BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint referred back to the Authority by the High Court for reconsideration
Authority’s decision to uphold Standard 4 aspect of Mr Owen’s complaint (2003-055/061) referred back to the Authority by the High Court on appeal by TV3 – High Court ruled that the Authority gave TV3 insufficient opportunity to make submissions on the way in which the Authority formulated Mr Owen’s complaint

Findings on Reconsideration
TV3’s new material on government accountability considered under Standard 4 – earlier finding confirmed and complaint again upheld

This headnote does not form part of the decision.

Broadcast

[1] Allegations that the Government had been aware of the distribution of genetically modified (GM) corn, made in a book “Seeds of Distrust” published on 10 July 2002, were the subject of a 3 News Special programme broadcast on TV3 between 7.00pm and 7.30pm on that day. Interviews with the book’s author and the Prime Minister were broadcast during the programme. The interview of the Prime Minister was recorded the day before the book was published and no mention of the book was made during the interview.

Complaints

[2] Seven complainants complained to TV3 about aspects of the broadcast and, in particular, that the programme contained inaccuracies, was unbalanced and was unfair to the Prime Minister.

[3] When TV3 declined to uphold the complaints, they were referred to the Broadcasting Standards Authority. In Decision Nos: 2003-055/061 dated 3 July 2003, the Authority upheld aspects of some of the complaints that the broadcast was unbalanced, that it was inaccurate and lacked impartiality and objectivity, and that it was unfair. Having considered submissions from the parties, the Authority ordered TV3 to broadcast a statement summarising the decision, to contribute $11,000 towards the legal costs of the Prime Minister and the Chief Press Secretary, and to pay costs to the Crown totalling $14,000 (Decision Nos: 2003-077/081 dated 7 August 2003).

Appeal

[4] TV3 appealed the Authority’s findings. In its judgment, the High Court (Ronald Young J, 10 February 2004 PDF18.64 MB), upheld one aspect of the appeal. Justice Young referred back to the Authority for reconsideration its decision to uphold Mr Owen’s complaint, that the broadcast breached the balance requirement in Standard 4 of the Television Code of Broadcasting Practice.

[5] Young J made that order on the basis that the Authority had not given TV3 sufficient opportunity to respond, as required by the principles of natural justice, to Mr Owen’s balance complaint as interpreted by the Authority. In its decision, the Authority summarised its findings on the Standard 4 – balance aspect of the complaints in the following items:

[357] When determining issues of balance, the Authority notes that it is not necessary to decide the factual issues which are being debated. Rather, the balance requirement means that competing arguments must be advanced with sufficient purpose to enable a viewer to arrive at an informed and reasoned opinion.

[358] In weighing the competing arguments as to whether balance was achieved during the period of current interest on this occasion, the Authority concludes that there were two elements in the programme complained about. The Authority also took into account the high impact of the presentation. The first element was scientific concerns about the possibility of contaminated seed, and the second focused on Government accountability and trustworthiness. As the Authority considers that viewers were left to reach their own conclusion in regard to scientific issues, the first element is not upheld. However, as the Authority is of the view that reasonable efforts were not made to present significant points of view on the issue of Government accountability and trustworthiness, if finds that the second element is upheld. Accordingly , the Authority concludes, Standard 4 was breached by the broadcast as significant viewpoints were not advanced during the period of current interest to the extent necessary to counter the high impact of the strong allegations which called into question the accountability and trustworthiness of the Labour Government raised by the publication of “Seeds of Distrust”. This aspect of the complaint from Mr Owen which referred to Standard 4 is upheld.

[6] When referring the matter back to the Authority as the remedy, Young J noted that counsel appointed by the Court to act for Mr Owen contended that there was nothing which TV3 could have said which would have resulted in a different conclusion. Nevertheless, the judge said that TV3 had submitted that it had material which the Authority should take into account and, in fairness to TV3, it should have the opportunity to present the material to the Authority. He added:

I wish to make it clear, however, that on the material as considered by the BSA to date under Standard 4 their conclusions were fairly and properly open to them and no error of law can be seen in my view.

Broadcaster’s Submission to the Authority

[7] In reconsidering the complaint, in addition to the broadcaster’s submission, the Authority received the following material from TV3:

• an affidavit from Mark Jennings – Director of News and Current Affairs at TV3, and 
• an affidavit from John Campbell – the interviewer in the broadcast complained about.

[8] In its submission and in the affidavits, TV3 stressed the efforts which had been undertaken on 10 July and subsequently to obtain comment and interviews from Government spokespeople on the issue of government accountability, adding that TV3 believed that:

… the government response and its accountability for its actions were at the heart of the public interest attending the issue.

[9] It advised that while it had sent the Authority a tape of relevant items broadcast on 3 News between 10 and 15 July 2002, it did not consider that the period of current interest concluded on that date (15 July). It considered that the more likely period of current interest would have been from 10 July until the date of the general election – 27 July. However, TV3 said, it was now unable to provide a tape of relevant items between 16 to 27 July as it did not retain broadcasts for more than one year.

[10] Moreover, TV3 advised, it was not aware until the decision was released on 3 July 2003 that the Authority had dealt with the Standard 4 complaint (balance) under both scientific issues and government accountability and trustworthiness.

[11] TV3 pointed out that Standard 4 required broadcasters to make reasonable efforts, or give reasonable opportunities, to present significant points of view. Stating first that it had presented enough material to enable a viewer to understand that there were other significant points of view in addition to the ones advanced, and secondly that it had provided “generous” opportunities to government spokespeople to present their point of view, TV3 maintained that it had complied with the requirements of Standard 4. It argued:

After all the government point of view on its trustworthiness and accountability was not complex. It said then and it still maintains to this day that it did nothing wrong – it can safely be characterised as “strenuous denial”. TV3 submits that any viewer watching the programming on the events would have clearly understood that the government strenuously denied any wrongdoing.

[12] In their affidavits, Mr Jennings and Mr Campbell noted that TV3 had sought a response to the allegations contained in “Seeds of Distrust” from a senior level. Mr Jennings outlined the efforts which had been made to enable the Prime Minister to participate in a second interview, as she had requested after the first interview on 9 July. At 5.45pm on 10 July, he advised, he had been told by the Prime Minister’s office that she would not participate in a second interview and, at that stage, he had set about re-editing the item to fill the time left for the second interview. He added:

I recognise with hindsight that I could have used material other than material from the first interview. … I accept that I could have used the time available to include material from the press conference. At the time I thought only of including more footage of the Prime Minister rebutting the allegations in the original interview and I didn’t think of the footage from the news conference. In the circumstances with which I was faced using the press conference material didn’t present itself as an option. I had no access to other senior producers – they were involved in putting the news to air and I had little time to consider options. I did what I thought was best at the time. With more time to react and senior people with whom to discuss the options a different decision may have been made.

Complainant’s Submission to the Authority

[13] Mr Owen advised that his views had been advanced in his earlier correspondence. He observed that his complaint focused on Mr Campbell’s interview of the Prime Minister and not on “the ramifications of ‘Corngate’”.

Authority’s Determination

[14] The Authority’s task is to consider the relevant material which TV3 advised the High Court that the Authority should have taken into account when assessing an aspect of Mr Owen’s complaint that the broadcast of the 3 News Special on 10 July 2002 breached Standard 4 of the Television Code of Broadcasting Practice.

[15] Standard 4 reads:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[16] Mr Owen did not detail how he believed that the broadcast breached Standard 4. The Authority considered that the programme raised two issues which required balance: scientific issues and Government accountability and trustworthiness. It upheld the complaint in regard to the second matter.

[17] The material now submitted by TV3 is outlined in paras [7] to [12] above. TV3 has contended that it complied with Standard 4 by making reasonable efforts and giving government spokespeople reasonable opportunities to deal with the issue of governmental accountability and trustworthiness which, TV3 acknowledged, was a central issue canvassed in the 3 News Special complained about.

[18] Having examined the material now provided by TV3, the Authority is of the view that there is little which was not before it when it determined the complaints in the decision dated 3 July 2003 which TV3 appealed.

[19] With regard to TV3’s point that the period of current interest could well be regarded as continuing to election day (27 July 2002), the Authority accepts that the period may well have continued beyond 15 July.

[20] As for TV3’s contention that it was unable to obtain a comment on the issue of government accountability from a senior spokesperson, the Authority makes three points:

• It refers to the point made in para [355] of the decision appealed against in which it listed the matters which justified its conclusion that the programme complained about had a “high impact”, and which, it pointed out, were not matched to any substantive degree by the items which TV3 contended went to the question of balance.
• It notes that TV3 seemingly did not advise viewers at the time of the efforts which it was making to obtain a response from the Government on the matter. Rather, it included interviews with Mr Hager in which he reiterated with minimal challenge his conclusions about the government inaction.
• It acknowledges TV3’s submission that the Government was not prepared to be interviewed on the issue, but notes that there were other significant points of view which it might have sought to provide balance to the “high impact” allegations contained in the 3 News Special. The Authority considers, for example, that independent experts and political observers may have been able to explain the strengths and weaknesses of both the Government’s response and Mr Hager’s allegations.

For the reasons above, the Authority confirms its ruling made in Decision No: 2003-055/061 that the broadcast by TV3 Network Services Ltd of a 3 News Special on 10 July 2002 breached Standard 4 of the Television Code of Broadcasting Practice.

Orders

[21] In Decision Nos: 2003-077/081 the Authority imposed the following orders:

The Authority makes the following orders under s.13 and s.16 of the Broadcasting Act 1989:

1.  Pursuant to s.13(1)(a) of the Act, the Authority orders TV3 Network Services Ltd to publish a statement approved by the Authority. That statement shall:

• be broadcast on TV3 on Wednesday 3 September 2003 (or such other date approved by the Authority) within the first segment of the 6.00pm edition of 3 News and before the link to the first commercial break;
  
• be read by a presenter and appear in writing on the screen;
  
• explain that TV3 has been ordered to make the statement as a result of the Broadcasting Standards Authority’s decision to uphold complaints about the 3 News Special broadcast on 10 July 2002;
  
• clarify that the Authority, along with TV3’s Standards Committee, declined to determine the accuracy of the factual statements in "Seeds of Distrust"; and
  
• summarise comprehensively the Authority’s Decision on the complaints.

2.  Pursuant to s.16(1) of the Act, the Authority orders TV3 Network Services Ltd to make a contribution in the sum of $11,000 towards the legal costs incurred by the Prime Minister and the Chief Press Secretary. The payment shall be made within one month of the date of this Decision.

3.  Pursuant to s.16(4) of the Act, the Authority orders TV3 Network Services Ltd to pay costs to the Crown in the amount of $3500 in relation to the complaints made by the Prime Minister and the Chief Press Secretary, the Life Sciences Network Inc, David Coy, and Ivan Owen, a total sum of $14,000, within one month of the date of this Decision.

These orders shall be enforceable by the Wellington District Court.

[22] The orders were suspended when the appeals were filed. The appeal against the orders was unsuccessful except that the High Court set aside in the interim the order for $3500 costs awarded with respect to Mr Owen’s complaint.

[23] The Authority has not yet required the other orders to be fulfilled as this ruling might have affected the statement required.

[24] Now that it has considered and confirmed its ruling on the aspect referred back, the Authority requires all the Orders imposed in Decision Nos: 2003-077/081 to be complied with within one month of the date of the decision.

Signed for and on behalf of the Authority

Joanne Morris
Chair
27 May 2004

Appendix

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

1. TV3’s Submission to the Authority (and attachments) – 9 April 2004
2. Mr Owen’s Submission to the Authority – 27 April 2004