BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld complaints that action taken by Radio New Zealand Ltd was insufficient, after the broadcaster upheld the complaints under the accuracy standard about a statement in a news bulletin that a recent ruling by the International Court of Justice had found Israel ‘not guilty of genocide.’ While the Authority agreed with the broadcaster’s decision to uphold the complaints, it found RNZ had taken sufficient steps in response to the complaints, by broadcasting an on-air correction within a reasonable period after the bulletin at issue, as well as posting a correction to its website. Other standards alleged to have been breached by the broadcast were found either not to apply or not to have been breached.

Not Upheld: Accuracy (Action Taken), Offensive and Disturbing Content, Children’s Interests, Promotion of Illegal or Antisocial Behaviour, Discrimination and Denigration, Balance, Fairness

The broadcast

[1]  The 10am news bulletin on RNZ National on 28 January 2024 reported on a recent finding by the International Court of Justice concerning the Israel-Hamas war. The item stated:

A Law Professor says the ruling by the International Court of Justice that found Israel not guilty of genocide still holds the country accountable for civilian deaths. The International Court of Justice has issued a provisional order for Israel to take all necessary steps to prevent acts of genocide in Gaza, but it did not demand an immediate ceasefire. University of Waikato Law Professor Al Gillespie says the ruling will bring more humanitarian aid to the conflict zone: ‘Even if genocide has not been found, international and humanitarian law still applies, that civilians have access to the necessities of life. And this tap has been turned on and off by Israel in the conflict so far. And so you’ll see much more humanitarian assistance going in.’

The complaints

[2]  Alexander Muir and Anna Knight complained that the broadcast breached the accuracy standard of the Code of Broadcasting Standards in New Zealand by saying the International Court of Justice (ICJ) had found Israel not guilty of genocide:

• ‘This is not an accurate representation of the Court's finding, which is that it was plausible that Israel had committed acts of genocide in Gaza. The Court will now consider whether genocide has been / is being committed.’ (Muir)
• ‘…the ICJ was not in fact determining whether Israel was guilty, but whether Israel had a plausible case to answer as a signatory to the 1948 Genocide Convention.’ (Muir)
• ‘This was clearly a false statement. Worse, given undue weight by an authority figure, a lawyer, which could only mislead [the] audience.’ (Knight)
• As this was a very important news story, it was important RNZ took care to ensure accurate reporting. (Knight)

[3]  Knight also raised several other standards as being breached as a result of the incorrect statement:

Offensive and Disturbing Content

• ‘It is particularly offensive to Palestinians living in NZ, who are dealing with so much, every day. And also to their concerned allies here, who are numerous.’

Children’s Interests

• Given the high death toll of Gazan children, saying Israel was not guilty of genocide is ‘concerning to children’s interests everywhere.’

Promotion of Illegal or Antisocial Behaviour

• ‘Prematurely affirming that suspected genocide perpetrators are not guilty when they are under investigation for such supremely serious war crimes is sending a message that this is fine.’ It has the potential to inflame tensions at protests/rallies.

Discrimination and Denigration

• ‘This error is pro-Israeli and clearly discriminatory to Palestinians.’

Balance

• The item ‘immediately followed a brief report on Red Crescent Hospital, which, while at first seemed sympathetic to Palestinians and care workers there, went on to repeat and end with the usual IDF talking point that maybe Hamas fighters were hiding in yet another hospital they were bombing out of existence. This, then, only added to the imbalanced nature of the whole segment.’

Fairness

• ‘It is very unfair to say Israel are not guilty when no such verdict has been reached.’

The broadcaster’s response

[4]  RNZ accepted the statement complained of was inaccurate, and said this came about due to human error as a result of a reporter’s interpretation of written commentary provided by Professor Gillespie off-air. Professor Gillespie had advised:

…Bottom line – although it was good that the case was not thrown-out (the ICJ accepted it could rule on the matter) this was a victory for Israel. South Africa was hoping that the ICJ would make a provisional ruling, as they did in the Ukraine/Russia – Genocide case – that Russia cease all military activities until the matter was resolved. That did NOT occur here. Rather, Israel has to provide a report in a month’s time about how it is acting in accordance with the Genocide Convention (to which it must abide). This is not insignificant. It means that the Court is watching the matter closely and may yet rule further. The court has also ruled that Israel must allow in more aid and humanitarian assistance. This is significant as this has been turned on and off like a tap. Failure to do this is a violation of international humanitarian law – which the Court referred to – but was quick to point out that BOTH sides must abide by, to which it emphasised that the hostages must be returned, quickly and without conditions. In short, a judgement in which all sides will be able to see good things, but fundamentally, although a report has been called for, Israel was not found in prima-facie violation of the Genocide Convention.

[5]  RNZ advised the error stemmed from the reporter’s interpretation of Professor Gillespie’s statement ‘Israel was not found in prima-facie violation of the Genocide Convention.’

[6]  It upheld the complaints under the accuracy standard, saying the item should instead have said ‘…that had not found Israel guilty of genocide.’

[7]  It further advised:

• The error had occurred in five news bulletins on 28 January 2024 - the 2am, 5am, 6am, 7am and 10am news bulletins.
• It was alerted to the error ‘late on the Sunday morning after the 10.00am bulletin.’
• Upon being alerted to the error, RNZ staff took steps to verify the true position, then sent an email at 12.08pm to RNZ’s Chief News Officer (CNO) explaining the error. RNZ staff and the CNO then worked on drafting a correction.
• The error was corrected, both:
  • in the 2pm bulletin which stated ‘Earlier today, RNZ said Israel had been found not guilty of genocide. However the court did not make a specific ruling on whether genocide had occurred, but it did say there was a plausible case under the 1948 Genocide Convention;’ and
  • on RNZ’s ‘Corrections’ page on its website (at 5.35pm on 29 January 2024) which stated ‘RNZ news bulletins on Sunday, January 28, reported Israel had been found not guilty of genocide by the International Court of Justice. However, the court did not make a specific ruling on whether genocide had occurred, but said there was a plausible case against Israel under the 1948 Genocide Convention.’¹

[8]  RNZ did not provide any comments in response to the other standards raised by Knight as being breached.

Referral to the Authority

[9]  The complainants were not satisfied with the action taken by the broadcaster in response to their complaints and so referred the matter to us.

[10]  Muir raised concerns about RNZ’s response, noting while RNZ had advised the sentence should have been worded ‘…that had not found Israel guilty of genocide,’ even this is misleading:

The International Court of Justice was not trying to establish Israel’s guilt or innocence, but whether there was a case for Israel to answer. Israel and its supporters (e.g., Germany) in the hearing were trying to have South Africa’s complaint thrown out on the basis that there was no case to answer.

[11]  He also raised concerns that:

…the same misleading & inaccurate statement about the ICJ's ruling was repeated several times on Sunday, at least at 6.00am, 7.00am, 8.00am and 10.00am, as far as I know. So quite a few listeners would have come away with the wrong impression of what the ICJ ruled, in what I think is an extremely important case for both Israel, Palestine, and their respective supporters.

[12]  Knight stated ‘While they did stand corrected, after careful consideration, I still think that this matter was such a clear breach that it warrants further investigation.’

The standards

[13]  The purpose of the accuracy standard² is to protect the public from being significantly misinformed.³ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

[14]  We consider the accuracy standard to be most relevant to the complaint. Accordingly, we have focused our determination on the action taken by the broadcaster as a result of its finding that the standard was breached. We briefly address the remaining standards raised by Knight at paragraph [28] below.

Our analysis

[15]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[16]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.⁴

Accuracy

[17]  Where the broadcaster has already upheld the complaint in the first instance, our role is to consider whether the action taken by the broadcaster was sufficient to remedy the breach.⁵

[18]  We first considered whether we agreed with RNZ’s finding that there was a breach of the accuracy standard.

[19]  The ICJ delivered an interim order on 26 January 2024 in the case of Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v. Israel).⁶ This case was brought by South Africa seeking a declaration that Israel had breached its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide 1948 (among other things). In its interim order of 26 January, the ICJ found that at least some of the rights claimed by South Africa for which it was seeking protection were plausible, including the right of the Palestinians in Gaza to be protected from acts of genocide. It ordered Israel to undertake several provisional measures to ensure its forces did not commit acts of genocide against Palestinians in Gaza. It did not make a ruling on whether Israel was in breach of the Convention, a question which would be considered at a later date.

[20]  As a result, we agree the statement made in the bulletins – that the ICJ had found Israel not guilty of genocide – was inaccurate. As the item was reporting on the ICJ’s findings, this was a material inaccuracy that would have significantly affected the audience’s understanding of the nature of the findings.

[21]  In considering whether RNZ made reasonable efforts to ensure accuracy, we note RNZ has advised it was relying on commentary from Professor Gillespie, who had indicated (via email) to RNZ that ‘Israel was not found in prima-facie violation of the Genocide Convention.’ While we accept Professor Gillespie could be seen to be an authoritative expert in this field, being a specialist in the laws of war,⁷ we do not consider it was reasonable for a reporter to interpret his comments in the manner stated in the broadcast. The reporter has ignored the context in which that statement was made. In addition, even if read in isolation, the above statement simply indicated Israel was not immediately found guilty of genocide. This was a story of global significance and there was other information readily available to clarify the nature of the ICJ’s decision. A copy of the order, along with a press release, was publicly available on the ICJ’s website,⁸ and accurate reports from other news outlets were also available.⁹ In this context, we consider more care could, and reasonably should, have been taken to either understand the Professor’s comments or check their meaning, either with the Professor or other available sources.

[22]  Accordingly, we do not consider RNZ made reasonable efforts to ensure accuracy of the news bulletins and agree with RNZ’s finding that there was a breach of the accuracy standard.

Action Taken: Accuracy

[23]  Turning to the sufficiency of the action taken by the broadcaster in response to the breach we considered the severity of the conduct, the extent of the actual or potential harm that may have arisen and whether the action taken appropriately remedied the alleged harm.¹⁰

[24]  In terms of assessing the severity of the conduct and extent of harm, we noted:

• The inaccurate statement came about due to ‘human error,’ as a result of RNZ’s interpretation of an expert’s commentary.
• The ICJ’s interim order was a matter of significant public interest in the context of the current Israel-Hamas war.
• Five bulletins on 28 January included the error.
• The statement was corrected within four hours of the bulletin complained about, and that correction was also published on RNZ's website the next day.
• The wording of the correction clarified that ‘the court did not make a specific ruling on whether genocide had occurred, but it did say there was a plausible case under the 1948 Genocide Convention’ which was an accurate reflection of the ICJ’s finding in this regard.
• The broadcaster acknowledged the breach in the first instance and upheld the complaint under the accuracy standard.

[25]  Taking these factors into account, we do not consider any further action is warranted to remedy the breach. The accuracy standard requires broadcasters to correct any material error of fact ‘within a reasonable period after they have been put on notice’. While we acknowledge the inaccurate statement had the potential to misinform the audience on a matter of public importance, after being made aware of the error, RNZ broadcast an on-air correction the same day (within four hours of the bulletin complained about), and later included a correction on its website.  We consider this to be sufficient in the circumstances. However, we remind broadcasters of the importance of ensuring complex legal decisions are accurately reflected in reporting.

[26]  We note the complainant’s concerns with RNZ’s statement in its response to their initial complaint, that the relevant sentence should have been worded ‘…that had not found Israel guilty of genocide.’ However, our focus is on RNZ’s official corrections on-air and on its website, which we have found were appropriate in the circumstances. We therefore do not take this into account in our assessment of whether the broadcaster took sufficient action in response to the breach.

[27]  Accordingly, we do not uphold the complaints that RNZ’s actions in response to its breach of the accuracy standard were insufficient.

Remaining standards

[28]  We consider the remaining standards raised by Knight either did not apply or were not breached:

• Offensive and Disturbing Content:¹¹ The purpose of this standard is to protect audiences from viewing or listening to broadcasts that are likely to cause widespread disproportionate offence or distress or undermine widely shared community standards.¹² The complainant’s concerns under this standard amount to an allegation that the error itself was offensive. The issue of the inaccuracy is more appropriately dealt with under the accuracy standard.
• Children’s Interests:¹³ This standard requires broadcasters to ensure children can be protected from broadcasts which might adversely affect them. The complainant has said that, given the high death toll of Gazan children, saying Israel was not guilty of genocide is ‘concerning to children’s interests everywhere.’ The standard is directed at children viewing or listening to broadcasts, rather than children’s interests more broadly. We do not consider the error would have adversely affected any children who happened to be listening to the broadcast.
• Promotion of Illegal or Antisocial Behaviour:¹⁴ The purpose of this standard is to prevent broadcasts that encourage audiences to break the law, or are otherwise likely to promote criminal or serious antisocial activity.¹⁵ We do not agree the inaccuracy in the broadcast could reasonably be argued to promote illegal or antisocial behaviour.
• Discrimination and Denigration:¹⁶ This standard protects against broadcasts which encourage the discrimination against, or denigration of, any section of the community, including as a consequence of legitimate expression of religion, culture or political belief. We do not consider the error, which RNZ advised came about due to human error, could be said to be discriminatory to Palestinians.
• Balance:¹⁷ This standard ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.¹⁸ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.¹⁹ While the news bulletin reported on a matter of public importance (the ICJ’s recent findings) it did not amount to a ‘discussion’ for the purposes of the standard, as it was a brief, straightforward news report and not an in-depth examination of the findings. The balance standard therefore does not apply. In any event, as we have previously determined regarding the issue of the Israel-Hamas war, we consider the audience could reasonably be expected to be aware of significant viewpoints from other media coverage.²⁰
• Fairness:²¹ This standard ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage. The complainant alleged it was unfair to say Israel are not guilty when this was incorrect. The standard does not address ‘fairness’ to the audience or whether issues/facts are ‘fairly’ or misleadingly conveyed.²² The standard therefore does not apply and these concerns are more appropriately dealt with under the accuracy standard.

For the above reasons the Authority does not uphold the complaints.
Signed for and on behalf of the Authority

Susie Staley
Chair
22 April 2024    

Appendix

The correspondence listed below was received and considered by the Authority when it determined these complaints:

Muir

1  Alexander Muir’s formal complaint to RNZ – 28 January 2024

2  RNZ’s response to the complaint – 30 January 2024

3  Muir’s referral to the Authority – 31 January 2024

4  Muir’s further comments – 2 February 2024

5  RNZ’s further comments – 26 February 2024

6  RNZ’s further comments – 27 February 2024

7  RNZ’s further comments – 17 March 2024

8  Muir’s further comments – 22 March 2024

Knight

9  Anna Knight’s formal complaint to RNZ – 28 January 2024

10  RNZ’s response to the complaint – 16 February 2024

11  Knight’s referral to the Authority – 4 March 2024

12  RNZ’s further comments – 17 March 2024

¹ ‘Corrections and Clarifications – International Court of Justice ruling on Israel’ RNZ (online ed, 29 January 2024)
² Standard 6, Code of Broadcasting Standards in New Zealand 
³ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand, page 16
⁴ Introduction, Code of Broadcasting Standards in New Zealand, page 4
⁵ See, for example, Horowhenua District Council and MediaWorks Radio Ltd, Decision No. 2018-105 at [19]; and Du Fall and the Radio Network Ltd, Decision No. 2014-055 at [8]
⁶ Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel) (Provisional Measures) [2024] ICJ Rep 192
⁷ The University of Waikato | Te Whare Wānanga o Waikato “Bio – Professor Alexander Gillespie”
⁸ See: International Court of Justice ‘Judgments, Advisory Opinions and Orders’ at ‘Order of 26 January 2024’; and International Court of Justice ‘Press Releases’ at ‘Press Release No. 2024/6, 26 January 2024’
⁹ Haroon Siddique and Bethan McKernan “UN court orders Israel to ensure acts of genocide are not committed in Gaza” The Guardian (online ed, 26 January 2024); Paul Adams “Israel reined in by ICJ rulings on Gaza – but will it obey?” BBC (online ed, 26 January 2024); “ICJ orders Israel to take all measures to prevent genocidal acts” BBC (online ed, 26 January 2024)
¹⁰ Lerner and MediaWorks Radio Ltd, Decision No. 2021-091 at [9]
¹¹ Standard 1, Code of Broadcasting Standards in New Zealand 
¹² Commentary, Standard 1, Code of Broadcasting Standards in New Zealand, page 8
¹³ Standard 2, Code of Broadcasting Standards in New Zealand
¹⁴ Standard 3, Code of Broadcasting Standards in New Zealand
¹⁵ Commentary, Standard 3, Code of Broadcasting Standards in New Zealand, page 11
¹⁶ Standard 4, Code of Broadcasting Standards in New Zealand
¹⁷ Standard 5, Code of Broadcasting Standards in New Zealand
¹⁸ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand, page 14
¹⁹ Guideline 5.1
²⁰ See, for example, Lafraie and Discovery NZ Ltd, Decision No. 2023-114 at [14] and [18]
²¹ Standard 8, Code of Broadcasting Standards in New Zealand
²² Commentary, Standard 8, Code of Broadcasting Standards in New Zealand, page 22