the news reader in factual statements directly reporting the opinions of Mr Minogue’s political rivals, while “falsify” was used directly by Mr Leech to express his personal opinion. In the broadcaster’s view, canvassing the opinions of Mr Minogue’s political opponents was unlikely to have misled listeners. The term “altered” was not used in any of the broadcasts, it said.

[14]   RadioWorks noted that a lengthy interview with the complainant was broadcast on 17 September, in which the accusations were put to him and he responded:

So what I have done is release the first part of Mr Ruru’s email in order for people to see that Mr McLean has in fact been lying to them. Now, the whole email wasn’t released because of the fact that the rest of it was irrelevant to the main point, which is in the first paragraph.

[15]   The broadcaster did not consider that the news items reported inaccurate statements of fact or that listeners would have been misled. Accordingly, it declined to uphold the Standard 5 complaint.

[16]   Turning to Standard 6, RadioWorks noted that during the 17 September broadcasts, the news reader made the following statements:

• “The email regarding any liability on the council had two paragraphs not included in the handout that were contained within the original one. Mr Minogue says that the email in question was in regards to the deliberate misinformation from the board chairman, Mr McLean, and defended his actions of only releasing a part of the CEO’s response.”
• “In a press statement issued yesterday and also in a radio interview he admitted to releasing part of a copy of an email that contains some of an answer from TCDC chief executive, Steve Ruru, to the public regarding the council’s risk over the waterways reserve contribution. Mr Minogue claims in his press release that the remainder of the document was irrelevant.”

[17]    In the broadcaster’s view, these statements gave listeners a clear indication that the email distributed by the complainant was missing two paragraphs which implied that the rest of the email was not altered in any way.

[18]    RadioWorks argued that the second item broadcast on 17 September explicitly acknowledged that Mr Minogue had sent the full email to The Breeze and another media outlet, as the news reader stated:

Mr Minogue says that the release of the email was done because both this station and Whitianga’s ‘Informer’ publication had not reported the full facts over the matter after he had sent both media the full email.

[19]   For these reasons, the broadcaster considered that Mr Minogue’s concerns had been addressed within the period of current interest.

[20]   Overall, RadioWorks was satisfied that the complainant had been treated fairly. It emphasised that he was given an opportunity to respond to the accusations in two interviews and said that, where possible, his views were included in the news broadcasts. Accordingly, it declined to uphold the Standard 6 complaint.

Referral to the Authority

[21]   Dissatisfied with the broadcaster’s response, Mr Minogue referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. The complainant maintained that the news items were inaccurate and unfair.

[22]   Mr Minogue disputed RadioWorks’ contention that there was no reference to “altered” in the news items. He referred to emails that he had sent to the broadcaster in which he asserted that only a “selected example” of broadcasts had been provided and requested all news items referring to the matter on 15, 16 and 17 September.

[23]   The complainant maintained that it was inaccurate to report that he had “doctored” and “falsified” the email as this suggested that he had acted fraudulently. He considered that “the accurate report of someone’s opinion or comment could not be equated with the factual accuracy of their comments”. He argued that RadioWorks “promoted these notions” and clearly chose to broadcast and promote inaccurate statements of fact.

[24]   Mr Minogue reiterated that he had put ellipses at the end of the email to indicate that it was part of a longer document, and had provided the email in its entirety to The Breeze and Coromandel Gold FM on 30 August, therefore placing it in the public domain several days before the news items were broadcast.

[25]   Turning to fairness, the complainant said that, although some balancing information was provided in the 17 September news items, he was concerned about the “wider context” of the broadcasts. He considered that the items questioned his integrity and portrayed him as a “leaker” of information, despite there being no evidence to support this claim apart from the fact that he had released part of an email sent to him by the CEO.

[26]   Mr Minogue disputed the broadcaster’s assertion that he was given an opportunity to respond to the allegations. He referred to the 17 September broadcast which stated that, in a press release, he had “admitted” to releasing part of a copy of the CEO’s email. The complainant argued that the use of such language represented the news reader putting his “spin” on the story, rather than an opportunity to respond. He said that “while finally putting some of the truth across through my comments, [the 17 September broadcasts] came ‘after the horse had bolted’ the previous day.” In the complainant’s view, the contents of those items were “carefully couched” to allow fresh accusations from Mr Leech that he had “falsified” a document, to which he had no opportunity to respond.

[27]   The complainant noted that the news items were broadcast immediately after the date when voting papers for the local elections had been mailed out to the public, and maintained that he had suffered enormous political damage as a result. He reiterated that the broadcasts had negatively impacted on his political and financial positions, reputation and future employment prospects, and maintained that RadioWorks should be required to rectify this by taking the action sought in his original complaint.

Authority’s Determination

[28]   The members of the Authority have listened to a recording of the broadcasts complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Preliminary Matters

Election Programmes Code

[29]   Mr Minogue made arguments with regard to alleged breaches of Standards E2 (distinguishing factual information from opinion or advocacy) and E3 (denigration) of the Election Programmes Code of Broadcasting Practice. We note that for the purposes of the Code an “election” is defined as a general election or by-election for the House of Representatives, and that local body elections are explicitly excluded. As the complaint related to the TCDC local body elections we find that the Election Programmes Code does not apply on this occasion.

Scope of complaint

[30]   The complainant asserted that his complaint related to all interviews and local news broadcasts on 15, 16 and 17 September, which exceeded those provided by the broadcaster. RadioWorks declined to investigate the interviews with other councillors on the basis that the complainant had not provided the times and dates of those broadcasts.

[31]   We note that it is the complainant’s responsibility to provide specific information with regard to the programme(s) complained about, and we therefore agree with the approach taken by the broadcaster on this occasion. In any event, we consider that the broadcasts provided are sufficient to enable the determination of this complaint.

Standard 5 (accuracy)

[32]   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.

[33]   The news items subject to complaint reported on allegations of impropriety against a mayoral candidate for the upcoming TCDC local body elections. They contained comment from a number of political figures who accused the complainant of doctoring and falsifying an email sent to him by the council’s CEO in order to strengthen his election campaign.  

[34]   The complainant argued that the items’ use of the terms “doctored”, “falsify” and “altered” in the news items was inaccurate as it created the impression that he had fraudulently changed the words written by the CEO in his email. He also argued that the news reader failed to mention that the email distributed was a verbatim transcript of part of the original email, and that he had sent the full email to the news reader at The Breeze on 30 August (two weeks before the “Meet the Candidates” meeting).

[35]   Dealing first with the term “altered”, we are satisfied that, having listened to recordings of the broadcasts, the term was not used in any of the news items and we therefore decline to uphold this part of the accuracy complaint.

[36]   Turning to consider the 16 September news items, we agree with RadioWorks that the terms “doctored” and “doctoring” were used by the news reader in statements directly reporting the opinions of Mr Minogue’s political rivals, and/or by his political rivals in extracts from interviews included in the broadcasts. The items contained the following statements:

• “Mr McLean says that the man who’s claiming that everything that should be open and upfront and honest, doctored an email answer concerning the council’s liability over the sports fields and Whitianga waterways from TCDC chief executive Steve Ruru for public consumption.” (news reader)
• “... Counsellor Minogue has been accused of doctoring and then distributing an email response from the TCDC chief executive officer... Mr Mclean says it’s not so much the content but it’s the fact that it was doctored and it didn’t contain all the facts and was then made available to the public.” (news reader)
• “I never in my political career have ever heard of an elected member doctoring – and that’s what he did – an email put out by a CEO or a senior member of staff.” (McLean)

[37]   We note that the news reader’s statements were qualified with precursors such as “says”, “claims” and “accused” to indicate that the allegations constituted opinion, rather than established or proven facts. On this basis, we find that the comments were exempt from standards of accuracy under guideline 5a which states that the standard does not apply to comments which are clearly distinguishable as opinion.

[38]   The terms “doctored” and “doctoring” were not used in the 17 September news items. The term “falsify” was used by the complainant’s political opponent Mr Leech to express his opinion as follows:

I don’t see why anybody in this capacity should be able to... or be that naive that he would think that no one would pick it up. You don’t falsify a document that was sent to you by a CEO of a district council.

[39]   In any event, the 17 September news items contained a comprehensive summary of the complainant’s viewpoint, in the form of references to and extracts from an interview that was conducted with Mr Minogue the previous day (see paragraph [4]). In these circumstances, we consider that the impression created for listeners was that Mr Minogue’s opponents were claiming that he had acted fraudulently by releasing only part of the email, while he was defending his actions on the basis that the rest of the document was irrelevant. We do not consider that the 17 September news items would have misled listeners.

[40]   Accordingly, we decline to uphold the complaint that the news items breached Standard 5.

Standard 6 (fairness)

[41]   Standard 6 requires broadcasters to deal fairly with any person or organisation taking part or referred to in programmes.

[42]   The complainant’s primary concern under this standard was that he was not given a fair opportunity to respond to the allegations.

[43]   As noted above under our consideration of accuracy, the allegations regarding the complainant’s distribution of the email, through use of the terms “doctored”, “doctoring” and “falsify”, were clearly couched as the opinions of Mr Minogue’s political rivals.

[44]   In assessing whether use of the terms was unfair to the complainant, we have taken into account the robust political environment in which the comments were made. In our view, the comments were relevant to the complainant’s suitability as a councillor and mayoral candidate in the upcoming local body elections, and in part, responded to allegations that he had made against other council members, for example, that the email was released to show that Mr McLean had been “lying” to the public. In these circumstances we consider that Mr Minogue should have expected robust criticism and that use of the terms to express the opinions of his political rivals in the 16 and 17 September news items was not unfair to him.

[45]   Further, we note that the 17 September news items contained the following statements:

• “So what I have done is release the first part of Mr Ruru’s email in order for people to see that Mr McLean has in fact been lying to them. Now, the whole email wasn’t released because of the fact that the rest of it was irrelevant to the main point which is in the first paragraph.” (Minogue)
• “...TCDC mayoral candidate and Councillor Dal Minogue calls claims that he is dishonest as ridiculous... Mr Minogue claims in his press release that the remainder of the document was irrelevant.” (news reader)
• “Absolutely not, in fact if you read the email that I released there were ellipses at the end of it to show that there was more...” (Minogue)

[46]   In our view, the interviews with Mr Minogue provided him with ample opportunity to respond to the allegations that were being made against him (see paragraph [39]), and his viewpoint with regard to the email was adequately presented and publicly disseminated in the 17 September news items.

[47]   In all the circumstances, we are unable to find that Mr Minogue was treated unfairly, and we therefore decline to uphold the complaint that the news items breached Standard 6.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
7 June 2011

Appendix

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

1    Dal Minogue’s formal complaint – 14 October 2010

2   RadioWorks’ response to the formal complaint – 11 February 2011

3   Mr Minogue’s referral to the Authority – 9 March 2011

4   RadioWorks’ response to the Authority – 20 April 2011