BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

A complaint from Seafood New Zealand Ltd (Seafood NZ) about an interview between Morning Report host Guyon Espiner and Dr Russell Norman of Greenpeace was not upheld. Dr Norman and Mr Espiner discussed Greenpeace’s view that the Ministry for Primary Industries (MPI) had been ‘captured’ by the fishing industry, and why MPI has not prosecuted anyone for under-reporting whiting catches, with reference to a leaked MPI report from 2012. While RNZ acknowledged the interview did not meet its internal editorial guidelines, as it should have at least acknowledged the views of other stakeholders, the Authority did not find any breach of broadcasting standards. The Authority found the interview was unlikely to mislead listeners as it was clear that the interview comprised Dr Norman’s and Greenpeace’s opinions and analysis. The Authority noted that, although the interview was clearly presented as being from Greenpeace’s perspective, Mr Espiner did challenge Dr Norman during the interview, and another broadcast later the same day contained comment from both Seafood NZ and MPI. The Authority emphasised the importance of holding central government departments to account in a way that is balanced and fair, and concluded that in this instance the broadcaster achieved this and did not breach broadcasting standards.

Not Upheld: Accuracy, Balance, Fairness, Discrimination and Denigration

Background

[1]  On 24 May 2018 Greenpeace released a Ministry of Fisheries report entitled ‘2011 Compliance Risk Profile of the West Coast/East Coast South Island Hoki Fisheries.’¹ The report ‘identified risks and issues in relation to: fisheries reporting, fishing practices, vessel electronic weighing and recording systems…’ amongst other areas.²

[2]  On 29 May 2018 Greenpeace also released a Ministry for Primary Industries (MPI) report entitled ‘2012 Compliance Risk Profile of the Sub-Antarctic Southern Blue Whiting Fisheries’.³ This report identified ‘a number of compliance risks’ including the ‘underreporting of carton weights’⁴ and ‘the illegal disposal of Southern Blue Whiting’.⁵

The broadcast

[3]  Following the release of these reports, Morning Report host Guyon Espiner interviewed Greenpeace’s executive director, Dr Russell Norman. Mr Espiner introduced the interview by saying:

Greenpeace says that previously suppressed reports show that MPI has been captured by the fishing industry… Russel Norman of course is the executive director of Greenpeace – he is with me in the Auckland studio. Good morning… it is a big claim to say that MPI has actually been captured by the fishing industry – can you back it up?

[4]  Dr Norman then discussed the reasons for his view that MPI had been ‘captured’ by the fishing industry. He discussed ‘regulatory capture’ and the idea that MPI as the regulator has come to identify with the fishing industry’s point of view, which, according to Dr Norman, has ‘very powerful financial incentives to under report and dump fish’.

[5]  Dr Norman also questioned why MPI has not prosecuted anyone for under-reporting fisheries catches (among other things), despite the findings of its various investigations. Dr Norman said there is need for an independent inquiry into MPI’s alleged failure ‘to enforce the rules on this repeated, systematic, illegal behaviour, which they themselves [MPI] discovered’. He said the 2012 report showed a similar pattern of under-reporting and dumping of fish to that in the hoki industry, referenced in the 2011 fisheries report Greenpeace had previously released.

[6]  The interview aired at 7.50am on 30 May 2018 on RNZ National.

The complaint

[7]  Seafood New Zealand Ltd (Seafood NZ) complained to RNZ that the interview breached the accuracy, balance, fairness and discrimination and denigration standards of the Radio Code of Broadcasting Practice.

[8]  Seafood NZ is an organisation that ‘works closely with the seafood industry through five sector-specific entities: Aquaculture New Zealand, Deepwater Group, Fisheries Inshore NZ, NZ Rock Lobster Industry Council, and Paua Industry Council. It has a focus on key strategic initiatives and promotes sustainable, nutritious and responsibly-caught seafood.’⁶

[9]  In relation to balance, Seafood NZ submitted:

• RNZ presented Greenpeace’s views without any challenge or balance from either Mr Espiner or affected parties. Neither Seafood NZ (the industry representative group) nor any fishing company was approached for comment.
• After raising concerns with RNZ about the interview, Seafood NZ was only offered a ‘head-to-head’ interview with Forest and Bird; it should be given equal time and opportunity as Greenpeace was given, ie, a standalone interview.

[10]  Seafood NZ argued the interview breached the accuracy standard because:

• The broadcaster made no effort to determine the accuracy of the claims made by Greenpeace.
• The interview was based on the incorrect premise that the report was a compliance report (ie, intended to result in prosecution), when it was actually a risk assessment intended to better inform fisheries management. It said any failings identified in the report were subsequently addressed.
• The broadcaster did not seek clarification or input on the accuracy of Greenpeace’s interpretation of the risk assessment.

[11]  Seafood NZ considered the item breached the fairness standard because the industry was not informed of the interview, nor asked to participate. It said the interviewer did not challenge Greenpeace’s derogatory portrayal of the industry and did not offer the industry an opportunity to defend itself. On the grounds it denigrated the reputation of the industry, the complainant also believed the discrimination and denigration standard was breached.

The broadcaster’s response

[12]  In response to the complaint, RNZ acknowledged the interview did not meet its own editorial policies and that the interview should have at least acknowledged other stakeholders’ positions or invited some input. However RNZ nevertheless did not consider that any of the nominated broadcasting standards had been breached, for the following reasons:

Balance

• It is doubtful whether the specific topic of an internal government report into the whiting fishery is a controversial issue as envisaged by the standard.
• The interview was clearly approached from the perspective of hearing Greenpeace’s views on the report.
• The item was not a ‘discussion’. It was a short five-minute piece and was not an in-depth look at industry issues, but covered just one aspect of one component of fisheries management.
• In any event balance was provided in a Midday News item later the same day.

Accuracy

• The original complaint from Seafood NZ did not allege any specific inaccuracy.

Fairness

• Seafood NZ was not mentioned in the interview so the organisation was not treated unfairly.
• The interview focused on the actions of MPI rather than the fishing industry, and the industry/fishermen are not an ‘organisation’ for the purposes of the standard.

Discrimination and denigration 

• RNZ (incorrectly) asserted this standard was not raised in the original complaint and therefore could not be considered by the Authority at the referral stage.

The standards

[13]  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 receiving misinformation and thereby being misled.

[14]  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 arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.

[15]  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.

[16]  The discrimination and denigration standard (Standard 6) protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

[17]  In consideration of the complaint the Authority found the accuracy and balance standards were the most relevant to Seafood NZ’s concerns, and so we have focused our determination on those issues.

Our findings

[18]  In order for democracy to operate fairly and freely, it is critical that the government and the departments through which government operates are held to account and scrutinised. However when this happens in the public domain it must be done in a way that is balanced and fair to all parties involved.

[19]  For reasons that we outline below, we have found that in this instance the broadcaster achieved this, and that the broadcast did not breach broadcasting standards. The interview carried a high level of public interest and explored a legitimate issue, through the lens of Greenpeace. We have not identified any real or potential harm arising from the interview that justifies us intervening and limiting the right to freedom of expression.

Accuracy

[20]  We note first that our role is not to determine the accuracy of Dr Norman’s comments regarding MPI and the fishing industry. Rather our role is to determine whether the accuracy standard applied to this broadcast, and if so, whether RNZ made reasonable efforts to ensure all material statements of fact were accurate, and that the interview did not mislead listeners.

[21]  Seafood NZ did not identify in its original complaint to RNZ any specific statements it considered to be inaccurate. In its referral to the Authority, Seafood NZ has argued, in essence, that the item wrongly implied the MPI report was a compliance report which may result in prosecution, rather than a report undertaken to examine risks.

[22]  The accuracy standard only applies to statements of fact. It does not apply to statements which are clearly distinguishable as analysis, comment or opinion.⁷ From the beginning of the interview it was clear that it was Greenpeace’s perspective being put forward as an environmental organisation. The interview comprised Dr Norman’s opinions and analysis, as a Greenpeace representative, regarding previous MPI investigations, MPI’s alleged lack of action and his view that MPI had been ‘captured by the [fishing] industry’. He spoke generally about MPI’s investigations and questioned why MPI had not prosecuted despite the findings of its various investigations that catches were under-reported.

[23]  We think listeners would have understood that the statements made by Dr Norman were Greenpeace’s analysis and conclusions drawn from the leaked reports. Leaving aside the purpose of the MPI report referred to, we note the report evidently did identify instances of under-reporting catches. The fact that, in Seafood NZ’s view, this report was intended to examine risks, rather than to be evidential, was not likely to have significantly affected the audience’s understanding of the broadcast as a whole or of Greenpeace’s position.

[24]  Overall, we do not consider the complainant has identified any inaccurate statements of fact, or that the interview was misleading in the manner suggested. Therefore we do not uphold the complaint under the accuracy standard.

Balance

[25]  We first considered whether the interview discussed a controversial issue of public importance which triggered the requirements of the balance standard. In our view the allegation that MPI had been ‘captured by the industry’, and its alleged failure to prosecute for under-reporting catches, was such an issue.

[26]  The next question we asked ourselves was whether the broadcaster made reasonable efforts to provide balance either within the same programme or within the period of current interest, taking into account: the nature of the discussion and the issue; how the item was presented, including the treatment of the issue by the host Mr Espiner; and whether countering views were available in surrounding coverage.

[27]  Having considered these relevant factors, we have found the broadcaster satisfied its requirements under the balance standard, and the standard was not breached.

[28]  The complainant’s primary concern in terms of balance was that neither Seafood NZ nor anyone else in the fishing industry was approached for comment. However the nature of the item and the discussion influences the level of balance required. As we have said in relation to accuracy, the item was clearly framed from the outset as being from Greenpeace’s perspective, following its release of the MPI report. Additionally, MPI was the focus of the item and of Greenpeace’s views, rather than the industry, as it was MPI’s reports, its perceived lack of action in response and perceived lack of objectivity that were being discussed. In this context we do not consider the industry’s perspective was required in order to achieve balance within the item.

[29]  We also note that balance can be achieved in a variety of ways, and not only by including direct comment from an opposing perspective. An alternative way is through the interviewee being challenged on their views or subjected to devil’s advocate questioning. In this instance, while no other views were acknowledged during the interview, Mr Espiner did challenge Dr Norman’s opinion, putting to him that he was ‘making a big claim [that MPI has been captured by the industry]… can you back it up?’ Mr Espiner also put to Dr Norman that the leaked reports on which Greenpeace was basing its views ‘are less impressive given their age’, noting they were six to seven years old.

[30]  Finally, we consider balance was provided in surrounding coverage of this issue. An item on Midday Report broadcast the same day as the interview included comment from both MPI and Seafood NZ as follows:

• ‘But the Ministry [MPI] document states the report was never meant to be evidential. It adds the state of the fishery was healthy, and fishing had minimal impact on the marine eco-system.’
• ‘Seafood NZ says changes in how the total fish weight is calculated means some fishing companies actually under-caught their allowable limit.’

[31]  MPI’s response was also included in an online RNZ article the day following the interview:⁸

Greenpeace has complained that no one was prosecuted. But MPI has said the report was never meant to be evidential, rather it was under-taken to examine risks.

[32]  For these reasons we do not uphold the complaint under the balance standard.

Fairness

[33]  The fairness standard applies only to individuals and organisations either taking part or referred to in a broadcast. Seafood NZ was not explicitly referred to in the item. While numerous references to ‘the industry’ as a whole were made, we do not think these can be considered references to Seafood NZ as an ‘organisation’ to which the fairness standard applies.

[34]  We also do not consider ‘the industry’ is an organisation for the purposes of this standard. We have previously found that a group of people with shared interests does not amount to an ‘organisation’.⁹

[35]  Therefore the fairness standard does not apply and we do not uphold this part of the complaint.

Discrimination and denigration

[36]  The discrimination and denigration standard only applies to recognised sections of the community as per the Human Rights Act 1993. ‘The industry’ is not a recognised section of the community for the purposes of this standard. In any event while Dr Norman’s comments were critical of MPI and the industry they did not carry the malice or invective required to breach this standard.

[37]  Therefore we do not uphold the discrimination and denigration complaint.

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

Signed for and on behalf of the Authority

Te Raumawhitu Kupenga
Authority Member
19 September 2018

Appendix

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

1       Seafood NZ’s formal complaint – 5 June 2018
2       RNZ’s response to the complaint – 2 July 2018
3       Seafood NZ’s referral to the Authority – 3 July 2018
4       RNZ’s response to the referral – 27 July 2018

¹2011 Compliance Risk Profile of the West Coast/East Coast South Island Hoki Fisheries (Ministry of Fisheries, 21 March 2012)

²  As above, page 5

³  2012 Compliance Risk Profile of the Sub-Antarctic Southern Blue Whiting Fisheries (Ministry for Primary Industries, December 2013)

⁴  As above, page 4

⁵  As above, page 46 

⁶ https://www.seafoodnewzealand.org.nz/about/who-is-seafood-nz/

⁷ Guideline 9a

⁸ MPI says procedures changed since under-reported catch found (RNZ, 31 May 2018)

⁹ Eg, Loder and Dennis and MediaWorks Radio Ltd, Decision No. 2018-011, at paragraph [37]