BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority upheld a complaint that a Checkpoint report summarising the complainant’s submission at a Waitematā local board public meeting was inaccurate and unfair to her. The item reported that ‘the sparks continued to fly when activist Lisa Prager described how she had claimed mana whenua status in her bid to save the trees [on Ōwairaka Mt Albert] but now regrets the move. [One] board member… refused to thank Ms Prager for her submission because, she said, her comments were “a bit racist”.’ The Authority agreed with Ms Prager that the use of the word ‘regrets’ did not accurately reflect her view expressed at the meeting: “...I retire any claim to being mana whenua whatsoever. But I have no regrets in standing up and initiating the conversation...” The Authority also agreed the manner in which the complainant’s views were reported had the potential to adversely affect her reputation and dignity, particularly alongside the suggestion that her submission was ‘a bit racist’. While audio of Ms Prager’s brief, heat-of-the-moment response to this allegation was included, given the seriousness of the accusation, and that it did not address the misreporting of her position overall, this was insufficient to meet requirements under the fairness standard.

Upheld: Accuracy, Fairness. Not Upheld: Discrimination and Denigration.

Order: Section 16(1) $1,818 legal costs to the complainant

The broadcast

[1]  An item on RNZ’s Checkpoint programme, broadcast on 25 February 2020, was introduced as follows:

A new front has opened up in West Auckland’s tree saga with the Ngāti Whātua representative delivering a stinging rebuke to the Waitematā local boards today. The plan to get rid of some 200 pine trees has already proven hugely controversial among a group of Western Springs locals, but had up until this morning been a predominantly Pākehā protest. But [a] Ngāti Whātua historian and Tikanga expert… says the local board has derailed its friendship – relationship – with the iwi by failing to consult.

[2]  The item focussed predominantly on the Ngāti Whātua representative’s claims of inadequate consultation with mana whenua and his interactions with the board members at the meeting.

[3]  At the end of the item, there was a brief reference to the complainant as follows:

…and the sparks continued to fly when activist Lisa Prager described how she had claimed mana whenua status in her bid to save the trees but now regrets the move. [One] board member… refused to thank Ms Prager for her submission because, she said, her comments were ‘a bit racist’.

[4]  A brief audio clip was then played of Ms Prager’s heated exchange with the board member, during which Ms Prager challenged the board member to justify the allegation that Ms Prager’s submission was ‘racist’.

Summary of the complaint

[5]  Ms Prager complained that the broadcast breached the accuracy, fairness and discrimination and denigration standards of the Radio Code of Broadcasting Practice because:

• ‘The news report… [was] an inaccurate, unfair item that discriminated and denigrated me and my good name in public, branding me a racist.’
• ‘I was totally misquoted in [the reporter’s] abridged version of my submission… He states that I claimed “Mana Whenua to save the trees but now regretted it”.’
• ‘This is a total misinterpretation of what I said and took two totally separate statements and joined them together. He then connected them to [the Board member] calling my comments racist.’
• ‘The damage to my good name, reputation and business is significant.’
• ‘This is the second time RNZ has misquoted me. RNZ had to remove their online comments in 2019 re Ōwairaka & myself, but did not apologise or remove the audio of this event.’

[6]  The points of complaint, as well as the broadcaster’s response, are outlined in more detail below as part of our analysis of the standards raised.

The relevant standards

[7]  The purpose of the accuracy standard (Standard 9) is to protect the public from being significantly misinformed.¹ 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.

[8]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The purpose of this standard is to protect the dignity and reputation of those featured or referred to in broadcasts.²

[9]  Ms Prager also identified the discrimination and denigration standard (Standard 6) in her complaint, saying the item ‘discriminated and denigrated me’. Standard 6 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. Ms Prager’s concerns about the impact of the broadcast on her reputation are appropriately dealt with as a matter of fairness to her as an individual, under the fairness standard (rather than in terms of discrimination against a group of people). Therefore our determination below focusses on accuracy and fairness only, and the complaint under the discrimination and denigration standard is not upheld.

Overview of the outcome

[10]  In considering this complaint, we have listened to a recording of the broadcast and we have viewed Ms Prager’s full submission at the public meeting, which is available online. We have read the correspondence listed in the Appendix.

[11]  Importantly, we have also carefully considered the right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information. This is the starting point when we come to determine a complaint that broadcasting standards have been breached.

[12]  Our task is to weigh the value of the programme against the alleged harm caused by the broadcast. We may only intervene and uphold a complaint where the resulting limitation on the right to freedom of expression is reasonable and justified.

[13]  The harm alleged in this case is inaccurate and unfair reporting of Ms Prager’s submission at the public meeting, which misrepresented her overall views as expressed and had the potential to adversely affect her reputation and dignity. While we recognise that the Checkpoint item as a whole was newsworthy and carried value and public interest, we have found that the potential harm to Ms Prager on this occasion outweighed any public interest in reporting her submission in the manner it did. We explain our reasons for this finding below.

Accuracy

[14]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate on a material point of fact, or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.³

The complaint

[15]  In the complaint referral, Ms Prager’s legal counsel made the following points in relation to accuracy:

• RNZ was clearly aware of Ms Prager’s position (from earlier reporting), that she did not ‘regret’ the stance she had taken as an interim ‘mana whenua’ in the absence of those acknowledged as mana whenua stepping forward.
• When the reporter phoned Ms Prager on the afternoon of the meeting (before the broadcast), Ms Prager ‘warned him not to misquote her’, but she was subsequently misquoted in the item.
• ‘As a result… listeners were misled into thinking that [Ms Prager] regretted her actions and… [this] undermined her credibility as a legitimately concerned activist and her motivations for initially calling herself “mana whenua”.’
• Ms Prager does not accept that this manifest inaccuracy ‘was of no moment to the story’, as submitted by RNZ. The entire item was about breach of protocols, the diminishment of mana whenua, who are the “tuturu” (real) mana whenua and the lack of consultation with mana whenua and, as part of that, the position that Ms Prager had taken.
• RNZ failed to make reasonable efforts to ensure that its news and current affairs and factual programming in this instance was accurate in relation to all material points of fact.

The broadcaster’s response

[16]  In its decision on the original complaint, RNZ did not find any breach of the accuracy standard, saying:

• In radio and written reports, it is not possible to provide a complete transcription of everything that everyone said and reports by their very nature are a summary of what occurred.
• Ms Prager’s position as reported (‘Lisa Prager described how she claimed mana whenua status to save the trees, but now regrets the move....’) was an adequate summary of her full submission to the board.
• While the latter comment with respect to the use of the word ’regrets’ may not have been entirely accurate, this would not have affected the audience’s overall understanding of what occurred at the meeting.
• The context of the report (and reporting Ms Prager’s position) was the Waitamatā Local Board being called to account by Ngāti Whātua representatives claiming their status as mana whenua and stating that the board had disrespected their position by consulting with other iwi. The majority of the report was concerned with this issue.

[17]  In its response to the referral, RNZ’s main submissions were:

• Ms Prager’s full statement at the meeting (‘I retire any claim to be mana whenua. But I have no regrets in standing up and initiating the conversation across this country…’) was ‘very confusing to report on’; a reasonable and logical interpretation of her use of the word ‘But’ in the second sentence, suggested in contrast that she did regret claiming to be mana whenua, in the first sentence.
• It conceded that the reference to Ms Prager ‘regretting’ the move was a ‘minor inaccuracy’ but overall considered it was ‘of no moment’ in the context of the full item.
• RNZ asked the Authority to note the accompanying online report did not mention ‘regret’.⁴

Our decision on accuracy

[18]  The key issue for the Authority was whether the reporter’s statement in the item, ‘Lisa Prager described how she had claimed mana whenua status in her bid to save the trees but now regrets the move’, amounted to a material inaccuracy in the context, in particular with respect to the word ‘regrets’.

[19]  Ms Prager’s relevant statement at the board’s public meeting was:

I retire any claim to being mana whenua whatsoever. But I have no regrets in standing up and initiating the conversation across this country…

[20]  The members of the Authority agreed that:

• The statement complained about was a statement of fact to which the accuracy standard applied (as opposed to being analysis, comment or opinion, which is not subject to the accuracy standard). Although the statement summarised Ms Prager’s position, it was easily verifiable by referring to her actual comments made at the meeting.⁵
• By using the word ‘regrets’ in summarising her position, the broadcaster altered Ms Prager’s intended meaning as expressed during her submission at the local board meeting. The notion of ‘regret’ is objectively very different to her statement that she ‘retired’ any claim to mana whenua status. In our view, ‘regrets’ was not the right word as it implied she acknowledged a wrongdoing. On the contrary, it was clear when viewing her full submission at the meeting that she was firm in her convictions and did not have any regrets at all about the stance she had taken.
• Although the segment referring to Ms Prager was relatively short in the context of the full item, the statement was material to listeners’ understanding of that part of the item and their impression of Ms Prager, particularly given it was broadcast alongside the audio of Ms Prager’s altercation with a board member over whether her comments were ‘racist’.

[21]  On this basis we found the item was inaccurate on a material point of fact, and we turned to the second step of determining whether the broadcaster made reasonable efforts to ensure the item was accurate and did not mislead.

[22]  Under guideline 9e to the accuracy standard, the assessment of whether the broadcaster has made reasonable efforts to ensure accuracy includes consideration of the following, where relevant:

• whether the broadcast was live or pre-recorded
• whether there was some obvious reason to question the accuracy of the programme content before it was broadcast
• whether the broadcaster sought and/or presented comment, clarification or input from any relevant person or organisation
• the extent to which the issue of accuracy was reasonably capable of being determined by the broadcaster.

[23]  Having regard to these factors, we found the broadcaster did not make reasonable efforts, on the basis that:

• The broadcast was pre-recorded, not live.
• The broadcaster used an alternative word that did not accurately reflect what Ms Prager said at the meeting, was not the word used by her, and altered her intended meaning, when viewing her full submission objectively. The broadcaster now acknowledges that the wording used amounted to ‘a minor inaccuracy’. Furthermore, RNZ has subsequently informed us that it was not the reporter’s choice of wording, but ‘in fact a sub editing change made after the reporter initially wrote the piece and spoke to Ms Prager that led to the word “regrets” being included’. This in our view compounds the issue, as greater care ought to have been taken at that level of editor review to ensure accuracy. This point was reasonably capable of being identified and verified or corrected prior to broadcast.
• An earlier RNZ article,⁶ on the protests at Ōwairaka referred to Ms Prager as having ‘retracted’ any claim to mana whenua status. In other words, her general position on the issues had previously been reported by RNZ. While we acknowledge this was three months or so before the item subject to this complaint, ‘retract’ would have been closer in meaning to Ms Prager’s choice of words at the meeting on 25 February 2020, ‘I retire my claim’, if the broadcaster considered it was preferable to paraphrase Ms Prager’s overall position.
•  As discussed further below in relation to fairness, while the reporter did contact Ms Prager on the afternoon of the broadcast (and we note in this respect that the parties’ accounts of the contents of the phone call differ), no specific comment or clarification from Ms Prager was sought or included. Only the audio clip of her altercation with one board member regarding whether she was racist was ultimately broadcast, which arguably compounded the potential harm caused by inaccurately reporting her position. She was not properly informed of what the broadcast would say about her and so was not given a chance to clarify or comment specifically regarding the way her position was being reported.
•  The accuracy of the reporter’s statement could have been easily verified by referring to Ms Prager’s actual comments made at the public meeting.

Fairness

The complaint

[24]  In her referral to the BSA, Ms Prager’s legal counsel made the following points regarding fairness:

• The reporter completely misquoted Ms Prager when he reported that she ‘regretted’ taking the position that she had, and then juxtaposed that with the recording of Ms Prager’s exchange with one of the local board members regarding whether she was a racist.
• Although Ms Prager’s strenuous repudiation of such a claim was aired (and Ms Prager does not claim unfairness in this respect), the combination of misquoting her in relation to the ‘mana whenua’ issue, with the broadcast of this altercation, unfairly portrayed her as potentially being racist and not respecting mana whenua or Māori protocols. 
• The broadcast did not adhere to Guideline 11e which states that ‘edited excerpts should fairly reflect the tenor of the overall events or views expressed’, and so she was not dealt with fairly.

The broadcaster’s response

[25]  RNZ did not find any breach of the fairness standard, saying:

• In its response to the original complaint: ‘It is understandable that if someone is accused of being “a bit racist”, issues of fairness arise. RNZ gave ample time in our report to include audio of [Ms Prager’s] statements clearly challenging that position taken by [the local board member]. It is important that the public be informed that elected representatives are making these sorts of claims and equally important that we give adequate time for the person targeted to be able to give their response. That is what occurred on this occasion…’
• In its comments on the referral to the Authority: ‘RNZ absolutely rejects that there was any juxtaposition of material in the item or that there was any other unfair treatment of Ms Prager. The majority of the item was focused on the breakdown in the relationship between the Board and mana whenua and references to Ms Prager in the report matched the chronological order of events at the Board meeting. Juxtaposition suggests that a different order of events was presented in order to bring two items closer together; that was not the case.’

Our decision

[26]  Following from our views in relation to the accuracy standard, we also found that this broadcast was unfair to Ms Prager, for the reasons that follow.

[27]  Misrepresentation of Ms Prager’s position on an issue of great importance to her clearly had the potential to adversely affect her dignity and reputation, which the fairness standard is designed to protect. Ms Prager is firm in her view that she does not ‘regret’ her stance of assuming mana whenua and she clearly explained her position in her full submission at the board meeting, including that she has ‘no regrets’. Her explanation that she was ‘retiring’ her claim to mana whenua now that the Ngāti Whātua representative had begun engaging with the board was a reasonable one. This is different to saying she ‘regretted’ it and as noted in relation to accuracy, RNZ has since acknowledged this. The context for Ms Prager’s statement summarised in the item was as follows:

'I went on and on and on [reaching out to mana whenua to engage in these issues regarding the culling of trees], until one day I went, I’ve had enough. And I stood up and I said, ‘Alright then, until such time as mana whenua will stand up and stand forward and protect our indigenous bush, insects, birds and forests, I am mana whenua’. Now I said that with all due respect and knowledge, not in an attempt to claim ownership or power or control, but to put a stake in the ground to this Council and this board that no mana whenua had stood up to help us save Western Springs or to at least engage. So when Ngāti Whātua come here today claiming ownership, I go, it is a long, long, long time after this board first initiated [this discussion]… so with all due respect there are many voices now in Auckland that must be listened to…

…I retire any claim to being mana whenua whatsoever. But I have no regrets in standing up and initiating the conversation across this country and the debate…

…I hope I put to bed this claim that I am mana whenua / that I have claims. I simply have a claim to caring about our native environment and our urban environment, and I wish this to be put to rest so that I no longer have to live under this cloud of shame that was created… because [I] dared to stand up…

[28]  RNZ broadcast only a very brief statement to summarise this position, alongside the local board member’s suggestion that it was ‘a bit racist’. While we do not think this was an issue of ‘edited excerpts’ as such under guideline 11e, we do agree with the complainant that the sentence paraphrasing Ms Prager’s overall views as expressed did not fairly capture those views. The Authority has previously noted ‘the importance of ensuring, when members of the public are quoted… that any edited excerpts broadcast maintain the integrity of the interviewee’s comments and the context in which they are said’.⁷ In our view the same principle applies in this case.

[29]  The potential harm caused as a result, was that listeners were left only with the suggestion that Ms Prager’s submission at the meeting was ‘a bit racist’, which was taken out of context, given the very brief summation of Ms Prager’s position outlined above. The broadcaster ought to have recognised prior to the broadcast that the suggestion an individual is racist is one of the most serious allegations that could be made against an individual’s character and conduct, and therefore extra caution should have been taken to ensure fair treatment of Ms Prager. It clearly had the potential to adversely affect Ms Prager’s dignity and reputation in conjunction with the misrepresentation of her position, and in the absence of any context or comment explaining her full submission to enable listeners to form their own views about her motives and why she took the stance she did.

[30]  Guideline 11b to the fairness standard states that participants and contributors should be informed, before a broadcast, of the nature of the programme and their proposed contribution, except where justified in the public interest, or where their participation is minor in the context of the programme. Guideline 11d states that, if a person or organisation referred to or portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment for the programme, before the broadcast.

[31]  We sought further comments from the complainant and the broadcaster on these points, as it appeared from the complainant’s submissions that the reporter did speak with her prior to the broadcast, but we were unclear as to the nature and contents of that conversation. The parties’ accounts of the conversation differ slightly in terms of what Ms Prager was told about the broadcast and the extent to which she was invited to comment on any aspect. We note however that the onus is on the broadcaster to demonstrate that it took reasonable steps to ensure Ms Prager was treated fairly in this respect. RNZ has advised:

RNZ’s reporter had a brief phone conversation; he called Ms Prager because as far as the reporter can remember RNZ hadn't previously reported her claiming mana whenua status. To verify that was the case, the reporter called Ms Prager. During the discussion, Ms Prager sought to know what was intended for broadcast and, from memory, it was explained RNZ was reporting on the exchange during the board meeting.

…no specific comment was sought about aspects of planned broadcast. The reporter was mindful and aware that she was sensitive about the reporting already. If Ms Prager had asked for a further right of reply, which she had the opportunity to do, the reporter advises he would have included that or at the very least talked to an editor about it, if Ms Prager had asked for this. She didn't.

…it was a background conversation and Ms Prager didn't seek to add any comment. The reporter advises he always makes it clear if he is trying to get comment on the record. In other words, RNZ does not seek a recorded interview every time we need to verify, clarify a point or seek additional comment.

[32]  In our view the broadcaster has not demonstrated that Ms Prager was adequately informed, in the interests of fairness, of the proposed nature of her participation in the broadcast, or given a fair and reasonable opportunity to comment in response. Our primary concern is the broadcaster’s suggestion that Ms Prager could have ‘asked for a further right of reply’ during the conversation and she ‘didn’t seek to add any comment’. The fairness standard is clear that the onus is on the broadcaster to ensure fair treatment of individuals and organisations taking part or referred to, and to offer them a fair and reasonable opportunity to comment if they are likely to be adversely affected by the broadcast. The reporter was not direct or detailed enough in our view in informing Ms Prager about the nature of the broadcast in relation to her, meaning it was unlikely to occur to her there was any need for her to respond. Indeed, Ms Prager’s recollection of the call does include a reference to her being ‘racist’ but she was not told her submission would be reported in one brief sentence or that the exchange with the board member would be broadcast.

[33]  Ultimately, only Ms Prager’s verbatim response to the allegation she was racist was broadcast, which was (understandably, in the circumstances) only a high-level, emotional reaction in which she challenged the board member to justify the claim and said, ‘I am many, many things but I am not a racist.’ This did not respond to the reporter’s earlier statement about her stance or her full submission, and no further comment from her was included in the broadcast which may have mitigated the potential detrimental impact on the complainant’s reputation and dignity. This was unfair.

Conclusion: Freedom of expression weighed against potential harm

[34]  Having found breaches of both the accuracy and fairness standards, we must complete our balancing exercise, weighing the important right to freedom of expression and the value of the broadcast, against the potential harm caused by the broadcast in this case.

[35]  An important consideration in assessing the value of the broadcast, is the level of public interest in the content. We recognise that the ongoing discussions about Ōwairaka and the coverage in this item of the views of Ngāti Whātua, carried high public interest.

[36]  However, our focus at this stage of our assessment, is on the particular public interest in the segment concerning Ms Prager, rather than public interest in the item as a whole. We consider that the potential harm caused by misrepresenting Ms Prager’s position and presenting the relevant part of the item in a way that was unfair to her, outweighed any public interest in the brief sentence (inaccurately) summarising her submission to the board and the audio clip of her heated exchange with one board member. The introduction to this part of the item signalled it was more concerned with the ‘sparks [that] continued to fly’ than conveying information of legitimate public concern or contributing in a meaningful way to the issues being discussed.

[37]  For these reasons, we concluded that the potential harm to Ms Prager in terms of unfair treatment, and through misrepresenting her submission in breach of the accuracy standard, outweighed the level of value and public interest in the particular segment concerning her. On this basis we find it is reasonable and justified in this case to limit the broadcaster’s freedom of expression by upholding the complaint under the accuracy and fairness standards.

For the above reasons the Authority upholds the complaint that the broadcast by Radio New Zealand Ltd of an item on Checkpoint on 25 February 2020 breached Standard 9 (Accuracy) and Standard 11 (Fairness) of the Radio Code of Broadcasting Practice.

[38]  Having upheld parts of the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the complainant and the broadcaster.

Broadcaster’s submissions on our preliminary findings

[39]  Before we consider the question of orders, we wish to address the points raised by the broadcaster in response to our provisional decision that was issued to the parties for comment on any errors or misunderstandings by the Authority.

[40]  First, RNZ seemed to be suggesting there was some significance in the way we had quoted differently in the summary and elsewhere in the decision, Ms Prager’s relevant statement to the local board public meeting. It suggested this supported its earlier point about her comments being confusing and difficult to interpret when summarising her views for the broadcast item, and that we did not give adequate consideration to its submissions on this point.

[41]  The discrepancies in the quotes was a minor error and nothing more, resulting from Ms Prager’s statement being wrongly quoted in the earlier complaint correspondence, as compared to the online video of her actual comments at the meeting. In any event we note the summary does not form part of our formal decision. The quotes have now been corrected.

[42]  We also record that we did consider RNZ’s submission that Ms Prager’s statement was confusing, however we ultimately did not agree that the summary of her position in the item was a reasonable interpretation or paraphrasing of what she had said.

[43]  Second, RNZ said it was ‘at a loss’ as to what more it could have done with respect to the fairness standard, given it had broadcast verbatim Ms Prager’s exchange at the board meeting regarding whether her comments were racist. It indicated it ‘notes that in applying the fairness standard in our future dealings with individuals that the broadcast of a person’s actuality of them speaking is no longer sufficient to meet the requirements of the standard’.

[44]  RNZ has misinterpreted the key aspect of our finding that Ms Prager was treated unfairly, namely that her overall position was misrepresented in the brief sentence in the item, meaning there was no context for the suggestion that followed that she was racist, and listeners were not given a broader understanding of her views or any comment from her – only her heated response to the board member’s allegation. Our decision does not suggest that broadcasting an individual’s comments verbatim ‘is no longer sufficient to meet the requirements of the standard’. In some cases that will be sufficient and an appropriate way to include an individual’s response, but here the audio clip of Ms Prager’s exchange responded only to the suggestion she was racist and did not respond to the earlier misrepresentation of her overall views. The Codebook guidance is clear that what amounts to a ‘fair and reasonable’ opportunity to comment and what level of comment ought to be included to meet fairness requirements, will depend on the circumstances of each case.

[45]  Related to this, we have also amended our findings to include clarification from both the complainant and the broadcaster regarding the nature of the reporter’s phone call to Ms Prager (paragraphs [31]-[32]) and the fact the broadcaster did not identify any need to properly inform Ms Prager of her proposed participation in the item, or invite her comment. As we have said above, Ms Prager was not adequately informed that her submission at the meeting would be summarised in the report or that it would be broadcast alongside the suggestion her submission was racist. The broadcaster should also have identified that this necessitated a fair and reasonable opportunity to comment on the basis it may ‘adversely affect’ Ms Prager. It is not the programme participant’s responsibility to ‘ask for a further right of reply’ as suggested by the broadcaster in its submissions.

[46]  Finally, we have amended our findings to make it clear that, as advised by RNZ, the ultimate wording of the statement in the item complained about (using the word ‘regrets’) was determined not by the reporter, but at the sub editor level. As we have said, in our view this compounds the conduct leading to the breach of the accuracy standard.

Submissions on orders

[47]  On the matter of orders, the broadcaster submitted:

• ‘…if the Authority continues to uphold the decision with respect to this complaint, [upholding the complaint]… itself is a significant step to take against the broadcaster, and we will note the precedential nature of this decision.’
• ‘…given that the bulk of the item complained about was given over to Ngāti Whātua’s dispute with the Waitematā Local Board, and the complexities of the issues that Ms Prager had been involved with, it would be somewhat counterproductive to broadcast anything in relation to the Authority's decision’.
• However, ‘If it would be helpful, RNZ would be happy… to annotate the online version of the story to note that the BSA has made this decision with respect to aspects of the original broadcast.’

[48]  The complainant submitted that orders are warranted in this case, on the grounds that:

• ‘The damage to Ms Prager’s good name, reputation and business was and is significant.’
• This was the second time RNZ had misquoted Ms Prager.
• The broadcaster failed to make reasonable efforts to ensure the broadcast was accurate.
• The misleading statement of Ms Prager’s position was material to the broadcast.
• The inclusion of the audio clip regarding whether the complainant was racist compounded the harm caused.
• Misrepresenting Ms Prager’s position clearly had the potential to impact her dignity and reputation.
• ‘RNZ exacerbated the harm it caused, continuing to refuse to take responsibility for its lack of accuracy and fairness’, despite acknowledging in the complaint correspondence that the statement in the item ‘may not have been entirely accurate’.
• ‘RNZ’s position is in sharp contrast to that taken by the Authority, namely, The broadcaster ought to have recognised prior to the broadcast that the suggestion an individual is racist is one of the most serious allegations that could be made against an individual’s character and conduct…’

[49]  Ms Prager requested the following orders, ‘Because of the seriousness of the impact on her reputation, integrity and her community advocacy and her concern that RNZ will continue to misrepresent her words, position and activities’, and because she considered such orders as follow ‘would serve to mitigate the harm caused to Ms Prager, the expense she has incurred in defending herself and encourage RNZ and other broadcasters to adhere to the requirements of accuracy and fairness’:

• A statement summarising the Authority’s findings, including an apology, to be broadcast on Checkpoint with the same prominence as the original item, and made available online on RNZ’s website below the relevant article and attached to the relevant broadcast, as long as either or both remain online.
• Alternatively the statement and the apology, together with Ms Prager’s submission to the Waitemata Local Board explaining her use of the words, “mana whenua”, to be made available in substitution for the relevant items and also on RNZ’s Facebook page and its other social media platforms.
• Costs to the Crown of up to $5,000: to indicate the seriousness of the broadcaster’s breach of the accuracy and fairness standards (‘two fundamental tenants of broadcasting news’); as a deterrent to RNZ’s repeated lack of accuracy in reporting events involving Ms Prager; and as a meaningful signal to broadcasters generally.
• Contribution of $5,000 +GST to Ms Prager’s legal costs, being a total of $6,059.07 (including GST). Ms Prager is a private citizen who should not have had to incur such costs to protect her reputation from the actions of a national broadcaster.

Authority’s decision on orders

[50]  When deciding whether to impose an order and the type of order to impose, the Authority considers relevant factors, which may include:

• the seriousness of the breach and the number of upheld aspects of the complaint
• the degree of harm caused to any individual, or to the audience generally
• any repetition of the breach or previous warning by way of precedents
• the attitude and actions of the broadcaster in relation to the complaint (eg whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated the breach and any harm caused)
• whether the decision is unanimous or by majority
• whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
• the length of time since the programme was broadcast and the potential damage resulting from reviving old issues or information
• past decisions and/or orders in similar cases.

Broadcast statement

[51]  Considering first the complainant’s request for a broadcast statement and an apology, we note such an order is typically made where we consider publication of the decision is insufficient to publicly denounce the breach of broadcasting standards, censure the broadcaster, or rectify the harm caused. Having regard to the factors listed above, we have determined that in this case publication of the decision on the Authority’s website and through our other communication channels, along with the broadcaster’s offer to annotate the corresponding online material, is sufficient to achieve these aims and a broadcast or published statement is not warranted.

[52]  The key factors that have contributed to this view are:

• While we have upheld the complaint under two standards, the primary issue on which the complaint turned was the use of the word ‘regrets’, being a relatively narrow point. We would therefore categorise the level of seriousness of the breach as ‘low-medium’ on the spectrum.
• In the course of the complaint correspondence, the broadcaster has explained that it was ‘confused’ by Ms Prager’s position and acknowledged that the choice of wording in the item was not accurate. It has also indicated it will accept the Authority’s decision and note the precedent it sets. We do not think this was a wilful or intentional breach, which reduces the need for a broadcast statement to censure the broadcaster or for punitive effect.
• The factual background to this case is unique and our decision provides tailored guidance to RNZ regarding the particular circumstances. In this respect a more general broadcast statement summarising the upheld aspects of the decision would not be effective in providing guidance to the wider broadcasting sector about the application of the standards in this case (although we encourage all broadcasters to read the Authority’s decisions).
• The primary harm is deeply personal to Ms Prager, rather than seriously misleading the audience, meaning the justification for using a broadcast statement to rectify the inaccuracy is reduced.
• While the Authority has the power to require a broadcast statement, which may include an apology, we do not have the power to order the broadcaster to apologise to the complainant. However, we acknowledge the broadcaster’s offer to annotate the corresponding online materials to point the public to the Authority’s decision upholding Ms Prager’s complaint, and encourage it to take this step and link the decision against both the written article and the audio for as long as they are available online.

Costs to the Crown

[53]  Costs to the Crown (up to $5,000) are usually ordered where a broadcaster’s conduct resulting in a breach of standards is at the medium-to-serious end of the spectrum, and the Authority determines a punitive response is required. For the reasons we have outlined above, we do not think costs to the Crown are warranted in this case.

Legal costs

[54]  Costs awards are generally granted to compensate, in part, a successful complainant for legal costs which have been incurred.⁸ In all but the most exceptional cases, the most that is likely to be recoverable in an award of costs is a contribution to the costs actually incurred.⁹

[55]  The factors to be taken into account in assessing whether costs are appropriate, and in what amount, are:¹⁰

• the complexity of the issues raised
• the number of issues raised
• the complexity of the factual background
• the number of substantive submissions that needed to be made
• whether the proceeding required resolution of any interlocutory or procedural issues
• the need for the complainant to have incurred costs to the extent that costs were incurred or at all
• the amount of costs incurred
• the nature and importance of the complaint to the complainant
• the public interest in the complaint.

[56]  Ms Prager has requested a contribution of $5,000 to the legal costs she incurred, totalling $6,059.07 plus GST. Her counsel has provided us with evidence verifying the cost incurred. As noted above, our guidance to complainants on costs awards is clear that only a portion of legal costs reasonably incurred is likely to be awarded.

[57]  In the circumstances, we consider an award of a portion of Ms Prager’s legal costs is appropriate. In determining that an award of costs is appropriate, and the amount to be awarded, we have taken into account the following factors:

• As we have noted in the decision, the complaint was of particular importance to the complainant in terms of preserving her reputation and dignity. It was therefore reasonable for her to seek legal advice and assistance with her complaint.
• We have upheld Ms Prager’s complaint under the accuracy and fairness standards, but not under the discrimination and denigration standard.
• As we have said above, the primary issues raised in the complaint were relatively narrow (the use of the word ‘regrets’ and the failure to give Ms Prager an opportunity to comment). These were not overly complex issues.
• Ms Prager’s counsel provided thorough submissions at each stage of the complaints process.

[58]  Taking all of the above factors into account, we consider that an order of costs in the amount of $1,818 is appropriate, being 30% of the total costs incurred.

Order

Under section 16(1) of the Act, the Authority orders Radio New Zealand Ltd to pay to the complainant costs in the amount of $1,818 within one month of the date of this decision.

The order for costs is enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair
28 September 2020

Appendix

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

1  Lisa Prager’s original complaint email to RNZ News – 26 February 2020

2  Further email correspondence between Ms Prager and RNZ News regarding the complaint – 26-27 February 2020

3  Ms Prager’s formal complaint to RNZ – 4 March 2020

4  RNZ’s formal decision on the complaint – 9 April 2020

5  Ms Prager’s referral to the Authority – 5 May 2020

6  RNZ’s response to the referral – received 22 June 2020

7  Ms Prager’s final comments – 1 July 2020

8  Clarification from the complainant regarding correspondence about earlier RNZ item on 29 November 2019 – 2 and 6 July 2020

9  Ms Prager’s submissions on Authority’s Provisional Decision and orders – 13 August 2020

10  RNZ’s submissions on Authority’s Provisional Decision and orders – 13 August 2020

11  Further comments from RNZ regarding complainant’s supporting information for nature of phone call with reporter – 21 August 2020

12  Ms Prager’s response – 24 August 2020

¹ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
² Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
³ Commentary: Accuracy, Broadcasting standards in New Zealand Codebook, page 19
⁴ https://www.rnz.co.nz/news/national/410335/waitemata-local-board-gets-dressing-down-from-ngati-whatua-historian-over-tree-removal-plan (25 February 2020)
⁵ Guidance: Distinguishing fact and analysis, comment or opinion, Broadcasting Standards in New Zealand Codebook, page 64
⁶ https://www.rnz.co.nz/news/te-manu-korihi/404400/owairaka-restoration-rift-grows-between-protesters-and-tangata-whenua (29 November 2019)
⁷ Basham and MediaWorks TV Ltd, Decision No. 2017-061 at [13]
⁸ Guidance: Costs awards to complainants, Broadcasting Standards in New Zealand Codebook, page 66
⁹ As above
¹⁰ As above, page 67