BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989

The Complaint
A viewer complained that a 3 News item on the Electoral Finance Bill was misleading and inaccurate when it said, first, that "new rules will stop big election donors from staying anonymous", and second, that "according to the new rules, donations over $10,000 can no longer be anonymous”

In fact, the Bill did nothing to prevent big election donors to political parties from staying anonymous, and there was nothing new about the $10,000 threshold for declaring donations to political parties.

The Broadcaster’s Response
TVWorks said the statements were part of the introduction to the item, and that viewers would have understood from the entire item that the first statement applied to new rules about third party spending, while the second statement referred to the fact that anonymous donations over $10,000 would need to be declared but could still be made anonymously.

The broadcaster conceded that the item might have had a different emphasis and introduction "with the benefit of careful study and the luxury of time", but argued that the accuracy standard should recognise the reality of news reporting under pressure. Against the background of a late-breaking story and in circumstances where the government was being "rather evasive", the item was not "materially misleading" as the first report on legislation that had just been released.

The Authority’s Decision
The Authority said the item would have left reasonable viewers with the impression that new rules in the Electoral Finance Bill would prevent people making large, anonymous donations to political parties.  
This was incorrect. The Bill had not changed the rules about disclosing anonymous donations to political parties; donations could still be made anonymously irrespective of the amount.

Standard 5 (accuracy) – upheld  

No Order – decision clarifies correct position at the time; Electoral Finance Bill since redrafted and subject to further publicity.

This headnote does not form part of the decision.

Broadcast

[1]  An item on 3 News, broadcastat 6pm on 23 July 2007 on TV3, stated that the Government had announced plans to change the rules governing election spending. It noted that there had been “outrage over political parties’ spending during the last election”, particularly a “million dollar campaign” funded by the Exclusive Brethren supporting the National Party. The item included quotes from a press conference held by Justice Minister Mark Burton in which he stated that the Bill’s provisions put all parties on a level playing field. The reporter said:

According to the new rules, donations over $10,000 can no longer be anonymous. Third parties like the Exclusive Brethren can spend no more than $60,000 in an election year. But, donations can be made anonymously to trusts. The trust will be named as the donor.

[2]   The item reported that, following the general election in 2005, every political party except the Progressive Party had been found guilty of overspending. It said that the Government was “being shy about which parties it consulted with” over the Bill, and the reporter concluded the item by saying:

Prompting the move is the million dollar helping hand National got from the Exclusive Brethrens. Now cash-strapped Labour doesn’t want lobby groups with big pockets campaigning against it. But, anonymous donors can still find a way through the loopholes.

Complaint

[3]   Steven Price, with the support of the Coalition for Open Government, lodged a formal complaint about the accuracy of the item with TVWorks Ltd, the broadcaster. First, Mr Price complained that the statement “the new rules will stop big election donors from staying anonymous” was misleading. He contended that viewers would understand this statement as including donations to political parties. While he accepted that the Electoral Finance Bill did change the rules regarding third party campaigns (such as those of the Exclusive Brethren), the complainant asserted that it did not change the rules about anonymous donations to political parties’ campaigns.

[4]   Mr Price argued that there was nothing in the Bill to prevent big election donors to political parties from staying anonymous. He noted that this statement was part of the item’s introduction and was therefore particularly important. Further, he said, it was not attributed to anyone but stated as fact.

[5]   Second, the complainant maintained that the statement “according to the new rules, donations over $10,000 can no longer be anonymous” was inaccurate. He argued that the statement seemed to be talking about donations to political parties, and acknowledged that, under the current rules, political parties had to disclose donations over $10,000. However, Mr Price said, the required disclosure was of the fact of the donation and its amount, not the identity of the donor. The political party could simply list it as “anonymous”.

[6]   The complainant said that this could be contrasted with the new rules governing third parties such as the Exclusive Brethren. They could not accept anonymous donations over $500 and, in fact, if they received one they would have to give it to the Chief Electoral Officer. Mr Price argued that “it can be truly said of third parties that donations over $500 ‘can no longer be anonymous’. But that can’t be said of donations to political parties”.

[7]   In addition, Mr Price stated that there was nothing “new” about the $10,000 threshold for declaring donations for political parties. The Bill simply reproduced the existing system, he said.

[8]   In the complainant’s view, the item fundamentally misrepresented the contents of the Bill which was, he said, a very important Bill as it went “to the heart of our democracy”. He maintained that viewers would have thought that the Bill contained restrictions on donations to political parties and secret trusts when, in fact, it had neither. At the very least, the complainant wrote, viewers would have thought the Bill had some significant “new” rules about political party donations when it essentially replicated the existing regime.

[9]   Mr Price stated that he had some sympathy for the reporter, as the contents of the Bill had not been clearly described by the Government and the Justice Minister had been “rather evasive” at the press conference. However, he said, the Government did not make the claims that were the subject of his complaint and, even if it did, the news item had asserted the statements as fact rather than attributing them to the Government.

Standards

[10]   TVWorks assessed the complaint under Standard 5 of the Free-to-Air Television Code of Broadcasting Practice, which provides:

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Guidelines

5a    Significant errors of fact should be corrected at the earliest opportunity.

5b    Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

5c    Broadcasters must ensure that the editorial independence and integrity of news and current affairs is maintained.

5d    Factual reports on the one hand, and opinion, analysis and comment on the other, should be clearly distinguishable.

5e    Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.

Broadcaster's Response to the Complainant

[11]   TVWorks referred to Mr Price’s contention that the two statements in the item’s introduction were misleading because the Bill did not prevent donors from being anonymous. It asserted that the Bill did require disclosure of donations in excess of $10,000, and said that the item had made it clear that “anonymous donors can still find a way through the loopholes”.

[12]   The broadcaster considered that the summary in the item’s introduction was not misleading in the context of the entire item, which had made it clear that donors could still hide within a trust and donate large sums to political parties.

[13]   TVWorks stated that the reporter had read the Bill and had checked the statements for accuracy with the Finance Minister’s office. It considered that viewers would have understood from the entire item that the Bill sought to introduce new rules about third party election spending and that anonymous donations would need to be declared, but could still be made anonymously.

[14]   The broadcaster disagreed with Mr Price’s contention that viewers would have taken the item to mean that there were “restrictions on donations and secret trusts”. On the contrary, it wrote, the item had made it explicit that trusts were allowed and there were no restrictions on the quantum of donations.

[15]   In TVWorks’ view, against the background of a late-breaking story and in circumstances where the Government had been “rather evasive”, the short news item had adequately captured the information and accurately imparted it to viewers. The broadcaster found that the item did not contain any material inaccuracies. It wrote:

The requirements of broadcasting standards should be closely tied to the context and circumstances of the reporting – this was not a carefully prepared and researched current affairs item (nor was it an article for a law journal or even a media blog!) where you might expect a more detailed and carefully phrased summary of this rather difficult piece of legislation – this was news reporting under pressure in the run up to the 6pm news programme.

[16]   The broadcaster considered that the application of standards should reflect the reality of the report, including the fact that it was simply the first in a series of reports which had considered the Bill in greater detail. It concluded that the two statements complained about would not have misled viewers in breach of Standard 5, adding:

Taken on their own without the context of the balance of the item they appear at odds with some of the information in the rest of the item and the wording of the Bill, but it is inappropriate to separate out two comments in the introduction to the item and consider them in isolation to the remainder of the item.

Referral to the Authority

[17]   Dissatisfied with TVWorks’ response, Mr Price referred his complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989 with the support of the Coalition for Open Government. He reiterated his view that the thrust of the 3 News item was that there was something “new’ in the Bill about donations to political parties, as it was in the item’s introduction (“new rules will stop big election donors from staying anonymous”) and repeated about halfway through the item (“donations over $10,000 can no longer be anonymous”). He wrote:

There is, however, nothing in the Bill that requires the identities of donors to political parties to be disclosed where they weren’t before. The rules are the same. They are simply replicated in the Bill.

[18]   The complainant acknowledged that the item talked about donations still being able to be made anonymously to trusts. However, he said that the Coalition for Open Government believed this was inadequate for the following three reasons:

The statements in the item seemed to relate only to donations to third parties. Viewers would have understood that, while donations to political parties could no longer be anonymous under the Bill, the secret trust remained a loophole in the rules about third parties.

Even if the statements could be taken as referring to donations to political parties too, the item still left the impression that the Bill made some sort of change, and that the change tightened the rules about donor anonymity in some way. Otherwise, the introduction would not have talked about ‘new rules” that attacked anonymity. There were no new rules requiring disclosure of the identities of donors with respect to political parties.

TVWorks argued that the story was about “third party election spending and that anonymous donations (would need to be declared) but could still be made anonymously”. If viewers did understand the item this way, it would be even more misleading. Donations to third parties could not be made anonymously. Under the Bill, there were new provisions targeted at preventing donations to third parties through secret trusts – provisions that did not apply to donors to political parties. Contrary to TVWorks’ submissions, and the item, secret trusts were not allowed.

[19]   Mr Price noted that TVWorks had not pointed to any items broadcast subsequently that accurately clarified the concerns raised in his complaint. If it could do so, he said, he would consider withdrawing the complaint.

[20]   The complainant did not accept TVWorks’ “excuses” that the item was not a carefully researched current affairs item. He wrote that if the information had come from the Finance Minister, it should have been attributed to him. Further, if it was not carefully researched, he contended that it should not have been broadcast. Mr Price said:

The public would be better served by an accurate report the following day than an immediate, but misleading one. The BSA would be doing the public a disservice by permitting these sorts of excuses as exceptions to the accuracy standard.

Broadcaster’s Response to the Authority

[21]   In response, TVWorks stated that the 3 News reporter had acknowledged that her investigation and research were “top level” rather than in-depth due to time constraints. She had relied primarily on information from the Finance Minister and his officials, it said, which were reliable sources of information. Given the two-hour timeframe in which the material was produced, TVWorks contended that it was acceptable journalistic practice to rely on the information provided by a reliable source.

[22]   The broadcaster agreed that, “with the benefit of careful study and the luxury of time” to analyse the provisions of the Bill, a different emphasis and introduction might have resulted. However, it wrote, television news journalists worked under significant time constraints and announcements of complicated legislation had to be reported as they happened – not the next day when the journalists might better understand the detailed provisions of that legislation.

[23]   TVWorks stated that it could provide details of additional reports concerning the Bill which had been broadcast in August and October 2007 but, it said, the material was somewhat “off the point” of the complaint, so it was not strictly relevant.

[24]   In the broadcaster’s view, the accuracy standard “must recognise the reality of news reporting as opposed to in-depth current affairs journalism”, as news journalists had to report “to the best of their ability on the information that they can reasonably gather in time”. It considered that the news report was not materially misleading as the first report of legislation that had just been released. It added:

The public is well served by having the legislation brought to its attention even if the more detailed analysis must come from other reporting and the work of interest groups such as the group represented by [the complainant].

[25]   TVWorks contended that the purpose of the accuracy standard was to ensure that journalists took “all reasonable care to obtain accurate material for broadcast”. It considered that the reporter should have been able to rely on a summary from the Minister responsible for the legislation, and it maintained that Standard 5 was not breached.

Complainant’s Final Comment

[26]   Mr Price noted that TVWorks was arguing that the item was based on information from officials and the Minister, and stated that he would be interested in viewing that material to see whether it contained the same errors as reported in the item. He wrote:

We are troubled that TV3 appears to believe that reporting quickly is more important that reporting accurately. Thousands of viewers were getting their information about this very important Bill from this broadcast. It was not a “developing story”, but one where all the information was there to be seen. If TV3 did not have time to assure itself of the accuracy of what it was broadcasting, it should not have presented that material in such compelling, baldly informational terms. We would have thought the appropriate response would be to quote the Minister or officials characterising the Bill and its contents (to the extent they did), and/or talk in general terms about the Bill until TV3 could be sure that what it was saying was accurate. The story was still news the next day.

Alternatively, if TV3 had quickly and publicly corrected its initial mistakes when we drew it to TV3’s attention, he would not be complaining now.

[27]   The complainant contended that it would be “an unprecedented move” for the Authority to excuse a significant inaccuracy on the grounds that the source was reliable and there wasn’t much time to check the facts. He stated that the broadcaster had put the weight of its own authority behind the statements – rather than attributing them to another source – and in these circumstances there could be no exception to the accuracy standard.

Broadcaster’s Final Comment

[28]   TVWorks reiterated its view that the accuracy standard was about reasonableness, and that the complainant sought to apply a standard that was too high in the context of a rapidly developing news story. It stated that a correction would have been broadcast if the Standards Committee had felt that there had been a breach of standards.

Further submission from the Complainant

[29]   Mr Price wrote that the Coalition for Open Government was only asking for accuracy on two significant points in a significant news story; it was not seeking a “detailed examination of the Bill”. He stated that a summary, which did not contain material inaccuracies that were unattributed to any source, was perfectly acceptable.

[30]   With respect to 3 News’s information source, Mr Price noted that the broadcaster had not provided details of the material it said had emanated from the Minister of Finance’s office that made the same errors as the broadcast. He noted that the press release and questions and answers released by the Ministry did not contain these errors.

Authority's Determination           

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

[32]   At the outset, the Authority addresses TVWorks’ argument that the accuracy standard requires “reasonable” standards of accuracy. However, the broadcaster is asking the Authority to apply a less stringent standard of accuracy than is required by the current Code of Broadcasting Practice. Standard 5 requires absolute accuracy on points of fact; it is not sufficient for a broadcaster to show that it made “reasonable efforts” to be accurate.

[33]   Against this background, and having read the relevant portions of the Electoral Finance Bill which was released on 23 July 2007, the Authority turns to consider the two statements which the complainant alleges were inaccurate.

“The new rules will stop big election donors from staying anonymous.”

[34]   The Authority notes that the above statement was contained in the introduction to the item, which said:

The government’s announced its plans to change the rules governing election spending. There was outrage over political parties’ spending during the last election, and the million dollar campaign by the Brethren.

The new rules will stop big election donors from staying anonymous.

[35]   In the Authority’s view, whether or not viewers understood the distinction between donations to third parties like the Exclusive Brethren and direct donations to political parties, reasonable viewers would have understood the statement about election donors as applying to all donors, including those donating to political parties. Overall, it considers that viewers would have been left with the impression that new rules in the Electoral Finance Bill would prevent people making large anonymous donations to political parties.

[36]   The Authority agrees with the complainant that the Bill did not change the current provisions in the Electoral Act 1993 with respect to donations to political parties; they could still be made anonymously irrespective of the amount.

[37]   Accordingly, the Authority considers that the statement that new rules would “stop big election donors from staying anonymous” was inaccurate, and in breach of Standard 5.

“According to the new rules, donations over $10,000 can no longer be anonymous.”

[38]   The Authority considers that viewers would have interpreted the statement “donations over $10,000 can no longer be anonymous” as applying to donations to political parties. It finds that the statement was inaccurate because although the Bill provided that donations over $10,000 had to be disclosed by political parties, they could still be made anonymously.

[39]   Further, the Authority agrees with the complainant that the Electoral Finance Bill did not change the rules about disclosing anonymous donations to political parties. Therefore it finds that it was misleading to describe the Bill as containing “new rules”, and this would have contributed to the impression left by the item that the Bill was changing the rules about anonymous donations.

[40]   For the reasons outlined above, the Authority upholds the complaint that the above statement was inaccurate and in breach of Standard 5.

For the above reasons the Authority upholds the complaint that the broadcast by TVWorks Ltd of an item on 3 News on 23 July 2007 breached Standard 5 of the Free-to-Air Television Code of Broadcasting Practice.

[41]   Having upheld a complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It does not intend to impose an order on this occasion. The Authority considers that its decision clarifies the correct position with respect to the relevant provisions of the Bill as it was on 23 July 2007. It also notes that the Bill has subsequently undergone further re-drafting, and it has been subject to a substantial amount of media coverage. In these circumstances, the Authority is of the view that the publication of its decision is sufficient.

Bill of Rights

[42]   The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching its determination. The  Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act’s requirement that limits on freedom of expression must be prescribed by law, be reasonable, and demonstrably justifiable in a free and democratic society.

Signed for and on behalf of the Authority

Joanne Morris
Chair
12 February 2008

Appendix

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

1.            Steven Price’s formal complaint – 25 July 2007
2.           TVWorks’ decision on the formal complaint – 5 September 2007
3.           Mr Price’s referral to the Authority – 19 September 2007
4.           TVWorks’ response to the Authority – 8 November 2007
5.           Mr Price’s final comment – 26 November 2007
6.           TVWorks’ final comment – 3 December 2007
7.           Further submissions from Mr Price – 17 December 2007