BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) and 8(1C) of the Broadcasting Act 1989
Sunday – item and follow-up item investigated a war crime perpetrated by New Zealand’s mounted troopers in Surafend in 1918 – reported how many people had been killed and questioned why the Government would not apologise to the victims’ families – allegedly in breach of controversial issues, accuracy, fairness, and discrimination and denigration

Findings
Standard 5 (accuracy) – no material points of fact raised by the complainant – general thrust of the item was accurate – upholding the complaint would unreasonably restrict broadcaster’s right to freedom of expression – not upheld

Standard 4 (controversial issues – viewpoints) – programme of historical interest but did not discuss a controversial issue of public importance – not upheld

Standard 6 (fairness) – standard only applies to specific individuals – not upheld

Standard 7 (discrimination and denigration) – New Zealand World War I troops not a section of the community to which the standard applies – not upheld

This headnote does not form part of the decision.

Broadcast

[1]  An episode of Sunday, broadcast on TV One at 7.30pm on Sunday 22 November 2009, investigated a war crime perpetrated by New Zealand’s mounted troopers in 1918. Referring to the families affected and their desire for an apology, Sunday questioned why the New Zealand Government would not apologise. Sunday’s presenter introduced the item, saying:

Every April on Anzac Day we glorify our soldiers and their deeds on foreign battlefields. But there’s one campaign that shall not be mentioned. It was 1918, the Great War had just ended but not for our mounted troopers. Fired up on rum and fury at the murder of one of their own, the New Zealanders set about an atrocity, a war crime on innocent civilians. And 90 years on, the families of those victims want an apology from New Zealand, so why won’t we give it?

[2]   A Sunday reporter travelled to the site of the massacre in Surafend. The item included interviews with a descendant of the victims, a descendant of one of the soldiers, the nephew of Trooper Lesley Lowry who was the New Zealand soldier murdered, and an Arab man who was living in Surafend and was one year old at the time of the massacre. Trooper Lowry’s nephew, Noel Woods, was shown saying that he was horrified at what the New Zealand troopers had done.

[3]   Images were shown of dirt and rubble, while a voiceover from the reporter said:

Today, this was all we could find of Sarafand al-Kharab. Now it’s in Israel, but in 1918 it was a part of Palestine, and in the rubble lie the remains of a sorry story of revenge, fire and fear.

[4]   Shown standing in amongst the dirt, the reporter said:

One of the great mysteries of this massacre is, exactly how many Arabs did we kill? Well accepted figures range from 20, maybe 40. See, nobody seems to have bothered to have actually gone out and done a proper body count – they were only Arabs after all. Except for one man, an Australian soldier, a former policeman, who says he got up the next morning and counted not 20, not 40, not 50 corpses, but no less than 137. Trooper Ambrose Mulhall’s account is preserved in Australian archives.

[5]   As the reporter said this, a close up of a hand-written document was shown. A voiceover read, “It was the most gruesome sight, the manner in which their heads were bashed and battered...” and said that “the British demanded New Zealand pay 800 pounds towards rebuilding Surafend, but there’s not much to see”.

[6]   The reporter interviewed Mohamed Diab, a man who was living in Surafend and was only one year old at the time of the massacre. The following exchange took place (with Mr Diab’s comments translated):

Reporter:   This man who killed the New Zealander, who was he?

Diab:          I don’t know who killed him or where he came from. The old people were saying
                 they had no idea who he was. It was a mistake.

Reporter:   In fact, Mohamed asserts his people didn’t know who killed Lesley [Lowry]
                 because the culprit actually came from a neighbouring village.

                 Are you saying the New Zealanders punished the wrong village?

Diab:         Yes. I think it was a mistake because he was from Nes Tziona not from Surafend.

[7]   The reporter stated that Prime Minister John Key believed that no apology was necessary now because New Zealand had already paid restitution to the British (who ruled Palestine) following the attack, and because the soldiers were at fault, not the Government.

[8]   On Sunday 6 December 2009, Sunday broadcast a follow-up item. The Sunday reporter said in his introduction, “when Sunday went to Surafend, this is all we found, rubble and unanswered questions like, exactly how many villagers were murdered? Estimates range from 30 to 137.” Sunday interviewed the grandson of one of the men allegedly involved in the massacre who said that he wanted to apologise for his grandfather’s actions.

Complaint

[9]   The New Zealand Mounted Rifles Association Inc (NZMRA) made formal complaints to Television New Zealand Ltd, the broadcaster, alleging that both items breached standards relating to controversial issues, accuracy, fairness and discrimination and denigration.

[10]   The NZMRA accepted that New Zealand and Australian armed forces had committed murder in Surafend. However, it considered that the Sunday items contained many inaccuracies, and that “the misrepresentation of figures, the omissions of others, the absence of relevant material regarding the non-cooperation of British Command and English Field Police, and the inability of the reporter to understand the true meaning of the words interpreted by the old Arab villager resulted in an exceedingly unbalanced story.”

[11]   The NZMRA considered that the following aspects of the programmes were inaccurate or misleading:

• the lack of information about what occurred immediately after Trooper Lowry’s murder

• the failure to mention that Australia and Britain also had to pay restitution

• the impression that only New Zealand troops were involved in the massacre

• the presenter’s use of the phrase “fired up on rum and fury”

• images of “hordes of mounted troops intermingled with blazing infernos, silhouetted with gun-armed men”

• the statement that 137 people were killed at Surafend and the implication that this number was taken from the document shown in the programme allegedly written by Trooper Ambrose Mulhall

• the interviewee’s comments that New Zealand soldiers had “punished the wrong village”

• the implication that the grandfather of the interviewee in the 6 December item was involved in the massacre.

Standards

[12]   TVNZ assessed the complaints under Standards 4, 5, 6 and 7 of the Free-to-Air Television Code of Broadcasting Practice, which provide:

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

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/or

• does not mislead.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Standard 7 Discrimination and Denigration

Broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

Broadcaster's Response to the Complainant: 22 November item

Standard 4 (controversial issues – viewpoints)

[13]   Looking first at Standard 4, TVNZ argued that, while a discussion about the massacre of Bedouins was controversial, it was not a matter of public importance as envisaged by the standard. Even so, the broadcaster considered that appropriate and significant viewpoints were sought and presented in the story. TVNZ declined to uphold the complaint under Standard 4.

Standard 5 (accuracy)

“Fired up on rum and fury”

[14]   TVNZ noted that accounts from both Trooper Spaven and Trooper Harold “Ted” O’Brien referred to the soldiers having rum or a rum ration and avenging the death of Trooper Lowry. It therefore concluded that “fired up on rum and fury” was an accurate description of the troopers based on the evidence researched by the reporter.

Absence of information about British non-cooperation

[15]   TVNZ said that the reporter maintained he had not seen any statements from those involved saying that they carried out the attack due to the non-cooperation of British Command and English Field Police. “Anything outside of this would be speculation,” it said.

Mistranslation of Arab interviewee’s comments

[16]   The broadcaster noted that the comments in Arabic from the Palestinians were translated at the time by a professional translator who was fluent in English and Arabic. It said that the excerpts that were included in the story were double-checked by another fluent Arabic speaker. TVNZ was therefore satisfied that all of the translations in the item were accurate.

Images of “hordes of mounted troops intermingled with scenes of blazing infernos...”

[17]   TVNZ said that “predominantly the overlay reconstruction sequences were of people on foot creating a general sense of violence, chaos and fire. After the attack, the village was surrounded by mounted troops so horses were part of the events of the night.” It concluded that the editing of the item was not misleading.

Absence of information about what occurred after Trooper Lowry’s murder

[18]   TVNZ contended that the story had outlined the events following Trooper Lowry’s murder including the identification and targeting of Surafend as the location of the attacker. The programme included the following:

Reporter:    According to military records long buried in archives Lesley [Lowry] had caught
                  a thief, attempting to steal from his tent.

Noel Woods, Lowry’s descendant:

                  Lesley awoke and pursued him. And as he’s about to catch him the Bedouin
                  whipped out a revolver and shot him dead.

Reporter:    But the consequences for local Arabs would be even more bloody and terrible.

Woods:      They were shocked to see this young guy killed who was 21. And they were no
                 doubt experienced soldiers who had been through campaigns and so on.

Reporter:   Troops took the law into their own hands.

Woods:      They decided to raid the village where... the Bedouins came from...

Inference that New Zealanders were the only troops involved

[19]   TVNZ considered that the reporter had clearly stated in the 22 November item: “According to records, some Australian and possibly British troops also joined the slaughter demanded by Kiwis in revenge for the murder of Trooper Lowry.” It noted that this point was repeated in the 6 December item.

Comments by Arab interviewee

[20]   TVNZ said that the interviewee acknowledged that the alleged murderer was understood to be an Arab, and told Sunday that the village he came from, Nes Tziona, was a mixed Arab-Jewish settlement in 1918. It said that neither the interviewee nor the programme tried to imply that the attacker might have been Jewish. Information gathered by the reporter also confirmed that Nes Tziona was a mixed Jewish-Arab settlement in 1918, TVNZ said.

Document shown in the item and the claim that 137 were killed

[21]   TVNZ maintained that the figure given in the item came from a letter written by Trooper Mulhall which stated, “I counted 137 dead within the village. It was a most gruesome sight, the manner in which their heads were bashed and battered.” It argued that “Sunday was careful to state in the item that this was one of a range of figures concerning the number of people killed in the massacre. It was, however, the only figure that was sourced to an actual body count.”

[22]   TVNZ stated that the point of the item was that “the vague estimates provided in the original investigation of 40 to 50 dead indicated an indifference towards the victims, which was based on racist views of the day. This was mass murder in peace time, not war, and there is no indication that our or the British army even bothered to obtain names of the victims, let alone count them.”

New Zealand’s restitution payment

[23]   The broadcaster contended that the figure of New Zealand’s restitution was referred to in the item because it was raised by the Prime Minister John Key as a reason why New Zealand should not have to apologise now. Sunday was not discussing Australia or Britain in this context, it said, even though the item and the follow-up item stated that those countries were involved.

Conclusion

[24]   TVNZ concluded that it was satisfied with the veracity of the information presented in the item, and it declined to uphold the Standard 5 complaint.

Standard 6 (fairness)

[25]   TVNZ stated that it was satisfied that the item was accurate and subsequently that the item was fair. It declined to uphold the Standard 6 complaint.

Standard 7 (discrimination and denigration)

[26]   TVNZ noted that the Authority had consistently defined denigration as blackening the reputation of a class of people, and discrimination as encouraging the different treatment of members of a particular group, to their detriment. It maintained that nothing in the programme would have led to the denigration of, or discrimination against, New Zealand World War I troops.

Referral to the Authority

22 November item

[27]   Dissatisfied with the broadcaster’s response, the NZMRA referred its complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[28]   The NZMRA reiterated its arguments in relation to Standards 4 and 5. With regard to fairness, the complainant maintained that the broadcaster did not deal fairly with “the heroic men of the NZMR” because the programme implied that all of the NZMR was involved in the massacre, and only once mentioned the Australians’ involvement, and Britain’s “possible” involvement. The NZMRA argued “that TVNZ footage used two and three-storey concrete and steel structures destroyed by Israeli Commandoes in 1948 as being the burnt out village of Surafend 1918 is grossly unfair” because it was a misrepresentation. Further, “no alternative voice or group was allowed to challenge any part of the programme”.

[29]   Finally, looking at discrimination and denigration, the complainant argued that because the programme only mentioned New Zealand troops, and “as a total”, it discriminated against “the occupational status of New Zealand soldiers” because it linked them to the murders.

6 December item

[30]   Having not received a response from the broadcaster on its second complaint about the follow-up item, the NZMRA referred its complaint about the 6 December item to the Authority under section 8(1C) of the Broadcasting Act 1989. It repeated the arguments made in its original complaint.

Broadcaster’s Response to the Authority: 6 December item

[31]   Looking at Standard 4, TVNZ argued that the follow-up story, “Saying Sorry”, was from the perspective of the grandson of one of the men allegedly involved in the massacre, and that his personal wish to express regret for his grandfather’s actions was not a controversial issue of public importance to which Standard 4 applied.

[32]   Turning to accuracy, the broadcaster repeated its arguments made in relation to the 22 November item. TVNZ was satisfied that the item was accurate and therefore that it was not unfair. It did not uphold the Standard 6 complaint.

[33]   TVNZ maintained that nothing in the 6 December item would have encouraged the denigration of, or discrimination against, New Zealand World War I troops in breach of Standard 7.

Complainant’s Final Comment: 6 December item

[34]   The NZMRA maintained that the 6 December item had breached standards relating to controversial issues, accuracy, fairness and discrimination and denigration.

Authority's Determination

[35]   The members of the Authority have viewed a recording of the broadcasts complained about and have read the correspondence listed in the Appendix. The Authority determines the complaints without a formal hearing.

Standard 5 (accuracy)

[36]   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 NZMRA argued that a number of aspects of the two programmes were inaccurate or misleading.

[37]   In July 2009, the accuracy standard changed and now relates only to “material points of fact”. In our view, the programme presented an historical account of the events that occurred at Surafend in 1918, and offered a 21st century perspective on those events. The general thrust of the stories was that New Zealand soldiers were involved in the killings, which is accepted.

[38]   We therefore find that the specific points raised by the complainant were not material to the focus of the item. We also find that viewers would not have been misled as they would have understood that the programme was providing an historical account based mostly on hearsay and anecdotal evidence, given that no official report of the events was completed. We are in no position to determine the accuracy of disputed historical facts, and we would be reluctant to interfere with the broadcaster’s right to freedom of expression unless we considered the matter was of particular importance.

[39]   Accordingly, we decline to uphold the complaint that the items breached Standard 5.

Standard 4 (controversial issues – viewpoints)

[40]   Standard 4 states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[41]   On this occasion, we consider that the programmes offered a 21st century perspective on the massacre at Surafend, and briefly touched on whether the current New Zealand Government should offer an apology to the victims’ descendants. We accept that the events of 1918 at Surafend may be of historical interest to viewers. However, we are of the view that presenting an historical account of those events and the perspectives of the interviewees did not amount to a discussion of a controversial issue of current interest or of public importance as envisaged by Standard 4.

[42]   Accordingly, we find that Standard 4 does not apply in the circumstances and we decline to uphold this aspect of the complaint.

Standard 6 (fairness)

[43]   Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[44]   The NZMRA did not specify in its original complaints who it believed was treated unfairly. In its referral, it argued that the broadcaster did not deal fairly with “the heroic men of the NZMR” and “that TVNZ footage used two and three-storey concrete and steel structures destroyed by Israeli Commandoes in 1948 as being the burnt out village of Surafend 1918 is grossly unfair”.

[45]   Standard 6 applies only to specific individuals and not to groups of people such as past members of the NZMR. Accordingly, we find no basis upon which to uphold the fairness complaint.

Standard 7 (discrimination and denigration)

[46]   Standard 7 protects against broadcasts which encourage denigration of, or discrimination against, a section of the community on account of race, sex, sexual orientation, age, disability, or occupational status.

[47]   The complainant made no arguments under Standard 7 in its original complaint. It argued in its referral and in its final comments that the programmes encouraged the denigration of, or discrimination against, New Zealand World War I troops on account of “the occupational status of New Zealand soldiers”.

[48]   In our view, New Zealand World War I troops are not “a section of the community” as envisaged by Standard 7. Even so, we find that nothing in the two items could be said to have encouraged denigration of, or discrimination against, those troops. The programmes simply presented an historical account of the events at Surafend, and offered a 21st century perspective from some descendants of people who were involved.

[49]   We therefore do not uphold the Standard 7 complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
27 April 2010

Appendix

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

22 November item

1.          New Zealand Mounted Rifles Association’s formal complaint – 1 December 2009
2.         TVNZ’s response to the complaint – 18 January 2010
3.         NZMRA’s referral to the Authority – 3 February 2010
4.         TVNZ’s response to the Authority – 11 March 2010

6 December item

1.          NZMRA’s formal complaint – 8 December 2009
2.         NZMRA’s referral to the Authority – 4 March 2010
3.         TVNZ’s response to the complaint – 18 March 2010
4.         NZMRA’s final comment – 22 March 2010