BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority did not uphold a complaint regarding an episode of The Detail which investigated the New Zealand Film Commission’s management of a conflict of interest relating to its CEO at the time. The complainant considered the broadcast breached the balance and accuracy standards by not discussing the ‘significance of NZ On Air’s’ role in this matter. The Authority considered the complaint largely constituted a matter of personal preference, which is not capable of being resolved by a complaints procedure. Further, the proposed detail was additional to, rather than inconsistent with, any perspective presented in the broadcast so its absence was unlikely to misinform listeners.

Not Upheld: Balance, Accuracy

The broadcast

[1]  An episode of The Detail, broadcast on 22 July 2022, investigated the controversy around the funding of a drama series by the CEO of the New Zealand Film Commission | Te Tumu Whakaata Taonga (NZFC) at the time, David Strong. The broadcast included interviews with Duncan Grieve, CEO of The Spinoff who initially broke the news story,¹ and the president of the Screen Production and Development Association (SPADA), who was involved in challenging NZFC’s handling of the conflict of interest.

[2]  The broadcast outlined Strong’s appointment to the role, his disclosure of his interest in an active drama series, how screen productions are financed and developed in New Zealand, NZFC’s independent review into its conflict of interest management policy and processes, the Minister’s role in the issue, and Grieve’s thoughts about the industry more broadly.

[3]  New Zealand On Air | Irirangi Te Motu (NZOA) was referred to in the context of funding productions, being the entity that funds television, in contrast to Te Māngai Pāho which finances Māori broadcasting and NZFC doing more ‘than putting money into films’. It was also mentioned at the end of the broadcast as The Detail is ‘public interest journalism funded through NZ On Air.’

The complaint

[4]  Christopher Prowse complained the broadcast breached the balance and accuracy standards of the Code of Broadcasting Standards in New Zealand:

• There are ‘two key players to this controversy’: NZOA as ‘the provider of the public money’, and NZFC’s CEO as the alleged receiver.
• ‘Other than to report that the public money came from NZ On Air’, there is a lack of detail around the significance of NZ On Air’s role throughout this issue (such as how much funding the producers received, how much was paid to the CEO, whether conflicts of interest were an issue). Both interviewees appeared qualified enough to discuss NZOA’s involvement, but they were never asked to comment. Listeners would be left with the impression that NZOA ‘did not consider there was any problem in the CEO benefitting from this funding.’
• NZOA ‘has a dominant role in the local sector and was in a position to consider any conflicts of interest or industry implications when they considered the application. They could have either rejected the application, asked for changes to the personnel, or consulted with NZFC to resolve any potential problems before making their decision. An examination of NZ On Air’s part was important to achieve overall balance and accuracy.’
• The broadcast was funded through NZOA’s Public Interest Journalism Fund. It ‘should have at least disclosed or addressed any potential conflicts of arising from this funding that related to this Programme.’
• ‘The Programme was about an issue of public importance that involved Government agencies and public money. Significant view points needed to be presented.’
• The broadcast’s ‘failure to consider NZ On Air’s significant view as the provider of the public money put all the emphasis on the NZFC and its CEO without balancing that with whether NZ On Air’s decision was in anyway a mitigating factor. Also, the Programme omitted consideration of whether NZ On Air acted properly in its role of managing public funds.’

Preliminary issues

[5]  RNZ originally did not respond to the formal complaint or referral and took issue with the Authority accepting jurisdiction for two reasons:

• The complaint is already before the Media Council, so RNZ should not be subject to ‘double jeopardy’.
• The complainant listened to the broadcast online rather than listening to the live broadcast.

Obligations under Broadcasting Act

[6]  The broadcast was also the subject of an online article (including a link to the broadcast itself as well as a written summary of the broadcast).² This allowed the complainant to pursue their complaint through both the Authority’s and Media Council’s complaints processes. RNZ considered it was subject to ‘double jeopardy’, and that it would be inappropriate to respond to Prowse’s formal complaint to the Authority since Prowse had already complained to the Media Council.

[7]  The Authority’s jurisdiction is mandated by the Broadcasting Act 1989 and extends to programmes broadcast, the most common examples of which are programmes on television and radio.³ As the programme was broadcast on-air, the Authority has jurisdiction to determine this complaint.

[8]  The Media Council is a self‑regulatory body, accepting complaints regarding various media, including the content of newspapers and magazines (including on their websites) and the online content of certain broadcasters including RNZ.⁴ As the broadcast was the subject of an online article, the Media Council also has jurisdiction in this matter.

[9]  The Broadcasting Act 1989 is clear in the obligations it imposes on broadcasters to receive and consider formal complaints about programmes it broadcasts.⁵ As the complainant was able to identify when the broadcast occurred, and the complaint met the criteria for a ‘formal complaint’ under section 6 of the Act, RNZ was required to respond to the complaint. This Authority has a corresponding statutory obligation to consider and determine complaint referrals so long as they are made within the statutory time limits.⁶

[10]  Given the clear statutory obligations, we consider that we, and RNZ, are required to consider this complaint. The fact that the complaint is currently before the Media Council does not detract from our statutory obligations. We therefore proceed on that basis and continue to determine the complaint in the absence of RNZ’s submissions.

Jurisdiction of online broadcast

[11]  RNZ noted the complainant ‘didn’t hear the live broadcast’. As the complainant listened to the audio on demand version of the broadcast, RNZ argued the Authority does not have jurisdiction to determine this complaint.

[12]  The Authority’s jurisdiction is limited to programmes ‘broadcast’.⁷ The definition of broadcasting excludes the transmission of programmes ‘made on the demand of a particular person for reception only by that person.’⁸ To that extent, we have previously found that YouTube videos are ‘on demand’ content, falling within this exclusion.⁹

[13]  However, we have accepted jurisdiction for complaints regarding online content, where that content was simultaneously broadcast on radio or television (‘simulcast’).¹⁰ In reaching that finding, we noted:¹¹

If the programme has been broadcast on television or radio the relevant broadcasting code will apply to it and a complaint may be made about it. It logically follows that if a person may complain about content seen on television, then the identical programme seen on the internet should equally be subject to the Authority’s consideration. The only limitation is that the complaint must be made within 20 working days of the broadcast, which we understand was done in this case.

[14]  RNZ contends this case is distinguishable as the content was not simulcast, but rather published online (with a link to the audio) and the audio separately broadcast later. It does not suggest the audio in the online article is materially different to that broadcast.

[15]  We consider any distinction immaterial. The broadcast is subject to broadcasting standards. So long as a complainant abides by the requirements set out in the Act, particularly regarding time limits¹² and identifying a programme with sufficient details to enable ready identification of the broadcast complained about (such as the date and time of its broadcast),¹³ personally experiencing the live broadcast is irrelevant.

[16]  The Authority’s position on this issue has been reflected in its published guidance for some years.¹⁴

[17]  We are supported in our finding by the practical unworkability of the counterfactual: in particular, the difficulties of establishing whether a complainant actually listened to the broadcast live or online if the two are materially similar. In either case, they allege a breach of broadcasting standards and the broadcast is subject to those standards. We also consider this determination to be consistent with the Act’s purpose to provide for the maintenance of programme standards in broadcasting.¹⁵

The broadcaster’s response

[18]  The Authority advised RNZ that due to the Broadcasting Act’s obligations on RNZ and the Authority, it would determine the complaint. RNZ was given a further opportunity to provide submissions. In response, RNZ said:

• The ‘scope of the topic was made clear to the audience at the outset’ through the introduction to the item. The complainant’s suggestions on what should have been included ‘fall outside the focus of the item’.
• Allegations of RNZ acting ‘improperly with respect to the Public Interest Journalism Fund fall outside the scope of the Authority’s jurisdiction.’

The standards

[19]  The balance standard¹⁶ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.¹⁷

[20]  The purpose of the accuracy standard¹⁸ is to protect the public from being significantly misinformed.¹⁹ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

Our analysis

[21]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[22]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.²⁰

[23]  At the outset, we note the complaint relates to the omission of material, particularly around NZOA’s role, said to make the broadcast misleading and unbalanced. In general, we do not agree. The broadcast provided a narrative of NZFC’s handling of a perceived conflict of interest relating to its CEO. Provided it did not breach broadcasting standards, RNZ was entitled to present the story from the perspective it considered suitable.²¹ The complainant’s personal preferences on what else should have been addressed are not concerns that are capable of being resolved by a complaints procedure.²²

[24]  We acknowledge NZOA was involved in the funding of the drama series, as noted in Grieve’s original article.²³ NZOA’s funding role was also important in managing the conflict of interest, as noted in both the article and NZFC’s subsequent review into its management of conflict of interests.²⁴ However, we do not consider this additional detail was required, or expected, to comply with broadcasting standards.

[25]  We expand on our reasoning under each of the standards raised.

Balance

[26]  This standard requires broadcasters to make reasonable efforts, or give reasonable opportunities to present significant points of view when ‘controversial issues of public importance’ are discussed in news and current affairs programmes.²⁵

[27]  An issue of public importance is something that would have a significant potential impact on, or be of concern to, members of the New Zealand public. A controversial issue will be one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.²⁶

[28]  We do not consider the broadcast discussed such an issue. The broadcast provided a narrative of NZFC’s handling of a particular conflict of interest relating to its CEO. We do not consider one organisation’s handling of a particular conflict of interest excites conflicting opinion or stimulates ongoing public debate.

[29]  In any event, we do not consider further balancing material was required in this instance. A key consideration is what an audience expects from a programme and whether they were likely to have been misinformed by the omission or treatment of a significant perspective.²⁷

[30]  We do not consider listeners expected, or were otherwise misinformed by the omission of, the additional detail suggested by the complainant:²⁸

• The broadcast spanned 25 minutes and included interviews with both Grieve and the president of SPADA. In the context of this time-limited broadcast, listeners would not have expected the level of additional detail contemplated by the complainant regarding NZOA’s role where NZFC was the subject of scrutiny.²⁹
• The views suggested by the complainant are additional to, rather than inconsistent with, the broadcast. They provide further colour to the narrative, but the crux of the story (being the existence, and management, of conflicts of interest at NZFC) could be told without this further detail while not misinforming the audience.
• In any event, these further details were available for interested listeners through Grieve’s article and NZFC’s since published review into its management of conflicts of interest.

[31]  In the circumstances, we do not consider regulatory intervention, and a corresponding limit on the broadcaster’s freedom of expression, to be justified.

Accuracy

[32]  In assessing whether the requirements of the accuracy standard were met, we must consider whether the broadcast was inaccurate or misleading, and if so, whether the broadcaster made reasonable efforts to ensure all material statements of fact were accurate and that the broadcast as a whole did not mislead viewers.³⁰ Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’³¹

[33]  The complainant suggests omitting detail around NZOA’s role misinformed the audience. There is no allegation of any specific inaccuracy in the broadcast.

[34]  Although broadcasts can be misleading by omission,³² we do not consider that is the case here for the reasons outlined above, and particularly that the omitted detail was additional, rather than contrary, to what was broadcast. Therefore, we do not uphold the complaint.

[35]  With regard to the complainant’s concerns regarding NZOA funding this broadcast, the Authority’s jurisdiction is limited to assessing the programme’s compliance with broadcasting standards. We cannot consider any suggested issues of broader conflicts. In any event, we note NZ is a small country, and conflicts of interest are natural and unavoidable.³³ As we have not found any breach of broadcasting standards, we do not consider NZOA’s funding of this broadcast material in the circumstances.

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

Susie Staley
Chair
22 November 2022

Appendix

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

1  Christopher Prowse’s referral to the Authority – 29 August 2022

2  RNZ’s position regarding the Authority’s jurisdiction to determine complaint – 5 October 2022

3  RNZ’s response to referral – 7 October 2022

4  Prowse’s further comments – 11 and 13 October 2022

5  RNZ’s final comments – 21 October 2022

6  Prowse’s additional comments – 25 October 2022

7  RNZ's submissions on decision – 11 November 2022

¹ Duncan Grieve “The curious case of The Pilgrim, a decade-old script tearing the screen industry apart” The Spinoff (online ed, 4 May 2022)
² The Detail “Drama behind the scenes at Film Commission” RNZ (online ed, 22 July 2022)
³ Broadcasting Act 1989, s 2
⁴ New Zealand Media Council | Te Kaunihera Ao Pāpāho o Aotearoa “The New Zealand Media Council” <mediacouncil.org.nz>
⁵ Broadcasting Act 1989, s 6
⁶ Broadcasting Act 1989, ss 8 and 10
⁷ Broadcasting Act 1989, s 6
⁸ Broadcasting Act 1989, s 2
⁹Hurley and MediaWorks TV Ltd, Decision No. ID2018-068 at [5]
¹⁰ Regarding content simulcast on radio and an internet platform, see McKenzie and 95BFM, Decision No. 2005-090 at [5], and Phair and Radio One, Decision No. 2011-140 at [3]; regarding content simulcast on television and an internet platform, see Phillips and Racing Industry Transition Agency, Decision No. ID2019-044 at [8]–[12]
¹¹Phillips and Racing Industry Transition Agency, Decision No. ID2019-044 at [11]
¹² Broadcasting Act 1989, ss 6(2) and 8
¹³Supreme Sikh Council of New Zealand & Supreme Sikh Society of New Zealand and Radio Virsa, Decision No. ID2015-082 at [14]
¹⁴ See, for example, guidance regarding the complaints process in the BSA Codebook (page 22 of July 2022 edition and page 57 of May 2020 edition)
¹⁵ Broadcasting Act 1989, long title
¹⁶ Standard 5, Code of Broadcasting Standards in New Zealand
¹⁷ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at 14
¹⁸ Standard 6, Code of Broadcasting Standards in New Zealand
¹⁹ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at 16
²⁰ Introduction, Code of Broadcasting Standards in New Zealand at 4
²¹ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at 15
²² See Golden and Radio New Zealand Ltd, Decision No. 2019-095 at [10] and Broadcasting Act 1989, s 5(c)
²³ See footnote 1, above
²⁴ As above, and see Venter Consulting Conflict of Interest Management: Review for the New Zealand Film Commission Board (19 August 2022) at “Executive Summary and Recommendations”
²⁵ Guideline 5.1
²⁶ Guideline 5.1
²⁷ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at 15
²⁸ Guideline 5.4
²⁹ See Carapiet and Radio New Zealand Ltd, Decision No. 2022-033 at [15] where we noted issues regarding regulatory approval processes were not required in the context of the item; and NZDSOS and Television New Zealand Ltd, Decision No. 2022-005 at [20] for a similar finding
³⁰Wakeman and Television New Zealand Ltd, Decision No. 2022-057 at [31]
³¹Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [98]
³²Morrison & New Homes Direct Ltd and Television New Zealand Ltd, Decision No. 2021-150 at [5]
³³ Public Service Commission | Te Kawa Mataaho “Conflicts of interest” <publicservice.govt.nz>