BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has not upheld a complaint that various 1 News items referring to Joe Biden as the ‘president-elect’ before confirmation by the United States Electoral College breached the balance, accuracy and fairness standards. The Authority found this was a technical distinction that would not have altered viewers’ overall understanding of the items, therefore it was not a ‘material’ point of fact for the purposes of the accuracy standard. To the extent the items touched on the outcome of the United States election, which in some circumstances may amount to a controversial issue of public importance triggering the balance standard, the Authority was satisfied the standard was not breached taking into account the perspectives acknowledged within the items as well as in a wide range of other coverage both by TVNZ and media generally. The Authority also found the items did not result in any unfairness to President Donald Trump.

Not Upheld: Accuracy, Balance, Fairness

The broadcasts

[1]  Items on 1 News on 9, 12, 13, 14 and 15 November 2020 reported on post-election developments in the United States (US). The items covered a range of related topics including reactions to Joe Biden’s ‘win’ in the election both in the US and internationally, that President Donald Trump had yet to concede, the worsening COVID-19 situation in the US and Mr Biden’s plans for combatting that. Throughout the items, Mr Biden was referred to as the ‘president-elect’, for example:

• ‘Plans are moving quickly for Joe Biden to take over the White House and the US presidency as Donald Trump stubbornly refuses to concede. The president-elect’s first and biggest priority, forming a coronavirus task force tonight as COVID explodes again across America.’ (9 November 2020)
• ‘…this comes as President-elect Joe Biden widens his lead with the latest projections…’ (14 November 2020)
• ‘President-elect Joe Biden… is maintaining a very low profile with regards to any calls about this being a rigged election…’ (15 November 2020).

The complaint

[2]  Barry Povey complained that referring to Mr Biden as the ‘president-elect’ breached the accuracy, balance and fairness standards:

• Mr Biden was not ‘by law or custom [president-elect] until the ballots are counted and the Electoral College has declared him to be [president-elect].’
• Mr Trump is repeatedly only referred to negatively and not given credit for anything positive.
• ‘The reporting was not even handed nor did it reflect the real doubt and concern that many millions of Americans have regarding the fair media reporting and the legality of the voting.’

The broadcaster’s response

[3]  TVNZ did not uphold Mr Povey’s complaint for the following reasons:

Accuracy

• ‘[President-elect] is a term used in the US to refer to a candidate that has won the presidential election but who has not yet been inaugurated. Joe Biden won the 2020 US presidential election and therefore is commonly referred to as [president-elect]. US presidential election winners before Mr Biden, including Donald Trump and Barack Obama, were referred to in the same way prior to their inauguration.’
• ‘The Committee understands that the Electoral College vote has yet to take place and that the result of the election has yet to be formally affirmed, but we consider that to be an immaterial distinction. The intended meaning of [president-elect] in the context of the items was clear and would not have resulted in viewers being misinformed.’

Balance

• The US presidential election is not a controversial issue of public importance; it is not an issue which has occasioned ongoing public debate in New Zealand.
• ‘In any case we note that the programmes included a range of significant points of view, including from Donald Trump, and met the standard for balance.’
• ‘The US election has been covered extensively in New Zealand media. The Committee is satisfied that it is reasonable to expect that viewers would have a broad understanding of the main perspectives that exist in relation to the issue.’

Fairness

• For the reasons outlined under Accuracy, using the term ‘president-elect’ to refer to Mr Biden also did not breach the fairness standard.
• TVNZ disagreed Mr Trump was only featured negatively, noting examples of positive coverage within the items complained about: ‘President Trump was recognised for attending the Tomb of the unknown soldier on Veterans Day in the broadcast of 12 November, and in the 1 News broadcast of 14 November President Trump is heard talking about how his administration enabled Covid-19 vaccine production “in record time” and how the economy was doing well, the broadcast of 9 November talked about President Trump’s popularity with some world leaders.’
• ‘The Committee further notes on this point [the complaint that Mr Trump only features negatively in the news] that news providers can only report what has occurred or is occurring.’

The standards

[4]  The purpose of the accuracy standard¹ is to protect the public from being significantly misinformed.² It states that broadcasters should make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.

[5]  The balance standard³ states that 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 points of view either in the same programme or in other programmes within the period of current interest. It ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.⁴

[6]  The fairness standard⁵ states broadcasters should deal fairly with any person or organisation taking part or referred to in any broadcast. It ensures individuals and organisations are dealt with justly and fairly and protected from unwarranted damage.⁶

Our analysis

[7]  We have watched the broadcasts and read the correspondence listed in the Appendix.

[8]  Our starting point is to recognise the important right to freedom of expression, which includes both the broadcaster’s right to offer ideas and information, and the audience’s right to receive those. Our task is to weigh the right to freedom of expression, in terms of the value and any public interest in the broadcast, against any harm potentially caused by the broadcast.⁷ We may only intervene and uphold a complaint where that places a reasonable and justified limitation on the right to freedom of expression, in light of the potential harm.

[9]  For reasons that follow, we have not found actual or potential harm in this case that justifies regulatory intervention or limiting the right to freedom of expression.

Accuracy

[10]  Mr Povey’s primary concern is that it was not correct for 1 News to refer to Mr Biden as the ‘president-elect’ before all ballots had been counted and the Electoral College had officially declared Mr Biden ‘president-elect’.

[11]  The accuracy standard is concerned only with ‘material’ points of fact. Technical or unimportant points that are unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.⁸

[12]  ‘President-elect’ is an unofficial term without a defined set of rules for its use or application.⁹

[13]  As an unofficial term, ‘president-elect’ has been widely used to describe US presidential election winners, including Mr Trump, prior to Electoral College confirmation or inauguration, and from as early as election night.¹⁰ On at least two occasions, this term was used to describe candidates who were believed to have won the election, but ultimately were found not to have done so.¹¹

[14]  Whether or not Mr Biden’s election win had been formally affirmed by the Electoral College was an immaterial distinction that would not have affected viewers’ understanding of the items overall and the broad range of topics covered.

[15]  In any event, it was clear from the items that the final results of the election were still unfolding and that the Electoral College had not yet confirmed a winner. The first of these items on 9 November 2020 contained a clear explanation of the pending electoral process (including the Electoral College’s voting process): ‘…And if it all goes to plan, Joe Biden’s inauguration would take place on January the 20th’. The reports were also clear Mr Trump had not yet conceded and Mr Trump and his supporters were disputing the results of the elections.

[16]  We therefore do not uphold this part of the complaint, as, in the context, the description of Mr Biden as president-elect was not materially inaccurate or misleading.

Balance

[17]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. 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’.¹²

[18]  The concerns raised in Mr Povey’s complaint (the use of the term ‘president-elect’; his view the items overall were ‘not even-handed’; and his general observation Mr Trump is ‘only in the news negatively and never given any credit for anything positive’) do not amount to controversial issues of public importance that triggered the requirements of the balance standard.

[19]  To the extent the items touched on the outcome of the US election, which we have accepted in particular circumstances could amount to a controversial issue of public importance,¹³ we are satisfied there was no breach of the balance standard for the following reasons:¹⁴

• These items were a series of straight news reports on the latest developments following the US election, covering a wide range of related topics including Mr Biden’s plans to combat COVID-19, international reactions to the outcome of the election, and the coronavirus situation in the US.¹⁵ The items did not purport to be an in-depth, balanced discussion of all aspects of the election or any dispute or allegations of illegality around the election and voting process.
• As noted by the broadcaster, the items did contain references to Mr Trump which reflected positively on him, and the remainder simply reported on developments and Mr Trump’s position as that unfolded.
• Regarding Mr Povey’s concern the items did not ‘reflect the real doubt and concern that many millions of Americans have regarding the fair media reporting and the legality of the voting’, the items clearly acknowledged the continuing dispute over the election outcome from the perspective of Mr Trump, his supporters and some international leaders who were yet to acknowledge Mr Biden’s ‘win’.
• Additionally, the standard allows for balance to be achieved over time.¹⁶ TVNZ provided a wide range of coverage of the election results throughout the period of current interest, including from the perspectives of Mr Trump and his supporters.¹⁷
• The results of the US presidential elections were also widely covered by other media outlets, locally and internationally (many media outlets also provided live updates throughout the period).¹⁸ Viewers could therefore reasonably be expected to have a broad understanding of the main perspectives.

[20]  In these circumstances we have not found any harm that justifies regulatory intervention and we do not uphold the balance complaint.

Fairness

[21]  We interpret Mr Povey’s complaint under this standard as being that, by referring to Mr Biden as president-elect, and ‘taking a position negative to only one side of this story’, the items were unfair to Mr Trump.

[22]  A consideration of what is ‘fair’ depends on the nature of the programme and the context.¹⁹ Also relevant is the nature of the individual concerned. The threshold for finding a breach of the fairness standard in relation to experienced, high-profile public figures and politicians like Mr Trump is higher than for a layperson or someone unfamiliar with the media.²⁰

[23]  For the same reasons we have outlined above, we do not consider anything in the items went beyond what Mr Trump could reasonably expect from media reporting on the elections, or resulted in any unfairness to him. These were straightforward news reports covering the latest developments following the US election as they unfolded. As noted by the broadcaster, some elements of the items portrayed Mr Trump positively.

[24]  Accordingly we do not uphold the complaint under the fairness standard.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

25 May 2021    

Appendix

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

1  Barry Povey’s formal complaint to TVNZ – 16 November 2020

2  TVNZ’s response to the complaint – 11 December 2020

3  Mr Povey’s referral to the Authority – 14 December 2020

4  TVNZ’s confirmation of no further comments – 1 March 2021

¹ Standard 9 of the Free-to-Air Television Code of Broadcasting Practice
² Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
³ Standard 8 of the Free-to-Air Television Code of Broadcasting Practice
⁴ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁵ Standard 11 of the Free-to-Air Television Code of Broadcasting Practice
⁶ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁷ Commentary: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
⁸ Guideline 9b
⁹ Karina Bolster “Decision 2020: The meaning behind ‘President-elect’” NBC 12 (online ed, Virginia, 10 November 2020)
¹⁰ “Fact Check: Previous presidents have used ‘Office of the President Elect’’ Reuters (online ed, 19 November 2020); “The Guardian view on President-elect Donald Trump: a dark day for the world” The Guardian (online ed, 9 November 2016); John Cassidy “How Donald Trump Became President-Elect” The New Yorker (online ed, 9 November 2016)
¹¹ Benjamin Pollard “1916: The presidential election The Herald got wrong” The Brown Daily Herald (online ed, United States, 29 October 2020)
¹² Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹³ Lobb and Television New Zealand Ltd, Decision No. 2020-154 at [12]
¹⁴ Guideline 8c
¹⁵ Gould and Radio New Zealand Ltd, Decision No. 2020-070 at [10] to [12]. See also Rose and Television New Zealand Ltd, Decision No. 2018-078 at [20]
¹⁶ Guideline 8b and Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹⁷ For example: “TVNZ to air US Election Special live from NZ, US and UK” 1 News (online ed, 22 October 2020); “America votes: 1 News will bring you extensive coverage of today’s presidential election on air and online” 1 News (online ed, 8 November 2020); “Still no result in US presidential election as supporters grow restless” 1 News (online ed, 4 November 2020); “We the people will not be bullied – Joe Biden says he’s confident US election won’t be undermined” 1 News (online ed, 4 November 2020); see also Lobb and Television New Zealand Ltd, Decision No. 2020-154 at [14]
¹⁸ See for example: “US Election 2020: Review a dramatic day that ends in deadlock” RNZ (online ed, 4 November 2020); “As it happened: US election results: Donald Trump or Joe Biden – Americans decide their next President” Newshub (online ed, 4 November 2020); “US Election results: Donald Trump v Joe Biden – the race to be President” The New Zealand Herald (online ed, 6 November 2020); “US Election 2020” BBC (online ed); “Presidential Election Results: Biden Wins” New York Times (online ed, 3 November 2020); “Presidential Election Results” Politico (online ed)
¹⁹ Guideline 11a
²⁰ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21