BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Pukeroa Oruawhata Trust has a regular broadcasting programme on Te Arawa FM, which is paid for by the Trust and enables the Trust to ‘share its views on issues affecting the Trust with its beneficiaries’. The programme featured an interview with the Trust’s deputy chairman, in which he made a number of negative comments about Te Komiti Nui o Ngāti Whakaue, Ngāti Whakaue Tribal Lands Incorporation and its former chairman. The Authority upheld a complaint that the programme was unbalanced, as it contained a discussion of issues that were controversial and of public importance to Te Arawa’s audience, but did not present any significant countering viewpoints to those expressed by the interviewee. The Authority also upheld the complaint that the former chairman of NWTLI, the complainant, was treated unfairly. While the former chairman was not expressly named, listeners would have realised who was being spoken about, and he ought to have been given a fair opportunity to comment in response to the criticism of him. The comments which were also alleged to be inaccurate were clearly statements of analysis, comment or opinion. Accordingly, the accuracy standard did not apply.

Upheld: Controversial Issues, Fairness; Not Upheld: Accuracy

No Order

Introduction

[1]  The Pukeroa Oruawhata Trust (the Trust) has a regular broadcasting programme on Te Arawa FM, which is paid for by the the Trust and enables the Trust to ‘share its views on issues affecting the trust with its beneficiaries’. On 14 October 2015 the programme featured an interview with Alec Wilson, Deputy Chairman of the Trust. Mr Wilson made a number of negative comments about Te Komiti Nui o Ngāti Whakaue (TKN), Ngāti Whakaue Tribal Lands Incorporation (NWTLI) and its former chairman.

[2]  Hamuera Mitchell, the former chairman of NWTLI and currently a trustee of, and lead negotiator for, TKN, complained that the broadcast contained ‘false and malicious statements’ about him and was unbalanced.

[3]  The issue is whether the broadcast breached the controversial issues, fairness and accuracy standards of the Radio Code of Broadcasting Practice.

[4]  The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

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

[5]  The balance standard (Standard 4) states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest. The standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.¹

[6]  Mr Mitchell argued that no countering viewpoint was provided on matters of public importance to the people of Ngāti Whakaue, and seemed to suggest that it was unbalanced for the host to refer to the Trust’s project developments and to the Trust chairman Malcolm Short’s receipt of the award of Rotorua Business of the Year:

...[W]e were talking about how Uncle Malcom Short, he received an award... I’ve got to take my hat off to him, because he’s been in business a long time... it’s a well-deserved prize.

[7]  Te Reo Irirangi o Te Arawa (Te Arawa) argued that the broadcast was clearly presenting ‘Pukeroa’s stance’ and that the interview was ‘clearly held out to be [Mr Wilson’s] own analysis and opinion of the subjects discussed’. It also said the reference to the upcoming Ngāti Whakaue hui meant that the issues ‘would be tabled and discussed by all relevant parties’.

[8]  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’.²

[9]  Therefore, the primary issues for our determination in relation to the balance standard are:

• Was Pukeroa Oruawhata a news, current affairs or factual programme to which the standard applied?
• Did the programme discuss a controversial issue of public importance?
• If so, did Te Arawa make reasonable efforts or give reasonable opportunities to present significant points of view on that issue, either within the programme or in other programmes within the period of current interest?

Was Pukeroa Oruawhata a news, current affairs or factual programme?

[10]  Although the Pukeroa Oruawhata programme was presented as the Trust’s views and opinions, it also purported to be a discussion of factual events and topical issues in the Ngāti Whakaue community. We are therefore satisfied that the programme fell within the category of news, current affairs and factual programming, to which the balance standard applies.

Did the programme discuss a controversial issue of public importance?

[11]  The next question, then, is whether this particular episode of the Pukeroa Oruawhata programme discussed a controversial issue of public importance which required balance to be provided.

[12]  The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.³ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁴

[13]  It is our understanding that there is a long-standing dispute between the Trust and TKN over a variety of matters, including Ngāti Whakaue land and funds and which entity is mandated to negotiate the Ngāti Whakaue Treaty settlement. Issues around the Ngāti Whakaue Treaty settlement and the general governance of Ngāti Whakaue were discussed extensively in the item. From the material before us, it appears that these issues were controversial and of public importance to the community that makes up Te Arawa’s audience. We therefore find that Te Arawa was required to make reasonable efforts, or give reasonable opportunities, to present significant alternative viewpoints on these issues.

[14]  However, we do not consider that the references to the Trust chairman Malcolm Short winning an award or to the Trust project developments amounted to a discussion of a controversial issue of public importance. It does not appear to us that this award or the projects were controversial or any more than brief references to factual events. Therefore balance was not required on these issues.

Did Te Arawa make reasonable efforts or give reasonable opportunities to present significant points of view on the controversial issues discussed, either within the programme or in other programmes within the period of current interest?

[15]  We have listened carefully to the programme and also read a transcript, and we are satisfied that the programme itself did not contain any acknowledgment of alternative viewpoints to those expressed by Mr Wilson. In our view the programme host essentially allowed Mr Wilson free rein to espouse his opinions (indeed, this is the point of the programme) and did not use any methods which could have provided some semblance of balance.

[16]  Acknowledgment of opposing views does not necessarily have to come from an interviewee with a different opinion – the interviewer could have presented an alternative viewpoint by acting as ‘devil’s advocate’ and challenging Mr Wilson’s assertions, or alerting listeners to the existence of other perspectives.⁵

[17]  Additionally, the standard allows a broadcaster to provide balance within the period of current interest, if not within the broadcast itself. We have not been pointed to any other material broadcast on Te Arawa FM which contained significant alternative viewpoints to those expressed in the Pukeroa Oruawhata programme subject to complaint. Both Mr Wilson and the host did make reference to an upcoming hui, and Te Arawa considered that this hui would be an opportunity for the relevant issues featured in the Pukeroa Oruawhata programme to be canvassed and discussed:

Host: And on Sunday I’m sure it [the issue of claim settlement] will be tabled at the meeting.

Mr Wilson: Oh, it will be tabled at the meeting.

[18]  We are not persuaded that such a hui could be relied on as providing balance. When broadcasting a discussion of an issue that is controversial and of public importance, the wording of the standard is clear that it is the responsibility of the broadcaster – here Te Arawa – to present significant alternative viewpoints, either within the broadcast or within the period of current interest. Te Arawa was not likely to be in a position to control the tenor and content of the discussion at the hui, and where the participants of the hui may be different to the audience of the broadcast, this would not be sufficient for the purposes of the standard. If alternative viewpoints were indeed raised at the hui, and the content of the hui or the views discussed at the hui were subsequently broadcast in some form on Te Arawa FM, then we may reach a different conclusion.

[19]  Therefore, we find that Te Arawa did not make reasonable efforts or give reasonable opportunities to present significant points of view on the issues discussed, either within the programme or in other programmes within the period of current interest.

Other matter

[20]  Te Arawa has seemed to suggest that, because the Trust segment is paid for by the Trust and is clear that it expresses the opinions of the Trust, it was not required to be balanced. We do not agree. Opinion programmes are not exempt from the requirement to be balanced, if they discuss controversial issues of public importance.

[21]  While we acknowledge it may be more difficult to provide balance in a programme segment that is paid for by a particular group, such programmes are still subject to broadcasting standards. If broadcasters choose to open up their airwaves to paid programme content, they must still be mindful of how they can ensure standards are maintained.

Conclusion on balance

[22]  In conclusion, we do not consider that this broadcast enabled Te Arawa’s listeners to arrive at an informed and reasoned opinion about issues around the Ngāti Whakaue Treaty settlement and the general governance of Ngāti Whakaue. We are satisfied that upholding the Standard 4 complaint would not unreasonably restrict the broadcaster’s right to freedom of expression because requiring the presentation of an alternative viewpoint on a matter of public interest to the community promotes, rather than hinders, the free flow of information and free speech principles. Accordingly, we uphold the complaint under Standard 4.

Was Mr Mitchell treated unfairly?

[23]  The fairness standard (Standard 6) 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.⁶

[24]  The parts of the broadcast that Mr Mitchell appears to take issue with are the following comments from Mr Wilson:

•  ‘When I look at the cost they’ve [TKN] gone through, I worked out they’ve gone well over half a million in costs’.
•  ‘...[W]hen the incorporation was on its knees, he [the former chairman] [had] a brilliant idea to start another township out on Wharenui. And he spent hundreds of thousands of the incorporation’s money doing that. Hence, he brought the incorporation to his knees, he got voted off, and now he’s attacking us from another direction’.

[25]  Mr Mitchell argued that the item stated or implied the following ‘false allegations’:

•  that TKN had improperly paid Mr Mitchell and the other negotiators $500,000
•  that Mr Mitchell in his role at NWTLI had spent ‘hundreds of thousands of dollars to build a new township’
•  that Mr Mitchell was ‘sacked’ by NWTLI.

[26]  He said these comments were ‘defamatory’ and that he should have been given an opportunity to respond to these allegations.

[27]  Te Arawa argued there was ‘no basis for this claim’, and said that Mr Mitchell was free to ‘ring in’ and express his views, but did not do so.

[28]  The fairness standard applies only to individuals or organisations taking part or referred to in a broadcast. To find that Mr Mitchell was treated unfairly, we first have to find that he was ‘referred to’ through mentions of the former chairman of NWTLI and of NWTLI and TKN generally (given he did not take part). We do not think general references to NWTLI or TKN could reasonably be said to amount to a reference to Mr Mitchell as an individual. However, there were numerous references to, for example, ‘one of the negotiators’ for TKN, ‘the chairman of the day’ (referring to NWTLI) and ‘that same chairman’. One such statement was:

...[W]hen the incorporation was on its knees, he [the former chairman] [had] a brilliant idea to start another township out on Wharenui. And he spent hundreds of thousands of the incorporation’s money doing that. Hence, he brought the incorporation to its knees, he got voted off, and now he’s attacking us from another direction.

[29]  We think that Te Arawa’s audience could have identified these comments as referring to Mr Mitchell, and in our view overall they did give a negative impression of him. It was suggested, among other things, that he had misspent NWTLI’s money and contributed to its downfall.

[30]  It is usually the case that somebody about whom something adverse is to be said should be given a fair and reasonable opportunity to comment. The gravity of the unfairness if this opportunity is not given will vary according to the particular circumstances of the case.⁷

[31]  The Authority requested further information from the broadcaster on this point, asking in particular whether:

•  Te Arawa contacted Mr Mitchell about the 14 October broadcast, and/or interviewed Mr Mitchell on or around the date of the broadcast
•  Mr Mitchell had any other opportunity to give his views on the issues discussed in the programme
•  Te Arawa presented Mr Mitchell’s position on air regarding the issues discussed, at any time on or around the date of the broadcast
•  Te Arawa invited or presented any other countering viewpoints to those expressed by Mr Wilson in the 14 October broadcast, at any  time on or around the date of the broadcast.

[32]  The broadcaster replied:

Te Arawa FM has not contacted nor have we been contacted by Mr Mitchell about the 14 October broadcast other than the correspondence regarding the original complaint...

As already stated, the weekly Pukeroa Oruawhata Trust paid programme in question is an open forum with the phone lines open to all who wish to comment or state an opinion on any issue that may be broadcasted. This is clearly [broadcast]. We, Te Arawa FM, do not dictate what the subject matter of the show should be to our clients however we ensure the lines are open (talk show) to enable other opinions to be heard.

Mr Mitchell’s position regarding the issues discussed [was] not aired as [it was] not known at the time.

[33]  The broadcaster appears to accept that no opportunity was afforded to Mr Mitchell to respond to the criticism of him that was broadcast. As we discussed under balance, the fact that this is a programme paid for by the Trust does not absolve the broadcaster from ensuring that standards are adhered to. Nor does the fact that listeners are able to phone into the programme satisfy the broadcaster’s obligation to treat individuals referred to in the programme fairly. We accept that Mr Mitchell formerly held an elected position and could reasonably have expected to attract some comment, including negative comment, in relation to his performance in that role. Nevertheless, the comments in this broadcast did have the potential to affect his reputation, including outside of his role as chairman given he no longer assumed that role. He was not informed or given a reasonable opportunity to respond or defend himself either at the time of the broadcast or in proximity to the broadcast. Basic principles of fairness required that this occurred. For these reasons, we uphold the complaint that Mr Mitchell was treated unfairly.

[34]  We note that had Te Arawa provided the necessary balance to the discussion (see paragraphs [5] to [22]), this would likely have mitigated the potential unfairness to Mr Mitchell.

Was the broadcast inaccurate or misleading?

[35]  The accuracy standard (Standard 5) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.⁸

[36]  Mr Mitchell argued that the allegations listed at paragraph [25] above and the following comments were ‘entirely false and misleading and construed to create mischief ahead of [an upcoming Ngāti Whakaue] hui’:

•  ‘Pukeroa is not very happy with Komiti Nui. Komiti Nui is claiming the endowment lands. Komiti Nui is claiming Arikikapakapa lands...’
•  ‘I’m not happy with it. When you start claiming land that they know very well is part of Pukeroa’s legacy... they will not get our support’.

[37]  Mr Mitchell argued that these comments suggested that Trust land was stolen by TKN negotiators.

[38]  Te Arawa argued that the views expressed were ‘not the views of the station’, which was ‘expressly noted at the commencement of each broadcast’.

[39]  Guideline 5a to the accuracy standard says that the standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion. In our view, the statements from Mr Wilson complained about all fell within this category. They contained evaluative words such as ‘I’m not happy with it’ and ‘when I look at...’, which signalled to listeners that the statements were Mr Wilson’s opinions. Additionally, at the commencement of the programme, the following statement was read out, which signposted to listeners that the programme that followed would contain comment and opinion:

The views and opinions expressed in this programme are not necessarily shared by Radio Te Arawa. [our emphasis]

[40]  Therefore we do not consider that the accuracy standard was applicable to the statements complained about, and accordingly do not uphold this part of the complaint.

For the above reasons the Authority upholds the complaint that the broadcast by Te Reo Irirangi o Te Arawa of Pukeroa Oruawhata on 14 October 2015 breached Standard 4 and Standard 6 of the Radio Code of Broadcasting Practice.

[41]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. The publication of our decision is sufficient in our view to publicly notify and remedy the breach of standards. The decision also provides guidance to the broadcaster around the importance of ensuring that standards are maintained even when a programme slot is paid for by a third party.

Signed for and on behalf of the Authority

Peter Radich

Chair
29 June 2016

Appendix

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

1      Hamuera Mitchell’s formal complaint – 20 October 2015

2      Te Reo Irirangi O Te Arawa Trust’s response to the complaint – 27 October 2015

3      Mr Mitchell’s further comments on formal complaint – 12 November 2015

4      Mr Mitchell’s referral to the Authority – 22 December 2015

5      Mr Mitchell’s further comments on referral – 11 January 2016

6      Te Arawa’s response to the Authority – 17 February 2016

7      Mr Mitchell’s final comments – 17 February 2016

8      Te Arawa’s final comments – 3 March 2016

9      Mr Mitchell’s response to the Authority’s request for further information – 7 March 2016

10    Te Arawa’s comments on Mr Mitchell’s response – 21 March 2016

11     Te Arawa’s response to the Authority’s request for further submissions – 24 May 2016

12     Mr Mitchell’s comments in response to Te Arawa’s further submissions – 25 and 27 May 2016

¹ Commerce Commission and TVWorks Ltd, Decision No. 2008-014

² For further discussion of these concepts see Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) and Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Radio (Broadcasting Standards Authority, June 2009)

³ Powell and CanWest TVWorks Ltd, Decision No. 2005-125

⁴ See, for example, Dewe and TVWorks Ltd, Decision No. 2008-076

⁵ See, for example, Bolot, Finlay and Gautier and Radio New Zealand Ltd, Decision No. 2013-008; Brooking and Television New Zealand Ltd, Decision No. 2009-012

⁶ Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁷ See, for example, HC and CT and Television New Zealand Ltd, Decision No. 2010-163

⁸ Bush and Television New Zealand Ltd, Decision No. 2010-036