BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Mana News – item about funding of Mana Maori Media by Te Mangai Paho – commented on complainants’ questions in Parliament about funding – unbalanced, inaccurate, unfair – Principles 4, 6 and 7 – RNZ upheld the complaint as inaccurate and a breach of Principle 6 – made written apology – action taken insufficient – complainants seek broadcast of correction and apology

Findings
Action taken insufficient

Order
Broadcast of statement

This headnote does not form part of the decision.

Summary

[1] Questions in Parliament from the complainants about the funding of Mana Maori Media Ltd by Te Mangai Paho were dealt with in an item on Mana News broadcast on National Radio between 5.00–6.00pm on Friday 2 May 2003.

[2] Members of Parliament, Katherine Rich and Rodney Hide, complained to Radio New Zealand, the broadcaster, that the item was unbalanced, inaccurate and denigrated them.

[3] RNZ upheld the following aspects of the complaints; first, that the item was inaccurate; second, that it failed to distinguish between fact and opinion; and third, that it compromised RNZ’s impartiality. It apologised by letter to the complainants.

[4] Dissatisfied that RNZ’s action upon upholding the complaints did not include an on-air correction and apology, the complainants referred their complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaints that the action taken was insufficient.

Decision

[5] The members of the Authority have listened to a tape of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaints without a formal hearing. Member, Ms Misa, declared a conflict of interest and did not participate.

The Programme

[6] Questions in Parliament about the funding by Te Mangai Paho of Mana News, through Mana Maori Media Ltd, were covered in an item broadcast on Mana News on National Radio between 5.00–6.00pm on Friday 2 May 2003. The item suggested that the questions by MPs Rodney Hide and Katherine Rich seemed designed to "create a Maori scandal" by "simply asserting there is one". The item said that Ms Rich, "displaying righteous indignation", stated that Mana News was supplying only 10 hours of Maori language programming a year at the cost of $34,000 an hour. The item continued:

They were her calculations. Actually 120 hours of programming per year, Katherine, at a cost of less than $3,000 an hour. There’s a difference if you look closely.

The Complaints

[7] Members of Parliament, Katherine Rich and Rodney Hide, complained to RNZ about the broadcast on Mana News, noting that Mana News was made by Mana Maori Media Ltd for RNZ. They provided an unedited transcript from Hansard of the questions they had asked in Parliament on 1 May, and a copy of a letter from Te Mangai Paho to Mana Maori Media Ltd dated 19 November 2002 which contained the information used in their questions. The complainants contended that the broadcast breached Principles 4, 6 and 7 of the Radio Code of Broadcasting Practice.

[8] The broadcast breached the requirement for balance in Principle 4, they wrote, as the item did not include their point of view on the issues, which they described as controversial, of providing funding without a contract. It was in breach of the requirement for factual accuracy, they continued, as the item claimed, incorrectly, that they did not have the correct facts. It was also in breach of the accuracy requirement, first, as the presenter failed to distinguish facts and opinion, and second, as RNZ had failed to maintain editorial independence and the integrity of its news and current affairs.

[9] Moreover, the complainants stated, the broadcast denigrated them on account of their race and political beliefs and, accordingly, was in breach of Principle 7. The complainants summarised their complaint in the following way:

We consider the Mana News item a shocking piece of untruthful and inaccurate reporting masquerading as "news". It was biased. It had a racial edge to it. The private company that provides state radio with its Maori news service simply exploited the opportunity to propagandise to its own commercial advantage irrespective of the facts and the Broadcasting Standards that apply under statute in New Zealand. We do not believe that this is the standard of broadcast that Radio New Zealand should be setting.

The Standards

[10] RNZ assessed the complaints under the standards nominated by the complainants. The Principles, and relevant Guidelines, in the Radio Code of Broadcasting Practice provide:

Principle 4

In programmes and their presentation, broadcasters are required to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Principle 6

In the preparation and presentation of news and current affairs programmes, broadcasters are required to be truthful and accurate on points of fact.

6c  Factual reports on the one hand, and opinion, analysis and comment on the other, shall be clearly distinguished.

6d  Broadcasters shall ensure that the editorial independence and integrity of news and current affairs is maintained.

Principle 7

In programmes and their presentation, broadcasters are required to be socially responsible.

7a  Broadcasters will not portray people in a manner which encourages denigration of or discrimination against any section of the community on account of gender, race, age, disability, occupational status, sexual orientation; or as the consequence of legitimate expression of religious, cultural or political beliefs. This requirement does not extend to prevent the broadcast of material which is:

i) factual; or

ii) a genuine expression of serious comment, analysis or opinion; or

iii) by way of legitimate humour or satire.

The Broadcaster’s Response to the Complainants

[11] RNZ began its letter to Mr Hide:

At the outset Radio New Zealand acknowledges that this item breached parts of the Radio Code of Broadcasting Practice and apologises to yourself and Ms Rich that this occurred. Radio New Zealand also apologises for the item being disrespectful of you both and regrets that it was broadcast.

[12] RNZ explained that audio supplied by Mana for news and current affairs was, in practice, reviewed prior to broadcast. However, because the audio was filed late on this occasion, it was not vetted before it went to air. RNZ stated that it would not have been broadcast had it been vetted. Because the item breached both its internal standards and the broadcasting standards, RNZ advised that it was reviewing the processes to which Mana Maori Media were required to adhere, and "you may rest assured that more stringent measures are being put in place".

[13] Turning to the nominated standards, RNZ contended the funding of Mana Maori Media was not controversial and, even if it was, it argued that the period of current interest in which balance could be achieved was still open. It declined to uphold the Principle 4 aspect of the complaint.

[14] As for the accuracy requirement in Principle 6, RNZ upheld the aspect which related to Ms Rich being misquoted and that the item failed to distinguish between fact and opinion. It also upheld the complaint that RNZ’s impartiality was compromised when the presenter’s comments were spoken directly to one of the complainants.

[15] RNZ accepted that the broadcast contained parts which were disrespectful of the complainants but argued that the comments fell short of the "severe blackening" necessary to incur a breach of Principle 7.

[16] RNZ concluded:

It remains for me to apologise to you again for the breaches of the Radio Code of Broadcasting Practice that occurred, the disrespectful tone and manner in which it was delivered and to express our regret that due to the item being received late it was not checked before broadcast. You may rest assured that the matter is being pursued with Mana Maori Media Ltd with a view to tightening up procedures such that this type of incident is not repeated.

The Referral to the Broadcasting Standards Authority

[17] Pointing out that RNZ had upheld aspects of the complaints and had acknowledged that the item was disrespectful in tone, the complainants were dissatisfied that the only remedy offered was a written apology. They wrote:

We believe that Radio New Zealand are duty-bound to broadcast at a similar time as their original broadcast a correction to their original broadcast and an apology to us and to their listeners. We don’t believe it is acceptable to broadcast an error-ridden item to the listening public and then attempt to make amends simply by apologising in private.

The Broadcaster’s Response to the Authority

[18] RNZ explained that the programme complained about was produced and supplied by Mana Maori Media Ltd. It also advised that Mana was contractually obliged to supply programmes well before the time of broadcast so they could be checked before going on-air. It continued:

Unfortunately this did not occur in this instance and the programme was delivered too late for checking. Radio New Zealand has found itself the victim of an ill conceived item that was not able to be previewed before it went to air.

[19] RNZ also advised that it had expressed its concern to Mana Maori Media, and enclosed a copy of its letter.

[20] RNZ expressed the opinion that its role with the current complaint was similar to that of a supplier of transmission services which, under the Broadcasting Act was not a broadcaster for the purposes of maintaining broadcasting standards, writing:

… due to a combination of circumstances imposed upon Radio New Zealand, Radio New Zealand was not able to exercise its normal editorial controls in this case. Had those controls been able to be exercised, the item would not have been broadcast.

[21] Arguing that the circumstances in regard to the broadcast on 2 May were "unique", RNZ contended that it could not be held "directly responsible" for the content of the programme complained about. It added:

The tone of our correspondence to the programme supplier is sufficient to indicate to the complainants that Radio New Zealand shares their concern. Had Radio New Zealand itself committed such a breach of the Radio Code of Broadcasting Practice of such gravity as claimed by the complainants, and were found to be in breach by the Authority, then it may in some circumstances be appropriate to conduct an on-air apology.

[22] Repeating its apology to the complainants, RNZ said:

Radio New Zealand respectfully submits that in this instance, given its inability to review the item, and thus intervene to stop it going to air, the action taken was appropriate and that an on air apology is not required. We also point out that complaints regarding this programme are relatively rare.

The Complainants’ Final Comment

[23] In response, the complainants maintained that RNZ was responsible for the broadcast and that the excuses advanced did not absolve it from its responsibilities. They wrote:

Radio New Zealand is the broadcaster in the eyes of the law and it certainly is the broadcaster in terms of the ears of the listeners. Listeners of RNZ hearing the broadcast would not make a distinction between Mana and RNZ. To the listener they are one and the same.

Further Correspondence

[24] Acknowledging that it was unusual to respond to a complainant’s final comment, RNZ explained that it wanted to make the following observations on this occasion. First, it pointed out that it had apologised to the complainants swiftly and "we believe appropriately". Secondly, it contested part of the complainants’ comment about listeners distinguishing Mana as a separate entity (recorded in para [23]), pointing to its in-house staff who dealt with Maori issues and arguing:

A distinction can easily be drawn as Mana Maori Media is a contracted third party, known as "Mana" which has three regular and separately identified slots on National Radio i.e. Mana Report, Mana News and Mana Tangata. Mana Maori Media is a recognised supplier of news and programmes to other radio stations and is known as "Mana" in those contexts as well.

[25] RNZ reiterated its contention that the acknowledged breach of broadcasting standards had occurred due to "unusual circumstances" when it did not have sufficient time to preview the broadcast. It sought assurance that the complainants had been advised that its concerns had been sent to Mana Maori Media.

[26] In response, the complainants emphasised that they sought the broadcast of a correction and an apology for "an error-ridden item". They also pointed out that RNZ was the broadcaster, adding:

They can’t dodge responsibility for the broadcast by saying that the programme was produced by a third party and that their own staff did not have time to check the item.

The Authority’s Determination

[27] The complainants argued that RNZ’s actions, having upheld their complaints that the broadcast of an item on Mana News breached the requirement for accuracy, were insufficient. RNZ apologised to the complainants in its letter reporting its findings on the complaints. The complainants believed that an on-air correction and apology were the appropriate actions given the breach which had occurred.

[28] In its report to the Authority, RNZ argued that its role with regard to these complaints was that of a provider of transmission services. It added:

Had Radio New Zealand itself committed such a breach of the Radio Code of Broadcasting Practice of such gravity as claimed by the complainants, and were found to be in breach by the Authority, then it may in some circumstances be appropriate to conduct an on-air apology.

[29] The Authority does not agree with RNZ that its role on this occasion was confined to that of being a transmission service. RNZ pointed out that it expected to review and possibly edit audio provided by external suppliers to ensure that material met both its internal standards and those prescribed in the Radio Code.

[30] With regard to the broadcast complained about, however, RNZ advised that the material was not vetted before broadcast as it "was filed late". It also advised that it had since written to Mana Maori Media Ltd to state that there could be financial penalties, if material was delivered late in future.

[31] RNZ, like many other broadcasters, broadcasts programmes provided by independent programme makers. The Authority points out that RNZ, like those other broadcasters, is the responsible broadcaster should the material broadcast fail to comply with broadcasting standards. As recently as Decision No: 2003-043 (22 May 2003), the Authority determined a complaint about an item broadcast on Concert FM. The item was provided by a production company in the United States, and RNZ did not question that it was responsible for the broadcast.

[32] As it finds that RNZ is the responsible broadcaster, a role which transcends the mere provision of transmission services, the Authority agrees with the tenor of RNZ’s statement recorded in paragraph [28]. The Authority believes that the circumstances of the case justify the making of on-air correction and apology as being the appropriate action to be taken.

[33] The social objective of regulating broadcasting standards is to guard against broadcasters behaving unfairly, offensively, or otherwise excessively. The Broadcasting Act clearly limits freedom of expression. Section 5 of the New Zealand Bill of Rights Act provided that the right to freedom of expression may be limited by "such reasonable limits which are prescribed by law as can be demonstrably justified in a free and democratic society". For the reasons given in Decision Nos 2002-071/072, the Authority is firmly of the opinion that the limits of the Broadcasting Act are reasonable and demonstrably justified in a free and democratic society. The Authority records that it has given full weight to the provision of the New Zealand Bill of Rights Act 1990 when exercising its powers under the Broadcasting Act on this occasion. For the reasons given in this decision, the Authority considers that the exercise of its powers on this occasion is consistent with the New Zealand Bill of Rights Act. In reaching this conclusion, the Authority has taken into account all the circumstances of these complaints, including the nature of the complaints.

For the reasons above, the Authority upholds the complaints that the action taken by Radio New Zealand Limited, having upheld the complaints by the complainants in regard to the broadcast of Mana News between 5.00–6.00pm on 2 May 2003, was insufficient. It imposes the following order:

Order

Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders Radio New Zealand Ltd to broadcast a statement, within one month of the date of this decision, which includes an apology explaining why the complaints were upheld. The statement shall be approved by the Authority and broadcast on a day and at a time to be approved by the Authority. 

The Authority draws the broadcaster’s attention to the requirements of section 13(3)(b) of the Act for the broadcaster to give notice to the Authority and the complainant in the manner in which the above order has been compiled with.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
29 September 2003

Appendix

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

1. Katherine Rich MP and Rodney Hide MP’s Formal Complaints to Radio New Zealand Ltd
   (with attachments) – 20 May 2003
2.  RNZ’s Response to the Formal Complaint – 5 June 2003
3. Ms Rich and Mr Hide’s Referral to the Broadcasting Standards Authority – 17 June 2003
4. RNZ’s Response to the Authority – 27 June 2003
5. The Complainants’ Final Comments – 2 July 2003
6. RNZ’s Further Letter to the Authority – 8 July 2003
7. The Complainants’ Response – 16 July 2003