BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Tapu Misa declared a conflict and did not take part in the determination of this complaint.

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Radio Live – host discussed the recent re-branding of the New Zealand men’s hockey team – noted that the name change had been effected in conjunction with public relations firm Network Communications – spoke to the firm’s Executive Director live on air who said he could not comment on the matter and wished to speak off-air – host terminated the call and made further comments critical of the re-branding and Network Communications’ involvement – Network Communications not involved with the re-branding – allegedly inaccurate and unfair

Findings
Principle 5 (fairness) – Mr Henley not treated unfairly – aware conversation was being broadcast once it commenced – not unfair – not upheld

Principle 6 (accuracy) – inaccurate to state that Network Communications was public relations company involved – should have broadcast a correction – upheld

Order
Section 13(1)(a) – broadcast of a statement

This headnote does not form part of the decision.

Broadcast

[1] On the morning of Wednesday 11 May 2005 on Radio Live, host Martin Devlin was discussing the recent re-branding of the New Zealand men’s hockey team, henceforth to be known as the “Black Sticks” – the same name as the women’s team.

[2] The host noted that the name change had been made in conjunction with public relations firm Network Communications, and said that the Executive Director of Network Communications, Geoff Henley, was joining the programme.

[3] After greeting Mr Henley, the host asked him whether it had cost $100,000 to change the name of New Zealand Hockey to Hockey New Zealand. Mr Henley immediately responded to the host’s question by saying that there was information that he was unaware of, that “bits of the information aren’t quite right”, and twice suggested that they talk off-air.

[4] After a number of questions – to which Mr Henley repeatedly stated that he couldn’t confirm any details – the host terminated the call and made a number of comments critical of the re-branding and the work performed by the public relations company. In making these comments, the host referred to “Geoff”, meaning Mr Henley, and to Network Communications.

Complaint

[5] Sam Buckle, on behalf of Network Communications (New Zealand) Ltd and Geoff Henley, made a formal complaint to CanWest Radioworks Ltd, the broadcaster. He complained that the broadcast breached standards of fairness and accuracy. Mr Buckle said:

Neither Mr Henley nor Network Communications had any involvement either with the re-branding or with Hockey New Zealand generally. The host’s source – a report from the previous day in the New Zealand Herald newspaper – had made a factual error. Network Communications issued a press release on the same day as the broadcast clarifying that it had not been involved.

[6] No on-air correction was made, in breach of guideline 6b, even though CanWest had been made aware of the inaccuracy on several occasions (three phone calls, an email and a media statement).

[7] When telephoned, Mr Henley was not informed that he was going to be participating in a live radio interview, but was placed on hold and then “thrown straight on air”, in breach of guideline 5a of Principle 5.

[8] Mr Buckle also clarified why Mr Henley had not told the host straight away that Network Communications had nothing to do with the re-branding exercise. First, he explained, Mr Henley had not read the article in the New Zealand Herald that discussed the issue, and thus knew nothing of the background. Second, Network Communications also had an Auckland office, and so Mr Henley – being based in Wellington – could not categorically deny the firm had been involved. Finally, Mr Henley had been involved privately with Hockey New Zealand at an administrative level a number of years before, and thought it possible that the host was referring to something that had occurred during that association.

[9] Mr Buckle maintained that the reputations of Network Communications and Mr Henley had been damaged. He asked that the broadcaster make a prominent correction of the facts at the first available opportunity, as well as issuing an apology.

Principles

[10] Principles 5 and 6 and guidelines 5a and 6b of the Radio Code of Broadcasting Practice are relevant to the determination of this complaint. They provide:

Principle 5

In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.

Guideline 5a

No telephone conversation will be recorded or broadcast for the purpose of news, current affairs or any other programme, unless the recipient has been advised that it is being recorded for possible broadcast, or is aware that the conversation is being broadcast. Exceptions may apply depending upon the context of the broadcast, including the legitimate use of humour.

Principle 6

In the preparation and presentation of news and current affairs programmes, broadcasters are required to be truthful and accurate on points of fact.

Guideline 6b

In the event of an allegation of inaccuracy, broadcasters will act promptly to check the allegation against the original broadcast, and will broadcast with similar prominence a suitable and appropriately scheduled correction if that is found to be justified.

Broadcaster's Response to the Complainant

[11] Responding to the accuracy complaint, CanWest said that the focus of the story was the re-branding of the hockey team and the cost of the exercise. It noted that Network Communications had been identified by Hockey New Zealand in other media reports as being the public relations company involved. Further, it was not until after the broadcast that the company had been able to confirm that there had been a mistake made by Hockey New Zealand, it said. CanWest wrote:

The [Standards] Committee considered whether in all those circumstances Radio Live should have returned to the issue and explained that Network was not the PR company involved in the re-branding. The [Standards] Committee does not consider that a correction was necessary. The issue was the re-branding itself and the cost, the company involved was peripheral and in any event the company itself had quickly clarified that it was not involved.

[12] The broadcaster did not consider that the programme was inaccurate at the time it was broadcast, or that a correction was required later when the company was able to say categorically that it was not involved.

[13] Regarding fairness, CanWest contended that it was clear from the broadcast that Mr Henley knew he was on air. The producer of the programme had gone to some lengths to obtain comment from Network Communications by contacting the Auckland office of the company and being put in touch with Mr Henley, it said. Radio Live had confirmed to CanWest that it had clearly told representatives at the company that the telephone call would be broadcast.

[14] CanWest concluded that neither principle was breached.

Referral to the Authority

[15] Dissatisfied with CanWest’s decision, Mr Buckle referred the complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. He said the complainants did not accept CanWest’s claim that it had no responsibility to provide a correction.

Authority's Determination

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

Principle 6 (accuracy)

[17] The Authority accepts that Network Communications was not the public relations company involved in the re-branding of the New Zealand men’s hockey team. The complainants have advised the Authority that they made CanWest aware of the inaccuracy several times, and argued that the broadcaster should have investigated the matter and broadcast a correction in accordance with guideline 6b. The Authority agrees that the broadcast breached Principle 6.

[18] In its response to the complainants, the broadcaster argued that the item was not inaccurate at the time of the broadcast, due to the confusion surrounding Network Communications’ involvement. The Authority refutes this assertion. It is undisputed that Network Communications was not involved, and therefore it is incongruous to argue that the broadcast was accurate at any time.

[19] Further, the Authority disagrees with CanWest that the issue of which public relations company was involved was “peripheral” to the focus of the story. The host made derisory remarks about the work of the public relations company and the cost of the exercise, sarcastically calling the re-branding an “absolute public relations masterstroke”. In the Authority’s view, the host intended to cast a negative light on the work performed, and he wrongly attributed this to Network Communications.

[20] In order to meet its obligations under the accuracy standard, CanWest was required to be truthful and accurate on points of fact. The Authority notes that Network Communications clarified the facts with CanWest soon after the broadcast. In the Authority’s view, and particularly in light of the potentially damaging nature of the host’s remarks, it would have been appropriate for CanWest to broadcast a correction at that time, so as to act consistently with guideline 6b.

Principle 5 (fairness)

[21] With respect to Principle 5, the complainants have argued that Mr Henley was treated unfairly because he was not aware that his conversation would be going straight to air. The Authority declines to uphold this aspect of the complaint. Guideline 5a applies to situations where a person is unaware that their conversation is being broadcast. In Mr Henley’s case – while his staff may not have advised him that he would be going straight to air prior to the event – he was clearly aware that the conversation was being broadcast once it commenced, as he specifically requested to talk off-air.

Bill of Rights

[22] For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaint that the broadcast by CanWest RadioWorks Ltd of an item on Radio Live on 11 May 2005 breached Principle 6 of the Radio Code of Broadcasting Practice.

[23] Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.

[24] On behalf of Network Communications and Geoff Henley, Mr Buckle submitted that Radio Live, and specifically Martin Devlin, should broadcast a statement summarising the Authority’s decision. He asked that the statement be broadcast on a working day at approximately the same time as the original broadcast, to ensure that it received a similar audience. Mr Buckle also submitted that the broadcast should include an apology by Radio Live and Mr Devlin, and noted that the Authority had ordered such apologies in the past.

[25] In addition, Mr Buckle requested that a summary of the Authority’s decision be published on the Authority’s website, and suggested that Mr Devlin might like to offer a personal apology to Mr Henley.

[26] CanWest agreed that it would be appropriate to broadcast a statement making the correction to the inaccuracy which had led to a breach of Principle 6. However, the broadcaster argued that an apology would be inappropriate on this occasion. CanWest submitted that a previous complaint (Decision No. 2004-115) in which the Authority ordered an apology had arisen from a very different set of circumstances, and in a case where the Authority had found a far more serious breach of the Radio Code.

[27] The Authority has considered the submissions on orders made by the parties. It notes that in Decision No. 2004-115, the broadcast contained allegations of criminal conduct and amounted to a serious personal attack on the complainant. In that respect it differs from the broadcast complained about by Network Communications and Mr Henley. The Authority finds that it would not be appropriate to order an apology on this occasion.

[28] However, the Authority considers that the breach of broadcasting standards on this occasion was sufficiently serious to warrant the broadcast of a statement. Accordingly it imposes the following order:

Order

Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders CanWest RadioWorks Limited to broadcast a statement approved by the Authority. That statement shall:

be broadcast within one month of the date of this decision

be broadcast on Radio Live during the same timeslot and programme as the original broadcast, on a date to be approved by the Authority

summarise the Authority’s decision on the complaint.

The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Joanne Morris
Chair
28 November 2005

Appendix

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

1. Network Communications (New Zealand) Ltd and Geoff Henley’s formal complaint – 17 May 2005
2. CanWest’s decision on the formal complaint – 17 June 2005
3. Network Communications and Mr Henley’s referral to the Authority – 5 July 2005
4. CanWest’s response to the Authority – 10 August 2005
5. Network Communications and Mr Henley’s submissions on orders – 4 October 2005
6. CanWest’s submissions on orders – 17 October 2005