BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has upheld a complaint about an item on Newshub Live at 6pm that discussed the alleged misuse of public funds for safety improvements at a greyhound racetrack. The complainant alleged the programme did not present a balanced view of the issue and misled the audience on key facts regarding what action was taken at the raceway. The Authority found the item was presented in a way that favoured the perspectives of those critical of the racing club’s actions, without giving reasonable opportunities to provide balance from the other side of the story. The Authority also found that a collection of factual errors in the item meant, overall, viewers were materially misled.

Upheld: Balance, Accuracy

The broadcast

[1]  An item on Newshub Live at 6pm on 29 May 2022 reported on the alleged ‘reinstatement’ of dangerous starting boxes at Manawatū Raceway. It was introduced:

Michael Morrah:        Newshub can reveal a greyhound club secured thousands of dollars of taxpayer money to replace their unsafe track with a new, safer one. Then, after the new track was built, the club reopened the old, problematic one. 

Oriini Kaipara:           The industry says it's made safety improvements, but Racing Minister Grant Robertson says he’s extremely disappointed. And after receiving the information from Newshub, he asked the Racing Integrity Board to investigate. 

[2]  The item went on to detail the issues with the track, including comments from Racing Minister Grant Robertson and SPCA scientific officer Dr Alison Vaughan, as well as a paraphrased statement from Greyhound Racing New Zealand (GRNZ). Key excerpts, for the purposes of this complaint, included:

Morrah:                      This is the 375-metre starting box. It's back in action after being decommissioned because it was unsafe.

Robertson:                [The] Racing Safety Development Fund is there to improve track safety across all racing codes. They were provided money to create a safer track environment. And what we're hearing now is an extremely disappointing outcome.

                                    …

Morrah:                      The old, unsafe tracks seen here in 2018 were closed down and not used for years. This image shows the blue boxes are no longer there and was taken in mid‑2021. But then at the end of last year, construction crews moved in and it was rebuilt in exactly the same place with the starting box in exactly the same dangerous position, too close to the bend as the original design. 

Dr Vaughan:              You cannot help look at that decision and come to the conclusion that they're prioritising profit over the welfare of their dogs.

                                    …

                                    I think that is appalling. And I would say, unfortunately, with the greyhound racing industry, we're shocked, but we're not surprised. We have seen this sort of thing time and again.

                                    …

Morrah:                      Since racing resumed at the old track less than two months ago, 21 dogs have been injured while racing there. But Greyhound Racing New Zealand told Newshub multiple changes did occur when the old starting position was reinstated. The boxes in the tracks have been made wider, allowing dogs to take a straighter line to the corner. And a rule change means the lure now starts 10 metres ahead of the dogs. It says there's been a reduction in injuries and no race falls. The industry said it planned to brief the Minister on the matter next month.

The complaint

[3]  GRNZ complained the broadcast breached the balance and accuracy standards of the Free-to-Air Television Code of Broadcasting Practice. The key points of the complaint are:

Balance

• The SPCA expert commented on track safety, however they are not a greyhound track expert, who would have provided a more credible expert interview. Further, the SPCA is opposed to greyhound racing.
• ‘No one from GRNZ or the Palmerston North Greyhound Racing Club was given the opportunity to do an on-camera interview’ while an SPCA representative and the Minister were both given on-camera interviews.
• The programme did not adequately convey GRNZ’s perspective (as outlined under accuracy below).

Accuracy

• ‘Despite GRNZ providing comprehensive comment to Newshub, in the very short timeframe given [on the afternoon of the broadcast, on a Sunday], a very small amount of information provided by GRNZ was incorporated into the segment – and of this limited comment that aired, some was inaccurate’.
• The broadcast stated that the old ‘track’ had been ‘re-opened’ and ‘re-built in exactly the same place with the starting box in exactly the same dangerous position’ (when the broadcaster was told that the boxes had been realigned and so were not in the same starting position).
• The boxes were not made wider, rather the ‘wider’ starting boxes (positions 6, 7 and 8) now had a better line to approach the first corner on the track.
• ‘Newshub referred to 375m and 410m “tracks” and “boxes” interchangeably, which is inaccurate. There is only one greyhound racing track in Palmerston North; there are simply different starting positions on this racetrack, ie the starting boxes’.

The broadcaster’s response

[4]  Warner Brothers Discovery (WBD) did not uphold GRNZ’s complaint for the following key reasons:

Balance

• The broadcaster accepted the item discussed a controversial issue of public importance, but considered ‘viewers were presented with appropriate perspectives on the issue under discussion. The audience heard from the Racing Minister about accountability for funding of safety efforts, from an SPCA spokesperson providing her view on the safety of the changes and also had the benefit of being presented with GRNZ’s viewpoint’.
• The item and its introduction acknowledged GRNZ’s position that the track had been made safer.
• The item also included a graphic of the changes made, and mentioned the wider starting boxes and the rule change regarding the distance of the lure from the dogs.

Accuracy

• The comments that boxes were made ‘wider’ was a mistake, but was technical and did not affect viewers’ core understanding of the issues being discussed. The broadcast included GRNZ’s position that ‘the track had been "reconfigured", that it had been made safer, that injury rates had decreased, and that the position of the lure had changed to further improve safety.’
• Changes in the orientation of the boxes were marginal, consisting of only a 15cm shift at one end. Photos confirm the boxes are in the same place. Therefore, reporting that the boxes were in the same place was accurate, even if there had been a small shift of one end.
• Prior to the broadcast, the broadcaster contacted the Minister’s staff with GRNZ’s statement to see if it changed his mind on this issue and it did not.
• The interchangeable use of ‘tracks’ and ‘boxes’ was a technical point that was not material to viewers’ core understanding.
• The written online version of the story was updated to remedy these technical points.

Jurisdiction – scope of complaint

[5]  Under section 8(1B) of the Broadcasting Act 1989, the Authority is only able to consider complaints under the standard(s) raised in the original complaint to the broadcaster. However, in limited circumstances, the Authority can consider standards not raised in the original complaint where it can be reasonably implied into the wording, and where it is reasonably necessary in order to properly consider the complaint.¹

[6]  While the original complaint identified only the balance and accuracy standards as having been breached, we considered whether the fairness standard should also be implied to properly assess some of the concerns raised (for example, whether GRNZ was given a fair and reasonable opportunity to comment).

[7]  We concluded that the other standards raised adequately capture the key points of complaint and enable a proper consideration of the issues raised. For example, the wording of the balance standard requires the broadcaster to give ‘reasonable opportunities’ to provide a balancing viewpoint (which captures GRNZ’s opportunity to comment). We also noted the language of the complaint was clearly expressed as relating to the accuracy and balance standards.

[8]  On this basis we did not consider it reasonably necessary in this case to extend the scope of our decision beyond the two standards originally raised.

The standards

[9]  The balance standard states when controversial issues of public importance are discussed in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant viewpoints either in the same broadcast or in other broadcasts within the period of current interest.² It ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.³

[10]  The purpose of the accuracy standard⁴ is to protect the public from being significantly misinformed.⁵ 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 materially mislead the audience (give a wrong idea or impression of the facts).

[11]  The standard is concerned only with material inaccuracies. Technical or other points unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.⁶ Where a material error of fact has occurred, broadcasters should correct it at the earliest appropriate opportunity.⁷

Our analysis

[12]  We have watched the broadcast and read the correspondence listed in the Appendix.

[13]  As a starting point, we considered the important right to freedom of expression, which includes both the broadcaster’s right to offer a range of information and content, and the audience’s right to receive it. Our task is to weigh the right to freedom of expression and the value and public interest in the broadcast, against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where limiting the right to freedom of expression is reasonable, and justified by the level of harm.⁸

[14]  Media play a vital role in scrutinising public expenditure and this programme raised questions and explored allegations that carried value and public interest in terms of whether taxpayer dollars had been appropriately spent. However, there is also public interest in ensuring the audience has the benefit of both sides of the story.

[15]  We reached the view that, in this case, the broadcaster’s presentation of the facts and favouring of particular (critical) perspectives undermined the public interest in the story, causing potential harm under the balance and accuracy standards that outweighed freedom of expression. We explain our reasons below.

Balance

[16]  The first question for the Authority was whether the balance standard applied to this Newshub item. A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered.⁹ 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’.¹⁰

[17]  An issue ‘of public importance’ is something that would have a significant potential impact on, or be of concern to, New Zealanders.¹¹ A ‘controversial’ issue is an issue of topical currency; which has generated or is likely to generate conflicting opinion, or about which there has been ongoing public debate.

[18]  This broadcast discussed a greyhound racing club allegedly misusing public funds allocated to alleviate safety concerns – in other words, not delivering what was promised as part of securing the funds. There is significant public interest in alleged misuse of taxpayer money. While this specific story did not create a lot of media coverage or discussion, this does not mean the issue was not controversial (there were clearly opposing perspectives), and similar stories often experience extensive coverage.¹² The perspectives of the Racing Minister, the SPCA and GRNZ, as well as the broadcaster were included in this story, amounting to a discussion. On this basis we are satisfied the broadcast discussed a controversial issue of public importance.

[19]  The next step under the balance standard is to consider whether the broadcaster made reasonable efforts, or gave reasonable opportunities, to present significant viewpoints on this issue.

[20]  In our view, the dominant impression created by the introduction, and reinforced by most of the comments included in the item, was that public money had been misspent by the racing club. Strong, critical statements were made by the Racing Minister who emphasised how ‘disappointed’ he was and announced an investigation into these allegations, and by an SPCA representative who alleged the club was prioritising profit over animal safety.

[21]  While the balance standard does not require equal time to be given to competing views (balance is not achieved by the ‘stopwatch’), it does require that broadcasters give a fair voice to alternative significant viewpoints, taking into account the nature of the issue and coverage of that issue.¹³

[22]  We do not consider GRNZ’s countering perspective was given a ‘fair voice’ or that the broadcaster gave ‘reasonable opportunities’ for balance to be provided on that side of the issue.

[23]  We are not particularly concerned that GRNZ only had an approximately four-hour window on a Sunday afternoon to prepare a response – GRNZ was nevertheless able to provide a comprehensive statement and engage in email correspondence back-and-forth with the reporter in that timeframe. We also consider GRNZ was an appropriate organisation to approach for comment, and it was not necessary in the interests of balance to also approach the Palmerston North Greyhound Racing Club.

[24]  Our main concern is that GRNZ was not given an opportunity to respond to all of the key allegations from other participants, such as that profit was being prioritised over safety and the allegations of misspent taxpayer money made by the Minister. The full written statement provided by GRNZ did address some of these issues, such as why it did not consider the grant money should be repaid, and that safety research was commissioned by the Palmerston North Greyhound Racing Club. As discussed further below under accuracy, the statement also contained further details which mitigated some of the misleading points highlighted with respect to actions the club had taken and how the money had been spent. While not determinative, we also noted the imbalance in the general tone of the item was compounded by the fact GRNZ was not invited to give an on-camera interview.

[25]  Accordingly, we find the broadcaster did not provide adequate balance within the programme to enable the audience to reach an informed view on the issue.

[26]  As to whether balance was achieved in other programmes,¹⁴ the broadcaster has not pointed us to any follow up stories on this issue, apart from the corresponding online article for this segment, which added only the complainant’s point regarding the 15cm shift at one end of the starting boxes.¹⁵ Beyond that, the only other media coverage of this story (to our knowledge) was a Stuff article where GRNZ’s perspective was more fully conveyed.¹⁶ We do not consider Newshub’s audience could reasonably be expected to be aware of this limited media coverage. Therefore, we also find inadequate balance was provided within the period of current interest.

[27]  We conclude the potential harm caused by not making reasonable efforts to include a major perspective undermined the public interest in the story. It is a reasonable restriction on the broadcaster’s right to freedom of expression to require reasonable efforts to convey GRNZ’s perspective on this issue, to ensure viewers were sufficiently informed.

[28]  Accordingly, we find the balance standard was breached.

Accuracy

[29]  Determination of a complaint under the accuracy standard occurs in two steps.¹⁷ The first step is to consider whether the programme was inaccurate on a material point of fact, or materially misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure the programme was accurate and did not mislead.

[30]  The complainant alleged the broadcast was inaccurate or misleading in several ways:

a)  The starting boxes had not been made wider; rather wider boxes had a different angle as they had been moved 15cm.

b)  The old starting position had not been ‘re-opened’ and ‘re-built in exactly the same place with the starting box in exactly the same dangerous position’, due to the above change.

c)  The terms ‘tracks’ and ‘boxes’ being used interchangeably would have confused the audience as to what was occurring at the raceway.

[31]  Taking each of these points in isolation, we were not persuaded they would have significantly affected viewers’ understanding of the story.

[32]  However, while individually these specific issues may be technical or otherwise minor, we have previously held that a collection of smaller or minor inaccuracies can lead to a broadcast being materially misleading overall¹⁸ – in other words, by giving a ‘wrong idea or impression of the facts’.¹⁹

[33]  The broadcast stated at the outset:

Newshub can reveal a greyhound club secured thousands of dollars of taxpayer money to replace their unsafe track with a new, safer one. Then, after the new track was built, the club reopened the old, problematic one…

[34]  The reporter then noted ‘it was rebuilt in exactly the same place with the starting box in exactly the same dangerous position’.

[35]  Having read GRNZ’s statement in full, there are other details that give a different picture of what occurred at the Palmerston North Greyhound Racing Club. For example, the statement explained:

• the new 410m starting boxes remained operational
• research and trials had been commissioned to make the replaced 375m boxes safer
• the 375m boxes were a new ‘drop-in’ type that improve dog safety
• the 375m boxes were now safer than the 410m ones originally proposed.

[36]  For these reasons, we find the broadcast overall was misleading. Having reached this conclusion, the next step is to consider whether the broadcaster made reasonable efforts to ensure that the programme was accurate and did not mislead. We have reached the view it did not, taking into account the following:²⁰

• The broadcaster sought and presented comments from GRNZ. However, the written statement from GRNZ was inaccurately paraphrased in a way that omitted details that would have changed viewers’ understanding of the events described.
• The accuracy of these issues was reasonably capable of being determined by the broadcaster, having been clearly detailed in the written statement from GRNZ.
• Some of the details the complainant identified as being misleading were correct in the online version,²¹ showing the broadcaster had that information available but chose not to include it.
• The Newshub item was pre-recorded (not live) and had apparently been prepared over a number of days (having regard to the timeline of contact attempts by the reporter, noted in the broadcaster’s submissions). In other words, this was not a time-sensitive piece or ‘breaking news’ situation where time constraints limited the capacity to analyse available information.
• The broadcaster had complete editorial control over the item.

[37]  In these circumstances, we consider upholding the complaint under the accuracy standard represents a reasonable and justified restriction of the broadcaster’s right to freedom of expression. A more complete and neutral presentation of the facts would have better served the public interest and ensured viewers were not materially misled.

For the above reasons the Authority upholds the complaint that the broadcast of an item on Newshub Live at 6pm on 29 May 2022 breached the balance and accuracy standards of the Free-To-Air Television Code of Broadcasting Practice.

[38]  Having upheld the complaint, we may make orders under s 13 and s 16 of the Broadcasting Act 1989. We have concluded no order is warranted in this case. This is on the basis that publication of our decision is sufficient to publicly notify the breach of the balance and accuracy standards and censure the broadcaster. This decision also provides guidance to broadcasters to assist their understanding of obligations under the standards and mitigate against future breaches.

Signed for and on behalf of the Authority
 

Susie Staley
Chair
30 January 2023

Appendix

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

1  Greyhound Racing New Zealand’s formal complaint to WBD – 14 June 2022

2  WBD's decision on the complaint – 12 July 2022

3  GRNZ’s referral to the Authority – 25 July 2022

4  WBD confirming no further comments – 2 August 2022

5  GRNZ’s submissions on fairness standard – 18 October 2022

6  WBD's submissions on fairness standard – 31 October 2022

¹ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
² Standard 8, Free-to-Air Television Code of Broadcasting Practice
³ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁴ Standard 9, Free-to-Air Television Code of Broadcasting Practice
⁵ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁶ Guideline 9b
⁷ Guideline 9c
⁸ Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
⁹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹⁰ Guideline 8a
¹¹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹² See for example: Jamie Ensor “National calls for investigation into cost of living payment, 800,000 fewer people got money than estimated” Newshub (online ed, 2 August 2022); Michael Neilson “Covid-19 Omicron: Charges filed for seven alleged abuses of wage subsidy scheme” NZ Herald (online ed, 9 May 2022); and Phil Penington “No transparency on DHBs' contractor spending” RNZ (online ed, 21 March 2022)
¹³ Guideline 8b; and Robertson and Television New Zealand Ltd, Decision No. 2022-015 at [15]
¹⁴ Guideline 8c
¹⁵ Michael Morrah “Palmerston North Greyhound Club used taxpayer money to replace unsafe track, only to rebuild it in same dangerous position” Newshub (online ed, 29 May 2022)
¹⁶ George Heagney “Greyhound boss defends track safety changes” Stuff (online ed, 30 May 2022)
¹⁷ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
¹⁸ Morrison and Television New Zealand Ltd, Decision No 2021-150 at [19]
¹⁹ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [98]
²⁰ Guideline 9d
²¹ Michael Morrah “Palmerston North Greyhound Club used taxpayer money to replace unsafe track, only to rebuild it in same dangerous position” Newshub (online ed, 29 May 2022)