BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

A news segment on The AM Show about name suppression included a clip from an interview with former Attorney-General, Chris Finlayson QC, which had been broadcast live on air earlier in the programme. The clip from the interview played during the news item related to Mr Finlayson’s comments about bullying allegations in Parliament, rather than his views on name suppression laws. The broadcaster acknowledged this clip placement was in error. A complaint was made that this error was significantly inaccurate, as it would have misled viewers as to Mr Finlayson’s views regarding name suppression laws. The Authority did not uphold the complaint, finding that while the broadcaster made an error in playing the clip during that particular news segment, it was not significantly misleading in the context of the item as a whole. The Authority acknowledged the technical mistake and did not uphold the complaint.

Not Upheld: Accuracy

The broadcast

[1]  An episode of The AM Show included an interview with Chris Finlayson QC, former MP and Attorney-General, about his time as an MP and his views on current issues including name suppression orders and bullying allegations within Parliament. Clips from this interview were later played during the 8am and 8.30am news bulletins, during items about name suppression laws.

[2]  The clip that was broadcast during the 8am news item about name suppression was a comment made by Mr Finlayson about name suppression during the interview:

Frankly I don’t know why it needs to take twenty days. I think it should be able to be dealt with in a matter of days myself, but the fundamental principle is open justice and I can’t see any justification…

[3]  However, the clip that was broadcast during the 8.30am news item about name suppression was a comment taken from later in the interview with Mr Finlayson, when he was discussing bullying allegations at Parliament:

The best way of dealing with it is getting some sunlight in there. I think various people have got away with too much for too long.

[4]  The episode was broadcast on 11 December 2018 on Three. In considering this complaint, we have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The complaint

[5]  Mr Reekie complained that the news item broadcast at 8.30am breached the accuracy standard of the Free-to-Air Television Code of Broadcasting Standards, as comments made by Mr Finlayson about alleged bullying in Parliament were broadcast during a news item about name suppression orders. He submitted:

• Viewers would have been misled as to Mr Finlayson’s views on name suppression laws. The broadcast implied that he thought there was something seriously wrong with the existing law, which undermines public confidence in the courts and laws of New Zealand.
• It was unlikely viewers watching at 8.30am would have seen the full interview played 45 minutes earlier, at 7.45am, or watched it carefully enough to detect the error.
• The story was high-profile, Mr Finlayson’s views carry significant weight given his reputation and the inaccuracy was therefore significant.
• When MediaWorks realised they had erred in playing this clip, they should have made a statement of correction.

[6]  MediaWorks responded that the clip of Mr Finlayson’s comment about bullying allegations was played incorrectly during a news item about name suppression.

[7]  MediaWorks stated:

The clip in this case was run in error – a mistake that meant it didn’t match the written words that accompanied it. [The] supervising producer in the control room realised the mistake had been made in the 0830 bulletin…. Soon after the show finished, he spoke to the news editor in the newsroom and the journalist involved informing them of the mistake. This was to ensure the same story was not replicated anywhere else – and the same mistake was not made again.

[8]  However, it submitted the broadcast did not breach the accuracy standard because:

• It was a technical error that did not amount to a material inaccuracy and did not result in viewers being significantly misled.
• The clip did not make much sense in the context of the news item.
• The clip did not contain any information that could have significantly affected viewers’ understanding of the name suppression issue, particularly if they had seen the full interview earlier.
• The AM Show producers had acted on the error (by ensuring the incorrect version could not be aired again) as soon as it was discovered.
• In the fast-paced live news broadcasting environment technical errors can occasionally happen.

The standard

[9]  The accuracy standard (Standard 9) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead. The objective of this standard is to protect audiences from being significantly misinformed.¹

Our findings

[10]  When determining a complaint we first recognise the importance of the right to freedom of expression, which includes both the broadcaster’s freedom to present information and ideas to the public, and the audience’s right to receive that information. We weigh the right to freedom of expression against the level of actual or potential harm that might be caused by the broadcast. In this case, the harm alleged is the potential for the public to be misled about Mr Finlayson’s views on name suppression laws, which could undermine public confidence in the law and courts of New Zealand.  

[11]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate 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.² Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’³

[12]  The standard is concerned only with material inaccuracy. For example, technical or unimportant points unlikely to significantly affect the audience’s understanding of the programme as a whole are not material.⁴

[13]  The complainant has submitted the broadcast was inaccurate and misleading as it would have led viewers to believe that Mr Finlayson was attacking name suppression laws. The broadcaster has acknowledged that placement of that clip was erroneous. We consider that the important question is whether this technical error was likely to significantly affect viewers understanding of the news item as a whole in breach of the accuracy standard.

[14]  We consider that the error was not material to viewers’ understanding of the broadcast and was unlikely to significantly mislead viewers for the following reasons:

• The focus of the item was on growing pressure for name suppression laws to be reviewed, in light of interim name suppression granted in a recent criminal case. The focus was not solely on Mr Finlayson’s views. Rather his views were presented as a comment on the issue which was the focus of the item.
• Arguably the clip did not make a lot of sense in the context of the item, but as the story was not about Mr Finlayson’s views per se, it was more likely to be considered by viewers to be a disconnected comment than to specifically mislead them.
• Mr Finlayson had, during the full interview broadcast earlier, made a more specific comment that was critical of name suppression laws (also noting that it was ‘about time Parliament looked at some of this stuff’).  Therefore, the impression that he was critical of name suppression laws was not entirely inaccurate.

[15]  The Authority has, in the past, acknowledged the challenges of live broadcasting where, at times, even with the best of intentions, mistakes do take place.⁵ However, we do not consider the error in this case was likely to significantly mislead viewers with respect to this news item and therefore any restriction on the broadcaster’s right to freedom of expression on this occasion would be unreasonable. We note that the broadcaster took steps to ensure that the error was not repeated in subsequent broadcasts.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Paula Rose

Member

18 July 2019

Appendix

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

1                 Nicholas Reekie’s formal complaint – 5 December 2018

2                 MediaWorks’ response to the complaint – 12 March 2019

3                 Mr Reekie’s referral to the Authority – 29 March 2019

4                 MediaWorks’ confirmation of no further comment – 29 May 2019

¹ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
² As above, page 19
³ Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
⁴ Guideline 9b
⁵ See, for example, Bartlett and Television New Zealand, Decision No. 2018-093 at [9]