Scott and Mediaworks TV Ltd - 2017-092 (16 February 2018)
- Peter Radich (Chair)
- Paula Rose
- Te Raumawhitu Kupenga
- Mark Scott
BroadcasterMediaWorks TV Ltd
[This summary does not form part of the decision.]
An item on Newshub by political editor Patrick Gower reported on National Party Leader Bill English’s claim that the Labour Party would raise income tax if they won the 2017 General Election. Mr Gower stated that the National Party was ‘deliberately spreading misinformation’ about Labour’s income tax policy. The Authority did not uphold a complaint that Mr Gower deliberately misled the public prior to the election. The Authority emphasised the importance of freedom of political expression, particularly in an election year. The Authority considered significant viewpoints on the issue discussed were adequately presented in the broadcast and within the period of current interest, enabling the audience to form their own opinions. The Authority also found that the comments complained about were statements of analysis and opinion, rather than statements of fact, so the accuracy standard did not apply.
Not Upheld: Balance, Accuracy
 An item on Newshub by its political editor Patrick Gower reported on National Party Leader Bill English’s claim that the Labour Party would raise income tax if Labour won the upcoming 2017 General Election. The news reader introduced the item by saying, ‘National Leader Bill English is sticking to his claim that Labour is going to raise income tax, even though it’s wrong.’ During the item, Mr Gower said the National Party was ‘deliberately spreading misinformation that Labour wants to raise income tax, when it doesn’t’.
 Mark Scott complained that the report was inaccurate and that Mr Gower deliberately misled the public prior to the general election.
 The issues raised in Mr Scott’s complaint are whether the broadcast breached the balance and accuracy standards of the Free-to-Air Television Code of Broadcasting Practice.
 The item was broadcast on 20 September 2017 on Three. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
The right to freedom of expression and political speech
 The starting point for our determination is to recognise the importance of the right to freedom of expression, and specifically in this case the importance of political speech. This includes the right of broadcasters, political parties and candidates, as well as political commentators or analysts, to impart ideas and information about party policies and election matters, as well as the public’s right to receive that information. As we said in a number of decisions regarding the 2017 General Election,1 this is an important right in a democratic society and is particularly important in the lead up to a general election, when political parties and candidates are seeking to influence voters, and audiences are seeking information to enable them to make informed voting decisions.
 We may only interfere and uphold a complaint where to do so would impose a limitation on the right to freedom of expression which is reasonable and justified in a free and democratic society.2 In deciding whether any limitation on the right to freedom of expression is justified, we first consider the value and public interest in the broadcast, and then weigh that value against the level of actual or potential harm that might be caused by the broadcast. Given the importance of political speech and of enabling political discourse in the lead up to a general election, we will generally only interfere to limit the exercise of that speech when we consider that the harm is great.
Did the item discuss a controversial issue of public importance, which required the presentation of significant viewpoints?
 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
 Mr Scott submitted:
- Mr Gower’s and Newshub’s coverage of National’s claims regarding Labour’s income tax was unbalanced.
- National’s claim about Labour’s income tax policy only became a ‘controversial issue’ once Newshub reported on it and labelled National’s claim a lie.
 MediaWorks submitted:
- It agreed the issue of the National Party’s and Bill English’s claims about Labour’s tax policy amounted to a controversial issue of public importance for the purposes of the balance standard.
- The broadcast included a range of opposing points of view in relation to the issue (including, notably, from Mr English himself), which satisfied the requirements of the balance standard.
 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’.3
 We accept that discussion of Labour’s tax plan in the lead up to the general election, in particular National’s criticisms, was a controversial issue of public importance. This was an important and widely covered issue for New Zealand voters in the lead up to the election, which had the potential to impact on their voting decisions.
 However, we are satisfied that the requirements of the balance standard were met, and that viewers were presented with sufficient alternate perspectives, both during the segment and during the period of current interest, to enable them to form their own views on the topics discussed.
 Looking first at the segment itself, we acknowledge that the segment came across as highly critical of National’s comments regarding Labour’s income tax policy. However, the political and controversial nature of the National Party’s statements created a reasonable expectation that the party and Mr English would face robust criticism in the interests of political discourse.
 Mr English was interviewed for the item and we consider he was given a reasonable opportunity to present his position regarding Labour’s proposed income tax policy and the assertion that National’s stance on the issue was ‘wrong’ and had been ‘deliberately spreading misinformation’. Mr English was shown in the item a number of times, responding to Mr Gower’s questions and explaining the reasons behind National’s claims. We therefore consider that competing viewpoints were sufficiently presented during the broadcast to enable the audience to form their own reasoned opinion on the issue.4
 Additionally, there was significant coverage of the issue of Labour’s tax plans and National’s claims within the period of current interest, in the weeks leading up to the election.5 Labour had publicly declared that, if elected, they would not increase income tax.6 Labour’s 2017 Election Policy page on their website also explicitly stated that ‘Labour is not proposing any changes to current personal income or corporate tax rates.’7 Viewers could therefore reasonably be expected to be aware of, and/or have access to, a wide range of reporting of significant views on the issue.
 For these reasons, we do not uphold the complaint under the balance standard.
Was the broadcast inaccurate or misleading?
 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.
The parties’ submissions
 Mr Scott submitted:
- Mr Gower’s assertion that the National Party was ‘deliberately spreading misinformation that Labour is raising income tax’, was inaccurate. Mr Gower misattributed the Labour Party’s ‘lie’ as being National’s lie, and deliberately misled viewers.
- Mr Gower’s assertions were presented as statements of fact, not opinion.
- The news reader’s opening statement was also presented as fact (see paragraph  above).
- The rates of income tax prescribed as applicable from 1 April 2018 (at the time of broadcast) were established in New Zealand law. The Labour Party clearly stated that, if elected, a different set of rates should apply from 1 April 2018.
 MediaWorks submitted:
- Mr Gower provided his own analysis of Mr English’s claim that Labour would raise income tax if elected, characterising the claim as ‘misinformation’.
- It was clear from coverage at the time that there was valid conjecture around the accuracy of Mr English’s claim, and Mr Gower drew a reasonable conclusion as to its veracity.
- The broadcast overall was accurate and would not have misled viewers.
 Guideline 9a to the standard states that the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.
 A fact is verifiable: it is something that can be proved right or wrong, while an opinion is someone’s view:8 it is contestable, and others may hold a different view. In determining whether a statement is fact or opinion, the following factors are relevant:9
- the language used in the statement
- the language used in the rest of the item (there could be a statement of fact within an opinion piece or surrounded by opinions)
- the type of programme and the role or reputation of the person speaking
- the subject matter
- whether evidence or proof is provided
- whether the statement is attributed to someone.
 Having regard to these factors, we consider the statements complained about were distinguishable as statements of analysis and opinion. The statements required value judgements and political analysis of the National Party’s claims regarding Labour’s income tax policy, rather than being facts capable of being easily proven as accurate or inaccurate.
 We accept that Mr Gower’s presentation of this analysis could be seen to be hyperbolic and potentially inflammatory, and in this respect we acknowledge the complainant’s concerns about the level of neutrality expected of journalists when reporting on important political issues.
 However, the Authority has previously recognised that viewers reasonably expect to receive some commentary and analysis from political reporters and political correspondents.10 In this case, audiences could reasonably expect that Mr Gower, as a prominent political reporter, would give his opinion on political matters, particularly during the election period.
 Additionally, as we have said in relation to balance, Mr English’s position on the issue was clearly presented within the item, and there was a wide range of information and coverage available on this issue around the time of the broadcast. We therefore do not consider that viewers were likely to be misled or misinformed as a result of this particular item. Recognising the high value and importance of political speech, and in this case of political discourse regarding income tax policy, we find the harm alleged did not outweigh the right to freedom of expression.
 Accordingly, we do not uphold the complaint under the accuracy standard.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
16 February 2018
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Mark Scott’s formal complaint – 20 September 2017
2 MediaWorks’ response to the complaint – 18 October 2017
3 Mr Scott’s referral to the Authority – 14 November 2017
4 MediaWorks’ response to the Authority – 30 November 2017
5 Mr Scott’s final comment – 6 December 2017
6 MediaWorks’ confirmation of no further comment – 21 December 2017
1 For example, see: Curtis and Television New Zealand Ltd, Decision No. 2017-065; Rameka and Māori Television Service, Decision No. 2017-070; and Cullen and Television New Zealand Ltd, Decision No. 2017-072.
2 See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6.
3 Guideline 8a to Standard 8 – Balance
4 Balance Commentary, Broadcasting Standards in New Zealand Codebook
5 See, for example: https://www.stuff.co.nz/national/politics/97100197/lies-damn-lies-and-elections-the-biggest-mistruths-this-campaign (Stuff, 21 September 2017); http://www.newshub.co.nz/home/election/2017/09/patrick-gower-national-playing-post-truth-politics.html (Newshub, 20 September 2017); https://thespinoff.co.nz/politics/05-09-2017/the-11-7-billion-dollar-question-steven-joyce-and-grant-robertson-cant-both-be-right/ (5 September 2017).
6https://www.radionz.co.nz/news/election-2017/337857/labour-rules-out-income-tax-increase (RNZ, 23 August 2017)
8 Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 62
9 As above
10 See, for example, Woods and MediaWorks TV Ltd, Decision No. 2015-062