Olsen-Reeder and Television New Zealand Ltd - 2015-018
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Vincent Olsen-Reeder
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
A Breakfast bulletin reported that Auckland's Okahu Bay would be closed to the public for one day due to a private event held by local iwi Ngāti Whātua Orākei. The Authority did not uphold the complaint that the item was inaccurate, unfair and encouraged discrimination by omitting the views of Ngāti Whātua and implying their actions were 'wrong'. It would have been preferable to include comment from Ngāti Whātua in the initial broadcast, and by failing to fully explain why Okahu Bay was closed, viewers could have been left with an ill-informed, negative view of Ngāti Whātua. However comment was included in later TVNZ broadcasts the same day which mitigated any potential unfairness. Nothing in the item encouraged the denigration of, or discrimination against, Ngāti Whātua and/or Māori.
Not Upheld: Accuracy, Fairness, Discrimination and Denigration
 A Breakfast bulletin reported that Auckland's Okahu Bay would be closed to the public for one day due to a 'private family event' held by local iwi Ngāti Whātua Orākei. The item included comment from Auckland Council that the closure was legal.
 Vincent Olsen-Reeder complained that the broadcast was inaccurate and unfair as it did not present the views of Ngāti Whātua or reasons for the closure. He considered the item encouraged discrimination by suggesting that Ngāti Whātua had 'wronged' Aucklanders and incited 'racially driven commentary' directed towards Ngāti Whātua and Māori.
 The issue is whether the broadcast breached the accuracy, fairness and discrimination and denigration standards as set out in the Free-to-Air Television Code of Broadcasting Practice.
 The item was broadcast on TV ONE on 20 February 2015. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Was the broadcast inaccurate or misleading?
 The accuracy standard (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 objective of this standard is to protect audiences from receiving misinformation and thereby being misled.1
 During the item, the newsreader stated:
A popular summer spot for Aucklanders, Okahu Bay, is set to be closed to the public tomorrow. This notice says the Bay will be closed from 6am to 4pm on Saturday for a private family event. The sign was placed there by Ngāti Whātua Orākei. It is unclear how much of the beach will be closed but Auckland Council says that this can be legally done. It says under the Reserves Act it's possible to grant exclusive use of a reserve, or part of a reserve, for an event.
 A brief shot of a sign at Okahu Bay was shown which said, 'This land is owned by Ngāti Whātua Orākei and co-managed with Auckland Council for the enjoyment of all. Rangers on duty in summer. Please honour the protocol of respectful behaviour on this ancestral land.' The words 'for the enjoyment of all' were highlighted.
 Mr Olsen-Reeder argued that the broadcast contained key errors of fact, was misleading and was not impartial. He felt it suggested that Ngāti Whātua were closing access to an area of Okahu Bay at a loss to Aucklanders, and that this was 'wrong'. Mr Olsen-Reeder argued the item should have illustrated clearly that anybody, through the correct legal process, can apply to close a public area at any time (which is what Ngāti Whātua did), and should have included Ngāti Whātua's position.
 TVNZ noted that Ngāti Whātua's views, reasons for the closure and objections to the closure were included in the ONE News bulletin later the same day. It maintained that the reasons for the closure were briefly given in the Breakfast item in the form of the description of the newspaper ad placed by Ngāti Whātua. It also argued that the comment from Auckland Council gave helpful background on the issue, stating that the closure was legal. In addition, TVNZ said that the signage shown in the item, while highlighting that the beach was 'for the enjoyment of all', also indicated the land is owned by Ngāti Whātua Orākei and co-managed with Auckland Council.
 We are satisfied that the item did not contain any material errors of fact. We acknowledge that a programme can be misleading by omission and we understand the complainant's view that by failing to fully explain the reasons for the closure of Okahu Bay and Ngāti Whātua's position, there was the potential for some viewers to be left with an ill-informed view which reflected negatively on Ngāti Whātua.
 However we also appreciate that the explanation of the closure was necessarily brief in the context of a short news item of only 35 seconds' duration, and could convey only the essential points in that context. While it would have been preferable for the item to include the perspective of Ngāti Whātua, which would have mitigated any potential for viewers to be misled (discussed further as a matter of fairness, at paragraphs  to  below), the item did include a clear statement that 'Auckland Council says that this [the closure] can be legally done'. We therefore do not think viewers would have taken from the item that the actions of Ngāti Whātua were 'wrong'.
 Overall we find that the item did not breach standards of accuracy and we decline to uphold the complaint under Standard 5.
Was Ngāti Whātua treated unfairly?
 The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.2
 Mr Olsen-Reeder argued that it was unfair that only one party was spoken to about the closure of Okahu Bay (Auckland Council) and that no effort was made to engage with Ngāti Whātua.
 TVNZ said it understood the complainant's view that it would have been ideal if comments from Ngāti Whātua had been included in the first report, but noted that this did occur in later bulletins on the same day. It considered the item was a 'straight report' about the closure of the beach for a private event, and included reference to the legality of the closure, how common the practice is, and Ngāti Whātua Orākei ownership of the land. It maintained that in this context the broadcast was not unfair.
 In our view, it would have been preferable, and not unreasonably onerous, to seek comment from Ngāti Whātua prior to the initial Breakfast broadcast –especially given comment was able to be obtained from Auckland Council. There were two parties involved in the temporary closure of Okahu Bay, and both should have had an opportunity to present their views, preferably during the same broadcast.
 This being said, we recognise that the purpose of the Breakfast item was to briefly introduce the story at the beginning of the day, within the time constraints of a short bulletin. The story was then developed in later TVNZ news items the same day which did include comment from a Ngāti Whātua spokesperson. This mitigated any potential unfairness resulting from the earlier broadcast. In addition, the comment from Auckland Council within the Breakfast item clearly stated it was lawful to grant exclusive use of a reserve or part of a reserve for an event.
 Overall we are satisfied that Ngāti Whātua was not treated unfairly in breach of the standard, particularly taking into account the later broadcast. We therefore decline to uphold the fairness complaint.
Did the broadcast encourage the denigration of, or discrimination against, Ngāti Whātua and/or Māori as a section of the community?
 The discrimination and denigration standard (Standard 7) protects against broadcasts which encourage the denigration of, or discrimination against, 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.
 Mr Olsen-Reeder argued that the item encouraged discrimination against Ngāti Whātua by announcing they were 'closing access' to Aucklanders to a public space for a 'suspicious reason' (a private family event). He felt this separated Ngāti Whātua from other Aucklanders, when in fact Ngāti Whātua was within its rights to close off part of the beach. He maintained that the broadcast 'incited racially driven commentary', pointing to online comments on the story which he considered perpetuated 'racist stereotypes'.
 The term 'denigration' has consistently been defined by the Authority as blackening the reputation of a class of people.3 'Discrimination' has been consistently defined as encouraging the different treatment of the members of a particular group, to their detriment.4 It is also well-established that in light of the requirements of the New Zealand Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standard.5
 For the reasons discussed in relation to the accuracy and fairness standards, we are satisfied that the broadcast did not reach the high threshold necessary to encourage discrimination or denigration. The item did not contain any invective or any element of malice directed towards Ngāti Whātua. Nor did it encourage different treatment of iwi members. It was a brief report about the closure and clearly stated that the closure was legal.
 The online comments cited by the complainant in his correspondence do depict racist attitudes towards Ngāti Whātua and/or Māori, but it cannot reasonably be said that simply by reporting the closure the item incited these comments, for the reasons we have already outlined. In any case our jurisdiction is limited to the television broadcast and does not cover this type of internet content.
 Accordingly we decline to uphold the complaint under Standard 7.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
16 June 2015
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Vincent Olsen-Reeder's formal complaint – 20 February 2015
2 TVNZ's response to the complaint – 20 March 2015
3 Mr Olsen-Reeder's referral to the Authority – 26 March 2015
4 TVNZ's response to the Authority – 1 May 2015
1 Bush and Television New Zealand Ltd, Decision No. 2010-036
2Commerce Commission and TVWorks Ltd, Decision No. 2008-014
3 See, for example, Mental Health Commission and CanWest RadioWorks, Decision No. 2006-030
4 See, for example, Teoh and Television New Zealand Ltd, Decision No. 2008-091
5 See, for example, McCartain and Angus and The Radio Network, Decision No. 2002-152