BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
20/20 – statement broadcast about a complaint upheld by the Authority – inaccurate – misleading – unfair

Findings
Standard 5 – statement broadcast accurate – no uphold

Standard 6 – not unfair – complainant did not take part nor referred to – no uphold

This headnote does not form part of the decision.

Summary

[1] TV3 was ordered to broadcast a statement about a complaint that had been upheld by the Broadcasting Standards Authority. The statement was broadcast on TV3 at the end of a 20/20 programme at approximately 8.30pm on 30 March 2003.

[2] Mark Scott complained to TV3 Network Services Ltd, the broadcaster, that the statement broadcast was inaccurate, misleading and unfair. As the producer of the item to which the statement related, he argued that the statement was incorrect because he had evidence to the contrary. As a result of the misleading statement, he argued that questions had been raised about his professionalism and, therefore, he had been dealt with unfairly.

[3] In response, TV3 said the statement was misleading but did not breach broadcasting standards. It declined to uphold the complaint.

[4] Dissatisfied with TV3’s decision Mr Scott referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaint.

Decision

[5] The members of the Authority have viewed the broadcast statement complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[6] TV3 was ordered to broadcast a statement after a complaint had been upheld by the Broadcasting Standards Authority. Decision No: 2003-006 related to a complaint by Mr Smith about a 20/20 item called "The Goons" screened on 9 June 2002. The statement required by the Authority was broadcast on TV3 at the end of 20/20 at approximately 8.30pm on 30 March 2003. The statement read:

In June last year an item on 20/20 reported a story about the activities of the Christchurch Emergency Response Unit, which was referred to by some as the "Goon Squad". The item concerned the existence and the activities of a specialised squad of prison officers.

Mr Smith a member of the Unit lodged a formal complaint stating that the programme was unbalanced and contained a number of inaccurate statements. Mr Smith also said that the programme was unfair and had caused him immense embarrassment.

The Broadcasting Standards Authority upheld the complaint that the item contained two factual inaccuracies concerning Mr Smith and that Mr Smith was dealt with unfairly. Based on documents before it, the Authority considered that Mr Smith did not have an opportunity to present his views on the allegations raised in the programme as he was constrained by his employment conditions.

The Authority has ordered TV3 to broadcast this statement.

The Complaint

[7] Mr Scott, the producer of the item "The Goons", argued that the statement was inaccurate and that he had been dealt with unfairly. He contended that the statement was inaccurate because he had provided evidence that proved that Mr Smith was authorised by his employer to speak to 20/20. He expressed his objection that his evidence had been disregarded.

[8] Mr Scott maintained that TV3 had breached the accuracy standard by broadcasting the statement, because it was aware that the statement was false and misleading. In his opinion, the statement should have specified the two inaccuracies found by the Authority, because the statement as read could cast doubt in the minds of viewers about the entire programme.

[9] Mr Scott said that he had been dealt with unfairly because TV3 had broadcast a statement, which had questioned his professionalism. In his view, TV3 had breached the fairness standard because the statement "was not a true reflection of the events surrounding the interview request, but was a clear distortion."

The Standards

[10] TV3 assessed the complaint under the standards nominated by the complainant. The Standards (and relevant Guidelines) in the Free-to-Air Television Code of Broadcasting Practice provide:

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Guidelines

5b  Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

5c  Broadcasters must ensure that the editorial independence and integrity of news and current affairs is maintained.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Guidelines

6a  Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.

6b  Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.

The Broadcaster’s Response to the Complainant

[11] TV3 declined to uphold the complaint. In relation to the accuracy standard, it accepted that the statement was misleading, as Mr Scott had endeavoured to present Mr Smith’s views, and had obtained approval from Mr Smith’s employer to interview him. However, it said that the statement broadcast did not breach broadcasting standards. It advised that the statement was ordered and approved by the Authority, and that, as a broadcaster, it "had no choice but to publish the statement required by the Authority."

[12] In declining to uphold a breach of the accuracy standard, TV3 maintained that it had correctly attributed that the statement was an order from the Authority, with which it was required to comply.

[13] As to the fairness aspect, TV3 argued that it had made "strenuous efforts to ensure that the statement accurately reflected" Decision No: 2003-006. TV3 considered that the statement "was not an accurate reflection of the events surrounding the interview request". However, TV3 declined to uphold a breach of the fairness standard for the reasons it had advanced in declining to uphold the accuracy standard.

[14] TV3 stated that it had tried to include in the statement the details of the inaccuracies upheld and, that Mr Smith’s employer had consented to him being interviewed. It advised that the Authority had not approved the statement containing this information, and had only approved the form that was broadcast. TV3 agreed that Mr Scott had been dealt with unfairly because, as the producer of the item, he was identified as being responsible for the matters raised in the statement.

[15] TV3 concluded:

The Standards Committee has considerable sympathy for your position and apologises to you for the unfortunate impact the reading of the ordered statement has had upon you and your professional reputation. However because of the statutory regime under which the Network operates it has not identified any breach of the relevant standards and accordingly declines to uphold the complaint.

The First Referral to the Broadcasting Standards Authority

[16] Dissatisfied with TV3’s decision, Mr Scott referred his complaint to the Authority. Mr Scott maintained that the "false, misleading and damaging statement" ordered by the Authority breached broadcasting standards. He stated that it was "unacceptable" that TV3 had found the statement inaccurate and unfair, but had concluded that there was no breach of the standards.

[17] Mr Scott requested an "agreed statement of clarification to be broadcast without delay." He noted that the issue was about credibility. "I attempt to disseminate clear accurate information that doesn’t mislead", wrote Mr Scott. He expressed his hope that the Authority also shared that interest.

[18] Mr Scott’s referral to the Authority also included a response he sent directly to TV3. The response to TV3 expressed his view that, despite its finding, its conclusion to decline to find a breach was incomprehensible. Mr Scott said that he understood from TV3’s decision that the Authority had breached broadcasting standards by requiring a statement that it knew was inaccurate and unfair. Accordingly, he claimed that both TV3 and the Authority had breached the Television Code.

The Second Referral to the Broadcasting Standards Authority

[19] In forwarding further information to the Authority, Mr Scott included a further response to TV3’s decision. Mr Scott argued that the Authority, by approving the statement contained in paragraph [6] for broadcast, had also misled viewers. He contended that neither TV3 nor the Authority was exempt from broadcasting standards. He reiterated his request for a broadcast statement for the damage to his reputation.

The Third Referral to the Broadcasting Standards Authority

[20] In an additional submission, Mr Scott sought to clarify his earlier submission. He noted that he wanted the Authority to review TV3’s decision which he described as "contradictory". Mr Scott requested that the Authority confirm the findings of TV3, and, in addition, to uphold a breach of the standards.

[21] Mr Scott maintained that the words in the statement "based on documents" did not redress the incorrect statement. He invited the Authority to find a breach of the standards, and that the most "constructive outcome" to redress the harm caused to him, was a broadcast statement which recorded a full account of the relevant facts.

The Authority’s Determination

[22] Standard 5 requires broadcasters, in the preparation and presentation of news and current affairs programme, to be truthful and accurate on points of fact. The complainant alleges that the statement broadcast was inaccurate in breach of Standard 5.

[23] The Authority accepts that the broadcast of the statement ordered by the Authority was a "programme" as defined by the Broadcasting Act 1989. It finds that the statement broadcast, which was approved by the Authority, was not inaccurate. In the Authority’s view the statement accurately represented the Authority’s ruling on Mr Smith’s complaint contained in Decision No: 2003-006.

[24] The Authority reached its decision – and ordered the statement for broadcast – on the basis of the information made available to it. The relevant information now relied upon by Mr Scott was not available to the Authority at the time of its decision. The Authority’s decision is accurate based on the relevant facts before it at the relevant time – and as a consequence (and irrespective of evidence produced at a later time) the statement ordered for broadcast is accurate in view of its decision. Accordingly, the Authority finds that Standard 5 was not contravened.

[25] Standard 6 requires the broadcaster to deal justly and fairly with any person taking part or referred to in a programme. Mr Scott argued that as a result of the inaccurate statement broadcast, he had been treated unfairly. In the Authority’s view, Mr Scott was not dealt with unjustly or unfairly as he neither took part, nor was he referred to in the statement broadcast. Consequently, the Authority declines to uphold this aspect of the complaint.

[26] The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

For the reasons above, the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
18 September 2003

Appendix

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

1.  Mark Scott’s Complaint to TV3 Network Services Ltd – 16 April 2003
2. TV3’s Response to the Formal Complaint – 19 May 2003
3. Mr Scott’s First Referral to the Broadcasting Standards Authority – 6 June 2003
4. Mr Scott’s Second Referral to the Authority – 16 June 2003
5. Mr Scott’s Third Referral to the Authority – 16 June 2003
6. TV3’s Response to the Authority – 23 June 2003