BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An item on 1 News reported on an alleged ‘mistake’ by the Ministry of Foreign Affairs and Trade (MFAT), which the reporter, Andrea Vance, said ‘cost the taxpayer a quarter of a million dollars’. The item referred to MFAT’s action in waiving the diplomatic immunity of an MFAT employee – the complainant – to allow child custody and matrimonial proceedings to be heard in an overseas court. According to Ms Vance, MFAT’s actions were disputed by the complainant’s ex-partner, resulting in MFAT issuing an apology and payment of ‘legal bills’ to both the complainant and the complainant’s ex-partner. The Authority upheld aspects of a complaint from the MFAT employee that the item was inaccurate, unbalanced and unfair. It was important, in the interests of ensuring viewers were properly informed and were not misled, for the broadcaster to have provided alternative perspectives on the issue of legal costs, namely that MFAT denied payment of the complainant’s costs. Further, it should have been made clear to viewers that a legal expert featured in the item did not have specific knowledge of the complainant’s case and was commenting only generally on the applicable law. The Authority noted the public interest in this item and the efforts made by the broadcaster to protect the identities of those involved, and did not uphold the complaint under the remaining standards.

Upheld: Accuracy, Fairness, Balance.

Not Upheld: Privacy, Children’s Interests, Programme Information.

No Order.  

Introduction

[1]  An item on 1 News reported on an alleged ‘mistake’ by the Ministry of Foreign Affairs and Trade (MFAT), which the reporter, Andrea Vance, said ‘cost the taxpayer a quarter of a million dollars’. The item referred to MFAT’s action in waiving the diplomatic immunity of an MFAT employee – the complainant – to allow child custody and matrimonial proceedings to be heard in an overseas court.

[2]  According to Ms Vance in the item, MFAT’s actions were disputed by the complainant’s ex-partner, resulting in MFAT issuing an apology and payment of ‘legal bills’ to both the complainant and the complainant’s ex-partner, of $50,000 and $212,000 respectively. The item also featured interview excerpts with a legal expert, who commented on applicable legislation, alleged delays in the process and his view that jurisdiction for the proceedings lay in New Zealand.

[3]  RK, the MFAT employee referred to in the item, complained that this item was misleading, unbalanced and unfair. RK submitted that MFAT had confirmed with the reporter that it did not pay RK’s legal costs. This statement, as well as other important information about the family’s circumstances, was omitted from the item, which in RK’s view was misleading. Further, RK said that the legal expert’s comments implied specific knowledge of the complainant’s situation, which was not the case.

[4]  The issues raised in RK’s complaint are whether the broadcast breached the accuracy, fairness, balance, privacy, children’s interests and programme information standards of the Free-to-Air Television Code of Broadcasting Practice. In our view, the accuracy, fairness and balance standards are most relevant to RK’s concerns. We have therefore focused our determination on those standards, and address the remaining standards from paragraph [64] below.

[5]  The item was broadcast on TVNZ 1 on 11 December 2017. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Overview of findings and freedom of expression

[6]  The starting point in our determination of broadcasting standards complaints is to recognise the important right to freedom of expression. We may only interfere and uphold a complaint where the limitation on the right to freedom of expression is reasonable and justified in a free and democratic society. This involves assessing, in each case, how important the right to freedom of expression is on the one hand, and on the other, the level of harm alleged to have been caused by the broadcast, either to an individual or to society generally, by potentially breaching broadcasting standards.

[7]  This item aimed to inform the New Zealand public about alleged action taken by MFAT, in waiving the complainant’s diplomatic immunity and the resulting apology and alleged use of public funds in payment of legal costs, required as a result of MFAT’s actions. This was an important and controversial topic, and we recognise that, in an open and democratic society such as ours, broadcasts which scrutinise, or which are critical of, the actions of government entities and the expenditure of taxpayers’ money are a vital component of freedom of expression. We therefore acknowledge that this broadcast had high value in terms of the right to freedom of expression and carried a high level of public interest. We also acknowledge that the broadcaster took steps to ensure the complainant and the family involved were not identified in the item. In these circumstances, our view is that it was important for this story to be broadcast.

[8]  However, in complaints of this kind and in previous decisions raising similar issues, we have stressed the importance of finding the proper balance between the public interest in allowing free criticism of those who govern, and the public interest in ensuring that news programmes are accurate, fair and balanced to the individuals and organisations featured or referred to.¹ In this case the important issue of the need to respect the sources of journalists also arises.

[9]  We have found that there were aspects of this item where, in our view, the broadcaster did not take sufficient steps to ensure broadcasting standards were maintained, namely in its presentation of differing viewpoints on the alleged payment of legal costs and ensuring MFAT’s comment was fairly presented during the item. As a result, we have found that the item was misleading, as it omitted relevant information about MFAT’s use of public funds. We have also found that the presentation of comments from a legal expert was misleading, as the item did not clarify for viewers that the legal expert did not have specific knowledge of the complainant’s case.

[10]  While we have not upheld the complaint under the privacy standard, given the nature of the complaint, we have determined it is appropriate to suppress the complainant’s name, and any other information which might identify the family involved, in our decision.

Was the broadcast inaccurate or misleading?

[11]  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. Technical or unimportant points unlikely to significantly affect the audience’s understanding of the item as a whole are not material,² and the requirement for accuracy will not apply to statements clearly distinguishable as analysis, comment or opinion, rather than statements of fact.³ The objective of the standard is to protect audiences from being significantly misinformed.

The parties’ submissions

[12]  RK submitted:

• Ms Vance incorrectly stated that MFAT paid legal costs of $50,000 to RK. In response to questions from Ms Vance, MFAT confirmed that this allegation, ie that it paid the complainant’s legal costs, was incorrect.
• Ms Vance reported on and misrepresented the complainant’s confidential records, claiming that a payment received by the complainant from MFAT was to pay the complainant’s legal costs.
• The item omitted key information about the family’s circumstances, namely their dual citizenship, and the legal proceedings. The item incorrectly implied that, because RK’s children were New Zealand citizens, child custody issues should have been resolved in New Zealand. The item also implied that there had been a significant delay in proceedings which had caused distress to the complainant’s children; this was incorrect and irrelevant to the focus of the item, which was MFAT’s waiver of diplomatic immunity. 
• The legal expert’s comments, regarding substantial delays and the applicable legislation, were irrelevant and implied specific knowledge of the family’s circumstances, which was not the case.

[13]  TVNZ submitted:

• Two separate sources confirmed that the complainant received a combination of legal advice from MFAT counsel and payment in relation to the matter, totalling $50,000. Both sources had knowledge of the case.
• The reporter did not see or rely on any confidential records for this claim.
• MFAT’s response on the issue of payment of legal costs was not included in the item, as this was inconsistent with information provided by the reporter’s sources and statements previously provided by MFAT on the item had proven to be incorrect.
• The focus of the item was not the family’s circumstances but MFAT’s decision to waive diplomatic immunity and the time and taxpayer money spent dealing with the issue. As such, provision of information about the proceedings was not necessary or appropriate, as it would have increased the likelihood of the complainant and the family being identified in the item.
• In any event, TVNZ was only made aware of the family’s circumstances after receiving RK’s initial formal complaint. This information was not raised by MFAT in response to TVNZ as being relevant to its decision to waive diplomatic immunity.
• The legal expert was approached for comment as a leading family law expert and was provided with documents disclosed as part of an Official Information Act 1982 (OIA) request on the issue. His comments were directed at, and relevant to, the appropriateness of MFAT’s decision to waive diplomatic immunity.
• The item did not refer to the current status of the legal proceedings, or imply that there were ongoing delays. The final segment of the item suggested that the case had been resolved with MFAT’s apology and payment of legal fees.

Our analysis

Payment of legal costs

[14]  It is not our role to determine whether, in fact, the complainant received payment for legal costs from MFAT. The question for us to consider is whether the broadcaster has demonstrated it made reasonable efforts to ensure that this reporting was accurate and would not have misled viewers, in circumstances where MFAT denied it paid the complainant’s legal costs.

[15]  First, we are satisfied that the reporter’s statement regarding legal costs was material for the purposes of the standard. The focus of this item was on MFAT’s decision to waive diplomatic immunity and the resulting use of public funds. In these circumstances, the amount paid to the employee at the centre of the story was material to the audience’s understanding of the item as a whole.

[16]  In our assessment of whether the broadcaster has made reasonable efforts to ensure the accuracy of the statement regarding legal costs, some of the factors we may consider include:⁴

• the source of the material broadcast, including whether the broadcaster relied on an authoritative expert
• 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.

[17]  TVNZ has submitted that information about the payment of legal costs was obtained from two separate sources with knowledge of the complainant’s case. We requested further information from TVNZ about any steps taken by Ms Vance to verify the authenticity of the sources relied on for the story and the accuracy of the information provided by those sources.

[18]  In response, TVNZ assured the Authority that the reporter trusted the information she was provided with. It did not want to risk identifying the sources relied on, or breach the trust and confidentiality placed in the reporter when the information was supplied. Ms Vance did not disclose these sources.

[19]  We respect the reporter’s right to protect her sources. Where this right is being exercised, however, special care must be taken to ensure that the requirements of the standards are nevertheless met. In this case the complainant has submitted that on 8 December 2017, MFAT responded to the following question from Ms Vance: ‘I understand MFAT also paid for [the complainant’s] legal costs, around $50,000. Why?’ According to the complainant, MFAT responded: ‘Your statement that the Ministry paid the staff member’s legal costs is incorrect’. The broadcaster has submitted that Ms Vance elected not to include this statement in the broadcast, given previous information provided by MFAT had proven to be incorrect.

[20]  MFAT’s statement, however, directly contradicted information provided to Ms Vance by her sources. While Ms Vance had confidence in those sources, in our view it was highly misleading for the broadcast to omit any reference to the information provided being disputed by the department directly involved. It was important, therefore, for MFAT’s position to be presented alongside the allegations from anonymous sources, to ensure viewers were not misled about the key perspectives on the issue.⁵

[21]  We accept that the following comment was put forward from MFAT during this item:

MFAT officials wouldn’t be interviewed but said in a statement:

(Visual and voiceover): ‘The Ministry… is confident its actions in deciding to waive immunity were lawful and reasonable, and taken in good faith.’

[22]  No comment was put forward during the item, however, on the issue of payment of legal costs, either from the complainant or from MFAT. In our view, TVNZ’s failure to include MFAT’s countering comment was misleading and left the audience misinformed as to MFAT’s use of public funds.

[23]  For these reasons, we uphold this aspect of RK’s complaint under the accuracy standard.

[24]  We are satisfied that our decision to uphold this aspect of the complaint does not represent an unreasonable or unjustified limitation on the right to freedom of expression. We have emphasised above at paragraph [7] the value and public interest in this broadcast, and we do not wish to suggest that this item should not have been broadcast at all. Our view is that pertinent information was omitted from the item, which may have resulted in viewers being misled, and the inclusion of MFAT’s statement on the issue of legal costs would not unreasonably limit TVNZ’s right to freedom of expression.

Omission of information about circumstances and proceedings

[25]  The complainant has submitted that the reporter chose to broadcast only selective details about the circumstances leading up to MFAT’s decision, while omitting other relevant details, which was misleading. In response, TVNZ submitted that this information was irrelevant to the focus of the item, and further risked identifying the family. TVNZ says it was unaware of the family’s circumstances, and particularly their dual citizenship, at the time of broadcast.

[26]  As we have noted above in our discussion of freedom of expression, we agree that this item was focused on the decisions made by a large government department, and its alleged use of public funds. However, the complainant’s circumstances were also central to the story, as the ‘unprecedented’ situation was the catalyst for MFAT’s actions in waiving the complainant’s diplomatic immunity.

[27]  It does not appear that TVNZ was made aware of the family’s connection to the overseas posting, specifically the family’s dual citizenship, prior to broadcast. This information was not provided to TVNZ by its confidential sources. It was also not contained in MFAT’s OIA response referred to above, or, presumably, in MFAT’s response to additional questions. While the information was known to the complainant, RK did not return Ms Vance’s call prior to broadcast and did not give comment on this issue (see our findings under fairness below).

[28]  In these circumstances, we are reluctant to find that TVNZ did not make reasonable efforts to ensure the accuracy of this portion of the broadcast. We therefore do not uphold this aspect of the complaint.

Comments by legal expert

[29]  As we have outlined above in our summary of the broadcast, this item included excerpts from an interview with a legal expert, who provided comments on the complainant’s case and applicable legislation.

[30]  It is clear from the broadcaster’s submissions that the legal expert’s comments were intended to provide viewers with general information about the applicable law, based on his review of MFAT’s OIA response and email correspondence with Ms Vance.

[31]  However, it appears that the legal expert was provided with only limited information and did not have specific knowledge of the complainant’s case. As a result, these interview excerpts had the potential to mislead viewers.

[32]  We consider the excerpts implied that the legal expert had a more detailed knowledge of the complainant’s circumstances than may have been the case, particularly in relation to the decision to waive diplomatic immunity, alleged delays and the requirement for New Zealand child custody disputes to be heard in New Zealand. The broadcast did not clarify for viewers that the legal expert did not know all the details of the case, and in these circumstances, we do not consider the broadcaster made reasonable efforts to ensure this portion of the item was not misleading. Where expert comment is being relied upon and presented to viewers as authoritative, broadcasters have a responsibility to make it clear when the expert is commenting on general concepts, and when their comments relate to a specific situation, to ensure viewers are not misled.

[33]  We therefore uphold this aspect of RK’s complaint.

Was any individual or organisation taking part or referred to in the broadcast treated unfairly?

[34]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.

The parties’ submissions

[35]  RK submitted:

• The complainant was portrayed as someone who ‘misused diplomatic immunity’ as a ‘get out of jail free card’ to ‘evade local justice’, and was referred to as a ‘high flier’, which was insulting and derogatory.
• RK was not given a fair and reasonable opportunity to comment for the item and MFAT’s comments were not fairly presented during the item.
• While RK spoke to a lawyer at TVNZ on 8 December 2018, prior to the broadcast, RK said the lawyer had no knowledge of the issue and no detail was provided in Ms Vance’s voicemail on the morning of 11 December 2018. So RK was not aware of the nature or timing of the broadcast.
• The item caused the complainant’s children confusion and distress.

[36]  TVNZ submitted:

• The Oxford Dictionary defines ‘high flier’ as ‘a person who is or has the potential to be very successful’. This accurately represented the complainant’s standing and achievements.
• RK contacted TVNZ on 8 December 2017 and spoke to the lawyer for News and Current Affairs at TVNZ. In a file note of that conversation, the lawyer noted RK’s request for clarity on the angle of the story and RK’s concerns about the children being identified. 
• The lawyer spoke with RK again later that day and in a summary of the conversation, which was sent by the lawyer to the reporter by email, said that she had confirmed with RK that the story would not be broadcast over the weekend and that it would focus on MFAT’s decision to waive diplomatic immunity. The lawyer also confirmed which details (relating to RK’s posting location, the proceedings, and family) would or would not be broadcast. The complainant was therefore aware of the nature of the story and that the item was to be broadcast.
• Ms Vance agreed to phone the complainant on the morning of 11 December 2017 and left the complainant a voicemail. The complainant did not answer or return the reporter’s call.
• MFAT’s comment regarding the payment of legal costs was not included in the item, as this was not consistent with information from the reporter’s sources.

Our analysis

‘Get out of jail free card’ / ‘high flier’

[37]  The complainant has submitted that this item reflected negatively on their personal and professional reputation, by referring to RK as a ‘high flier’ and implying that they used the waiver of diplomatic immunity as a ‘get out of jail free card’.

[38]  We do not consider that viewers would have understood the item to be making these inferences about the complainant’s character. During the item, the reporter said that diplomatic immunity generally was ‘controversial when it’s used as a ‘get-out-of-jail-free-card’ to escape local justice’,⁶ but went on to explain that, in this case, immunity was waived for ‘an international custody battle’. We also do not consider that the reporter’s reference to the complainant as a ‘high flier’ was so unfair as to warrant intervention by the Authority.

[39]  We therefore do not uphold this aspect of the complaint.

Opportunity to comment

[40]  It is a fundamental principle of the fairness standard 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. What is fair and reasonable will depend on the circumstances.⁷

[41]  In relation to the complainant as an individual referred to during the broadcast, we note that the focus of the item was MFAT’s decision-making. However, we acknowledge that the complainant’s personal circumstances provided the catalyst for MFAT’s actions, and through the item’s reference to these circumstances, the item did reflect negatively on the complainant (whether or not RK was identified). While we do not consider the comments referred to above from paragraph [37] caused harm to the extent requiring our intervention, the item did imply that RK received treatment (including payment for legal costs) from the New Zealand government which was not justified.

[42]  The complainant initially spoke to a lawyer for News and Current Affairs at TVNZ on 8 December 2017 (prior to the broadcast of the item on 11 December 2017), after being informed by MFAT that TVNZ was seeking a response to questions, including on the issue of legal costs. The complainant has submitted that the lawyer had no knowledge of the issues to be covered in the item.

[43]  As noted above under TVNZ’s submissions, the lawyer’s file note of this conversation shows that the complainant sought clarity on the angle of the story and expressed concerns about the family being identified. RK also asked the lawyer how TVNZ had accessed RK’s private information.

[44]  TVNZ has submitted that the lawyer then spoke to the complainant a second time on 8 December 2017. An email, sent from the lawyer to Ms Vance following the second phone call, stated:

As discussed, I’ve just spoken to [RK] and confirmed that your story:

• Will focus on MFAT’s decision to waive [RK’s] diplomatic immunity
• Will mention that [RK] was a [location] diplomat and that the situation arose because of a divorce/custody dispute
• Won’t mention [RK’s] name, the city [RK] was in or the number of children [RK] has.

[45]  It appears to us then that RK initially contacted TVNZ, after being made aware by MFAT that TVNZ had approached it for comment. It is clear from the lawyer’s file note on 8 December 2017, following this initial phone call, that RK had some knowledge of the story (given RK’s concerns about the identification of the children involved). Given RK’s request for clarity on the story, the lawyer appears to have then sought further information, and later the same day returned RK’s call. The email, sent from the lawyer to the reporter, confirms that further information was provided to the complainant about the angle of the story and the information that would be contained in it.

[46]  The reporter then phoned the complainant on the morning of the broadcast (11 December 2017), providing an opportunity for the complainant to comment. This is not disputed by the parties and we understand that the complainant did not answer the reporter's call and did not attempt to contact the reporter again.

[47]  We consider that the complainant could reasonably be expected to be aware of the nature of the upcoming story, given the ongoing correspondence between MFAT and TVNZ, the fact that MFAT told the complainant that TVNZ was asking questions, which prompted RK to phone TVNZ directly, and the second phone call between the complainant and the lawyer, clarifying the nature of the broadcast and that it would not be broadcast over the weekend. RK was also aware that the reporter was to phone on Monday morning, so at least knew the story would be broadcast on Monday at the earliest. We consider that there was sufficient time between 8 December 2017 and the time of broadcast on the evening of 11 December 2017 for the complainant to provide comment on the story, if necessary.

[48]  In any event, and as we have noted previously, this item was focused on MFAT’s actions in waiving diplomatic immunity and the alleged subsequent payment of legal costs. As such, we consider that it was important, and reasonable, for TVNZ to approach MFAT for comment on the allegations. The item implied that MFAT’s action was unreasonable or unjustified, particularly as the decision to waive diplomatic immunity allegedly resulted in payment of public funds in settlement. As a result, and in the interests of fairness, TVNZ was required to provide MFAT with a fair and reasonable opportunity to comment for the item. TVNZ sought comment from MFAT prior to broadcast and a brief comment from MFAT was included in the item.⁸

[49]  However, the comment broadcast was only very limited and high level, and it did not refer to differing views on the issue of payment for legal costs. In the interests of fairness to MFAT we consider it was necessary for MFAT’s view on the issue of legal costs to be broadcast alongside the information provided by Ms Vance’s sources. While the broadcaster provided MFAT with the opportunity to respond to the allegations in the form of a brief statement during the broadcast, relevant portions of the statement, which countered the source information provided, were not broadcast and, in our view, this resulted in MFAT being treated unfairly.

[50]  We therefore uphold this aspect of the fairness complaint, finding that it was required, in the interests of fairness, for MFAT’s comment on the issue of legal costs to be presented during the item.

[51]  Finally, we note our view that it was fair and reasonable for TVNZ to approach MFAT, as the government department and the employer at the centre of the allegations, to respond on the matter and on the complainant’s behalf. This may not be the case in all fairness complaints, particularly where the employee is unfairly or unreasonably identified in a broadcast.

Impact on RK’s children

[52]  Guideline 11h to the standard states that individuals, and particularly children and young people, featured in a programme should not be exploited, humiliated or unfairly identified.

[53] The complainant has submitted that this broadcast had a detrimental impact on the children involved, particularly as the complainant was allegedly unaware the item would be broadcast and therefore did not have an opportunity to discuss the matter with the children beforehand.

[54]  While we have sympathy for the complainant in this respect, we do not consider the harm alleged to have been caused outweighed the value of this broadcast, both in terms of the right to freedom of expression and public interest. The broadcaster took clear steps, at the request of the complainant during the phone conversation on 8 December 2017, to ensure that the family was not identifiable during the broadcast. According to the broadcaster’s submissions, the complainant was therefore aware of the nature of the programme and when it was to be broadcast. We consider it was in the public interest for this item to be broadcast, provided reasonable care was taken to avoid harm being caused to the family.

[55]  We are satisfied that TVNZ took reasonable steps in these circumstances and find no breach of the fairness standard in this respect.

Did the item discuss a controversial issue of public importance which required the presentation of alternative viewpoints?

[56]  The balance standard (Standard 8) states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest. The standard exists to ensure that competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.

The parties’ submissions

[57]  RK submitted:

• RK was not offered an opportunity to provide comments, and comment from MFAT was omitted from the report.

[58]  TVNZ submitted:

• The focus of the item was not the complainant’s specific circumstances but MFAT’s decision to waive diplomatic immunity, which was in the public interest.
• Significant viewpoints on the issue were presented from the legal expert and MFAT.

Our analysis

[59]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.⁹

[60]  We are satisfied that this item discussed a controversial issue of public importance. MFAT’s actions in waiving the complainant’s diplomatic immunity, and the resulting payment of over $250,000 of taxpayer money, was an issue that would be of concern to most New Zealanders and excite conflicting opinion.

[61]  In these circumstances, it was necessary for the item to fairly present MFAT’s perspective, in order for viewers to be adequately informed about the matter reported. MFAT’s perspective was clearly a significant one in the context of the item.

[62]  As we have found above, differing perspectives on the issue of the payment of the complainant’s legal fees were not presented during the item. While the reporter was confident in her sources, in order for viewers to be properly informed, some comment that differing views existed in relation to this allegation was required. We therefore uphold this aspect of the balance complaint.

[63]  As the focus of this item was MFAT’s decision-making and the expenditure of public money, we consider it was MFAT’s views on the issue that were required in the interests of providing adequate balance, rather than the complainant’s. We therefore find the omission of the complainant’s perspective in this respect did not result in any breach of the balance standard.

Did the item breach any other broadcasting standards?

[64]  RK also raised the privacy (Standard 10), programme information (Standard 2) and children’s interests (Standard 3) standards in the complaint.

The parties’ submissions

[65]  RK submitted:

• While RK was not named during the item, they were identifiable beyond close family and friends, due to the item’s reference to their employment and the location of the posting.
• TVNZ should have notified the complainant so that the matter could be discussed with the children prior to the broadcast.

[66]  TVNZ submitted:

• Steps were taken by the reporter to ensure identifying information was not disclosed during the item. The complainant was made aware prior to broadcast that the item would refer to the location of the posting, and images used during the broadcast also included cities other than the location of the posting. Any alleged breach of privacy would have been proportionate to the high level of public interest in this item.
• Standards 2 and 3 were not applicable. 

Our analysis

[67]  We consider that the remaining standards raised by the complainant were either not applicable, or were not breached, for the following reasons:

• Privacy: The identifying information disclosed during this broadcast included that the complainant was employed by MFAT as a diplomat and the country of the complainant’s posting (alongside generic images of three cities). The complainant was not named. We do not consider sufficient specific information was disclosed during this broadcast to identify the complainant, beyond those family, close friends or colleagues who would reasonably be expected to know about the complainant’s circumstances and the proceedings at the centre of the story.
• Programme Information: This standard is concerned with ensuring programmes are correctly classified and appropriate audience advisories broadcast. 1 News is an unclassified news and current affairs programme and there was no content during this item requiring an audience advisory.
• Children’s Interests: Standard 3 is concerned with protecting the interests of child viewers generally. The potential harm to the complainant’s children specifically is dealt with above as an issue of fairness.

[68]  We therefore do not uphold these aspects of RK’s complaint.

Name suppression

[69]  As we have noted above at paragraph [10], while we have not upheld the privacy complaint in this instance, due to the nature and circumstances of this complaint, including the interests of the children involved, we have suppressed the parties’ names and other identifying details in our decision.

For the above reasons the Authority upholds aspects of the complaint that the broadcast by Television New Zealand Ltd of 1 News on 11 December 2017 breached Standards 8, 9 and 11 of the Free-to-Air Television Code of Broadcasting Practice.

[70]  Having upheld aspects of this complaint with respect to accuracy, fairness and balance, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

[71]  The complainant requested a copy of the information held by TVNZ about RK. In relation to orders, RK requested that TVNZ broadcast a statement during 1 News, summarising the Authority’s decision, and costs to the Crown of $5,000.

[72]  TVNZ submitted that the focus of the item was MFAT’s payment of legal costs to RK’s ex-partner. As this was undisputed, no further orders were warranted.

Our decision on orders

[73]  When the Authority upholds a complaint, whether in whole or in part, we may make orders, including directing the broadcaster to broadcast and/or publish a statement, and/or pay costs to the Crown.

[74]  In determining whether orders are warranted, the factors we take into consideration are:¹⁰

• 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
• the objectives of the upheld standard(s)
• 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 any harm caused)
• 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
• past decisions and/or orders in similar cases.

[75]  We have taken these factors into account in making our decision on orders.

[76]  We are unable to order TVNZ to provide the complainant with the information it holds about RK or the family, as this is not an order that is available for us to make under the Broadcasting Act 1989.

[77]  In terms of assessing the seriousness of the breach, the key issue in our view is the omission of MFAT’s comment that it denied payment of the complainant’s legal costs and the misleading nature of the interview with the legal expert featured in the programme.

[78]  We consider that TVNZ’s conduct in this case is at the low to medium end of the spectrum. While the complainant did not return Ms Vance’s call and so did not provide further comment on the story, TVNZ contacted MFAT and the complainant for comment prior to broadcast and some, albeit limited, comment was included in the broadcast from MFAT. Efforts were also made by TVNZ to avoid identifying the family involved.

[79]  As a result of TVNZ’s conduct, we have found that the broadcast caused harm by misleading audiences about MFAT’s use of public funds and its decision to waive the complainant’s diplomatic immunity, and MFAT was not provided with a fair and reasonable opportunity to comment for the item, which may have impacted on the trust and confidence audiences may have in the organisation.

[80]  In order to remedy the harm caused, the complainant has requested a broadcast statement. Given the complainant’s submissions regarding the impact of this story on the children, and the risk of further identifying the family, we do not think a broadcast statement is appropriate in this case. Publication of the decision is sufficient to correct the misleading impression created by the item and to draw attention to MFAT’s views on this issue.

[81]  We acknowledge that steps were taken by TVNZ in preparing this story to ensure its accuracy and to avoid harm to the complainant. While we have found these steps did not go far enough in the circumstances, in terms of responding to TVNZ’s conduct in this case, we consider that publication of the decision, with no further orders, is the appropriate response to the breach of standards.

Signed for and on behalf of the Authority

Peter Radich
Chair
24 August 2018

Appendix

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

1     RK’s formal complaint – 3 January 2018
2     TVNZ’s response to the complaint – 12 February 2018
3     RK’s referral to the Authority – 5 March 2018
4     RK’s further comments in support of referral – 3 April 2018
5     TVNZ’s response to the referral – 30 April 2018
6     RK’s further comments – 15 May 2018
7     TVNZ’s confirmation of no further comment – 21 May 2018
8     TVNZ’s submissions on the provisional decision and orders – 29 June 2018
9     RK’s submissions on the provisional decision and orders – 1 July 2018
10   TVNZ’s provision of further information – 6 August 2018
11   RK’s response to further information provided – 15 August 2018

¹  For example, Ministry of Social Development and Peterson and TVWorks Ltd, Decision No. 2011-072, at [148]

² Guideline 9b

³ Guideline 9a

⁴ Guideline 9d

⁵ See, for example, a previous decision by the Authority involving information provided by anonymous sources: Ministry for Primary Industries and MediaWorks TV Ltd, Decision No. 2016-092 at [29] to [31]

⁶ Likely referring to some of the high profile cases referred to here: Diplomatic immunity sought 62 times (NZ Herald, 6 February 2016) 

⁷ Guideline 11d

⁸ See paragraph [21] 

⁹ Guideline 8a

¹⁰ Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58