BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under s.8(1)(a) of the Broadcasting Act 1989
Issues – talkback host suggested commercial parking requirements involved double standards on part of Nelson City Council and “bordered on corruption” – host a potential candidate for Nelson mayoralty – inaccurate and unfair

Findings
Standard 5 (accuracy) – standard not applicable to broadcast – not upheld

Standard 6 (fairness) – opinions expressed based on inaccurate facts – unfair – upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1] Issues broadcast by Mainland Television in Nelson on Monday evenings is a programme in which guests discuss matters with the host, Gary Watson. Opportunity is also provided for viewers to call in and discuss matters with the guest and the host.

[2] Parking requirements for commercial businesses in Nelson was one of the topics discussed on Issues on Monday 8 December 2003. During the programme the host made the following comments:

• “a rule for Council and a rule for the rest of us”
• “seems double standards. Council can put a museum right in the centre of the city and didn’t provide any car parks for that” and
• “it’s just double standards, it’s really bordering on corruption.”

Complaint

[3] Nelson City Council, through its solicitors, complained to Mainland Television that the comments were inaccurate and unfair. Noting that Mr Watson, shortly after the broadcast, had announced his intention to stand for mayor in the next local body elections, the Council emphasised that the accuracy requirement had been breached by the broadcast.

[4] Parking rules, it wrote, were the same for the Council as for anyone else as required by the Resource Management Act 1991. The Council had not put the Museum in the middle of the city, and the innuendo that the Council was able to locate the Museum in the city centre without the provision of car parks, was incorrect.

[5] As for the double standards remark, the Council pointed out that there were separate rules for the commercial parking area, that there had been separate rules for many years, and that those rules were well-known.

[6] Turning to the requirement for fairness, the Council contended that Mr Watson had referred to the Council unfairly. It sought an apology.

Standards

[7] The complainant argued that the broadcast contravened the following standards in the Free-to-Air Television Code of Broadcasting Practice.

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.

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.

Broadcaster's Response to the Complainant

[8] Mainland Television dealt first with the aspect of the complaint which focused on the “bordering on corruption” comment. It argued that no person was accused of being corrupt and the comment, made during a talkback programme, was spontaneous.

[9] On the basis that Issues was a live talkback programme, Mainland Television stated that it was neither news nor current affairs. Rather, it allowed free and open discussion in a society which valued free expression. The broadcaster also pointed out that a Council spokesperson was free to call, and remained welcome to do so, to provide the facts on the Council’s car parking policy.

[10] Mainland Television maintained that the programme was open to all and some callers had expressed concern about the fairness of the Council’s policies and actions. It noted that the host had later made public his intention to seek the Nelson mayoralty in 2004.

[11] Declining to uphold the complaint, the broadcaster wrote:

Clearly the programme is based around free and open live on air discussion. In this case a Nelson City Councillor was present and he did not react either agreeing with the discussion nor disagreeing. He showed no sign of being offended and had the opportunity to respond if he so wished.

Referral to the Authority

[12] When the complaint was referred to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989, the Council’s solicitors expressed dissatisfaction that the complaint had not been upheld under Standards 5 and 6. It repeated the arguments made in its letter to the broadcaster.

[13] As for the point made in the broadcaster’s reply about the presence of a councillor, the Council stated that the programme made it clear that he was appearing in a personal capacity and, in fact, had a commercial arrangement with Mainland Television to appear.

Broadcaster’s Response to the Authority

[14] Gary Watson, as Managing Director of Mainland Television and host of the Issues programme complained about, advised the Authority that Mainland endeavoured to provide “general family viewing”. As he considered that the current complaint was “politically motivated”, he reported that the response from Mainland Television to the complaint had been researched and prepared by a person (John Henderson) who was not involved in the station’s day-to-day operations.

[15] Mr Henderson’s 20 page response argued that the complaint had to be seen in the context of an “acrimonious political situation” that existed between the mayor and several councillors of the Nelson City Council and Gary Watson, the principal of Mainland Television. Mr Watson, the response said, had previously challenged the mayor and intended to do so again in the 2004 local body elections. The political atmosphere between Mr Watson and the mayor was described as “adversarial and acrimonious”, and the complaint had to be seen in that context. The complaint, it was also argued, was being used to deflect attention from the real issues.

[16] Turning to the details of the complaint, the broadcaster argued that the thrust of its response was that the opinions advanced were accurate and fair comment.

[17] As for the programme itself, the broadcaster stated that Issues could only be categorised as a “talkback show”, in which opinions were expressed, and to which Standard 5 did not apply.

[18] The broadcaster then considered the aspect of the complaint concerning the host’s suggestion that there was a different set of rules “for them and us.” This, it argued, was a colloquial saying and would not be taken literally.

[19] As for the “double standards” comment, surprise was again expressed that such a colloquial remark could be taken literally. Nevertheless, the broadcaster argued, its research suggested that there was a double standard operating in regard to the building which would become the museum as the NCC, as the part owner, developer and consenting authority, “did not require itself as the owner and developer” to provide the required parking.

[20] The broadcaster contested the complainant’s portrayal of itself as an “innocent bystander” to the process regarding the location of the museum. Details were provided regarding the establishment of the museum, which, it was argued, showed the NCC was deeply involved in the decision as to its location.

[21] As for the NCC’s argument that it was not involved in the provision of car parks, the broadcaster outlined some of the processes involved and contended that, as a result, the Council was in fact involved in the provision of car parks. The broadcaster submitted:

… the claim and innuendo that somehow or other the council had some influence on the issue of the Museum not providing any car parks is in fact a fair and accurate portrayal of the NCC’s role and function in the consent process.

[22] In its response to the complaint about the words “bordering on corruption”, the broadcaster submitted that the Council was showing “extreme political sensitivity”, and had leapt to “non existent conclusions”. The broadcaster argued that there was no accusation of “nefarious” activities. The broadcaster insisted that the NCC had assumed that corruption was meant in the sense of “bribery, extortion and fraud”. However, citing the Concise Oxford, the broadcaster said it had a number of meanings depending on context. On this occasion, it wrote:

The context, in which the use of the word corruption was made, was that a single common consent standard was meant to be being applied by the consent authority in an even-handed and consistent manner to all applicants.

The caller’s opinion asserted an inconsistent application of the required standard by the consent authority and that the standard was being applied differentially between the caller himself and the consent authority itself.

[23] Mainland Television maintained that it had not made an allegation that anyone had illegally or fraudulently benefited from the different application of the parking standards.

[24] The broadcaster then pointed out that the statement referred to “ bordering on corruption” and argued that even if the previous contention about the meaning of “corruption” in the specific context was not accepted, the use of the words “borders on” qualified the statement. “Some thing bordering on something else is not the same thing as being that something else”, Mainland Television concluded.

[25] Turning to the complaint about fairness, the broadcaster said that the comment about a double standard was the expression of a genuinely held opinion. It was a fair comment, it continued, in view of the factual situation which prevailed. The comment about corruption was also the expression of a genuinely held opinion, the broadcaster wrote.

[26] Overall, the broadcaster posited the view:

… that the opinions expressed and the comments made in the course of this live on air talk back programme were reasonable opinions which reasonably commented on the reasonable concerns of the caller. It seems to me that if those opinions and that comment are in any way misguided or mistaken then the NCC has a major communication problem and issue with the community in general and the business community in particular.

[27] In conclusion, Mainland Television wrote:

Clearly this complaint does not fall into the category of overt offence. Councillors were in no way accused of any corrupt practice. They were in no way accused of any immoral practice. They were in no way accused of any illegal practice. They were in no way accused of any unethical practice. They were in no way called by any objectionable epithet, or description.

Complainant’s Final Comment

[28] The Council considered that much of Mainland Television’s response was “irrelevant”. The relevant matter, it stated, was whether Issues broadcast on 8 December breached broadcasting standards. Issues, it continued, purported to deal with current affairs and, therefore, was required to comply with the accuracy requirement in Standard 5.

As for the matter of car parking at the museum, the Council said that the relocated museum was not required by the Resource Management Plan to provide parking spaces. The plan, it added, had been incorrectly interpreted by Mainland, and the Council had not applied a double standard to the Museum Trust.

[29] In conclusion, the Council argued:

Overall, we invite the Authority to consider the response from the broadcaster reflects such a low level of insight into the matter it is evident that the broadcaster does not take its responsibilities under the Broadcasting Act seriously. The response belittles the Authority’s role.

Further Correspondence

[30] Mainland Television responded to the complainant’s final comment and acknowledged that it had a low level of knowledge on the matter. It referred to the efforts it had made to ascertain the rules from Council staff and accepted that there was confusion about what was required. It wrote:

Originally we had colloquial double standards. Then we had only a single standard that captured all comers. Now it appears that we have an unspecified multiple number of standards.

Clearly that variety and multiplicity of standards provides confusion for the Council and its own staff, without even contemplating the general public understanding, or for that matter Mainland’s own understanding of this vexed [car parking] issue.

[31] In summary, Mainland Television reiterated its argument that its statements were reasonable in the circumstances or amounted to fair comment, concluding:

Mainland’s response has purely been to establish the accuracy or reasonableness and therefore the fairness of those comments or opinions. Unfortunately that approach by necessity requires the detailed canvassing of matters and subjects that are politically distasteful to the NCC.

[32] The Council’s solicitors, in response, pointed out that the broadcaster had acknowledged its inaccuracy but did not apologise for it. It wrote:

The essence of Mainland Television’s response is that it is entitled to make inaccurate and unfair statements contrary to the guidelines issued by the Authority. Ignorance of the law is no excuse. The statements were clearly wrong. Mainland should acknowledge their inaccuracy and the fact that they have breached the standards required.

Authority's Determination

[33] The members of the Authority have viewed a video of the item complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaints without a formal hearing.

[34] The Authority considers that it is important, in view of the extensive submissions received, to review the substance of the complaint. In the initial complaint, the solicitors for the Nelson City Council complained that the host of Issues (Gary Watson), made the following comments when discussing the policy requirements for commercial parking in Nelson City:

“…. a rule for Council and a rule for the rest of us”

“… seems double standards. Council can put a museum right in the centre of the city and didn’t provide any car parks for that.”

“… it’s double standards, it’s really bordering on corruption”.

[35] The complainant contended that these comments were inaccurate and unfair. Describing the comments as “clearly inaccurate”, it contended that the Standard 5 requirement for accuracy was “most obviously breached”. Further, it maintained that the Standard 6 requirement for fairness was breached as the comments were unfair to the Council.

Standard 5 Accuracy

[36] Standard 5 requires factual accuracy in “news, current affairs and other factual programmes”, and the Authority must determine whether Issues falls into one of these categories. As the material was clearly neither news nor, given the range of opinions advanced, a factual programme, the question is whether the broadcast was “current affairs”.

[37] In previous decisions dealing with complaints about comments made on talkback radio, the Authority has declined to make a definitive ruling as to whether “talkback” is always, or never, “current affairs”. As talkback may on occasions deal with current affairs in an objective manner, the Authority has ruled that each specific talkback programme complaint will be considered in context.

[38] The Authority notes that the matters to be covered by this episode of Issues involved a degree of preparation by the host such as gathering some photographs. The Authority also assesses the broadcast from the perspective of the viewer and concludes that this broadcast on this occasion could not be considered as one which dealt with current affairs from an investigative or impartial perspective. Rather it involved the host and his guest, a City Councillor who was explicitly not representing the Council, expressing their opinions on a number of matters in regard to the policy and practices of the Nelson City Council – and in particular the parking policy. Therefore, the Authority does not uphold this aspect of the complaint. Nevertheless, having read the submissions, the Authority accepts that the broadcaster was incorrect regarding the requirements for commercial parking in Nelson City. It also notes that somewhat inflammatory language was used.

Standard 6 Fairness

[39] While the broadcasting standards applying to such programmes as Issues do not require factual accuracy, it remains open for the Authority to decide whether any inaccuracies contained in such programmes are likely to leave the viewer/listener with an understanding of the event that is unfair to the person or organisation being discussed. On this occasion, the Authority accepts that some of the opinions expressed were based on an incorrect summary of the Nelson City Council’s policy. The Authority is of the view that the comments expressed (and noted in para [34]) were unsubstantiated criticism and were unfair to the Council. Accordingly, it concludes that the broadcast breached the requirement for fairness in Standard 6.

For the reasons above, the Authority upholds the complaint that the broadcast by Mainland Television Ltd of Issues on 8 December 2003 breached Standard 6 of the Television Code of Broadcasting Practice.

It declines to uphold any other aspect of the complaint.

[40] Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. It decides not to impose an order on this occasion. While it finds that the host’s comments dealt with the Nelson City Council unfairly, it notes that the comments were not made in an abusive tone. Rather, they were the expression of one person’s opinion, and although based on an incorrect understanding of the facts, they were made in the environment of talkback by a host who is known to be involved in local body politics. Accordingly, the Authority considers that an order is neither necessary nor appropriate.

Signed for and on behalf of the Authority

Joanne Morris
Chair
17 June 2004

Appendix

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

1. Nelson City Council’s Complaint (through its solicitors) to Mainland Television Ltd – 22 December 2003
2. Mainland’s Response to the NCC – 24 December 2003
3. NCC’s Referral to the Broadcasting Standards Authority – 12 February 2004
4. Mainland’s Response to the Authority (plus attachments) – 25 February 2004
5. NCC’s Final Comment (plus attachments) – 20 March 2004
6. Mainland’s Further Response – 1 April 2004
7. NCC’s Second Final Comment – 8 April 2004