BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

On an episode of Seven Sharp, the hosts discussed the Trans-Pacific Partnership (TPP) and interviewed a law professor. The professor explained the contrast between the dispute resolution mechanisms of the TPP and those of the World Trade Organisation (WTO). After the interview, one host asked the other, ‘So these foreign countries could potentially hold the government for ransom down the track? Surely it goes both ways; surely we’ll have some control’. The other host replied, ‘Of course it does. Who did we take to the WTO? We’ve taken a number of countries to the WTO...’ The Authority did not uphold a complaint that this was misleading in that it suggested that TPP disputes would go through a similar process as the WTO, when in fact this was not the case for investor-state disputes. The host’s statement was not technically inaccurate as it appeared to refer to state-to-state disputes rather than investor-state disputes. Additionally, the professor had already articulated the key concepts well, so when viewed as a whole the item would not have misled viewers.

Not Upheld: Accuracy

Introduction

[1]  On an episode of Seven Sharp, the hosts, Mike Hosking and Toni Street, discussed the Trans-Pacific Partnership (TPP) and interviewed law professor Jane Kelsey. The interview included the following exchange:

Dr Kelsey: The Minister of Trade admitted... that foreign investors could sue the New Zealand Government for introducing new laws, for example around issues like mining, and sue us in offshore tribunals...

Mr Hosking: ...[I]s [the TPP] any different to a thing like the [World Trade Organisation]?... It’s like the WTO, you go to adjudicators who make decisions on our behalf – none of this is new.

Dr Kelsey: Oh this is nothing like the [WTO]. [WTO] is states that bring cases against states... there’s an appeal process, there’s a kind of system of precedent – none of that operates in these investment tribunals... No appeal structure, no conflict of interest rules; it’s a real kind of kangaroo court system.

[2]  After the interview, the hosts discussed the TPP as follows:

Ms Street: So these foreign countries could potentially hold the government for ransom down the track? Surely it goes both ways, surely we’ll have some control.

Mr Hosking: Of course it does. Who did we take to the WTO? We’ve taken a number of countries to the WTO...

Ms Street: So it does give us the power to...

Mr Hosking: Of course it does, that’s what free trade is – it’s back and forth.

[3]  Mr Monasterio complained that for Mr Hosking to ‘suggest to viewers at the end of the programme that regardless of what [Dr] Kelsey had said, that [TPP] complaints would go through a [WTO] State to State process, was both inaccurate and misleading’.

[4]  The issue is whether the broadcast breached the accuracy standard of the Free-to-Air Television Code of Broadcasting Practice.

[5]  The item was broadcast on 28 July 2015 on TV ONE. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Was the broadcast inaccurate or misleading?

[6]  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.¹

[7]  Mr Monasterio submitted that Dr Kelsey had made it clear that ‘the dispute procedure in the [TPP] is about foreign investors and is not a State to State dispute’, but that Mr Hosking had responded to Ms Street’s questions ‘as if cases would be taken to the WTO, which is false’ because ‘disputes would be settled in offshore tribunals where foreign investors can [sue] nation states but nation states cannot sue foreign investors’. He submitted that the TPP ‘is in the national interest and of national significance’, but that ‘Mr Hosking’s dismissive tone leaves the viewer the impression that the whole matter is a storm in a teacup that will be sorted out by the WTO’.

[8]  TVNZ argued that Mr Hosking’s comment was ‘not meant to infer that the WTO is the body which will be adjudicating complaints under the TPP, but rather [meant] that just as New Zealand has taken other parties to the WTO concerning other [free trade] deals, we will be able to do the same under the TPP with access to the investment tribunals to resolve disputes’. It also submitted that the comment was Mr Hosking’s ‘analysis of the situation as [he] understood it’.

[9]  Guideline 5a says that the accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion. To consider Mr Hosking’s comments under the accuracy standard we must first determine that they do not fall into this category.

[10]  On one hand, Mr Hosking’s comments were couched in somewhat loose language, for example, ‘it’s back and forth’. On the other hand, his tone and language were authoritative, and Ms Street seemed to defer to him for answers on how New Zealand’s access to international dispute resolution processes worked under the TPP. Mr Hosking had already mistakenly stated in the interview with Dr Kelsey (before she corrected him) that the TPP investor-state dispute settlement process (ISDS) was ‘like the WTO’. The hosts’ exchange was not during the Seven Sharp ‘final word’ segment, which typically features one of the hosts giving their opinion or analysis of the topic under discussion during that episode, and was not couched in evaluative terms, so viewers may not have understood his statements to be his opinion. On balance, in our view Mr Hosking’s comments were not ‘clearly distinguishable’ as analysis, comment or opinion. Therefore the accuracy standard is applicable.

[11] We note at the outset that at the date of the broadcast the text of the TPP had not yet been finalised or made public (negotiations concluded 5 October), so many comments around the TPP at this time would have been conjecture or based on incomplete information. The broadcast acknowledged this, so this was able to be taken into account by viewers when assessing the validity of Mr Hosking’s comments.

[12]  It appears to us that Mr Hosking’s misunderstanding of the distinction between state-to-state dispute resolution (such as the WTO mechanisms) and ISDS may have persisted even after Dr Kelsey explained it during the interview. However, Ms Street had asked about ‘foreign countries’ holding New Zealand ‘for ransom’ and whether it ‘goes both ways’. The TPP does apparently allow for disputes between its parties (namely, states) to be settled by the forum of the parties’ choice, which can include the WTO.²

[13]  In this sense, then, it appears that Mr Hosking was correct in saying that New Zealand could take ‘foreign countries’ to the WTO as it has in the past. If Ms Street had been talking about investor disputes, Mr Hosking’s comments may well have been misleading, as New Zealand as a state does not have the right under the TPP to take investors to arbitration.³ It is possible that Ms Street was mistaken in asking about ‘foreign countries’, as much of the controversy about the TPP is about foreign investors rather than other states, but nevertheless this is what Mr Hosking was responding to.

[14] Our view overall is that, while the discussion of the hosts was untidy, the item was not misleading when taken as a whole. Dr Kelsey came across well and clearly articulated the key features of the TPP, including the dispute resolution processes. This would have comprehensively mitigated any potentially misleading comments made by the hosts.

[15]  Accordingly we do not uphold the accuracy complaint.

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

Signed for and on behalf of the Authority

Peter Radich

Chair

1 March 2016

Appendix

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

1      Erik Monasterio’s formal complaint – 17 August 2015

2      TVNZ’s response to the complaint – 11 September 2015

3      Mr Monasterio’s referral to the Authority – 19 September 2015

4      TVNZ’s response to the Authority – 8 January 2016

¹Bush and Television New Zealand Ltd, Decision No. 2010-036

² Trans-Pacific Partnership, Article 28.4 (https://www.mfat.govt.nz/assets/_securedfiles/Trans-Pacific-Partnership/Text/28.-Dispute-Settlement-Chapter.pdf) 

³ Trans-Pacific Partnership, Article 9; See also ‘Trans-Pacific Partnership: Investment and ISDS’: https://www.tpp.mfat.govt.nz/assets/docs/TPP_factsheet_Investment.pdf