BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has not upheld a complaint that a Checkpoint segment about a media release issued by Forest and Bird stating that commercial fishing set nets were responsible for the deaths of an estimated 30 yellow-eyed penguins was unbalanced or unfair. The Authority found that Fisheries Inshore New Zealand Ltd was treated fairly by RNZ as it was contacted for a response to Forest and Bird’s statement prior to the broadcast. The Authority found this amounted to being given a fair and reasonable opportunity to comment for the programme before it was broadcast. The Authority also found that the item was balanced as RNZ broadcast a summary of the response sent by Fisheries Inshore during the Checkpoint segment. The Authority noted the importance of freedom of expression with respect to the examination and criticism of public and industry organisations and found that, on this occasion, any restriction on that freedom would be unjustified.

Not Upheld: Fairness, Balance

The broadcast

[1]  On 21 August 2019, Forest and Bird issued a media release stating that commercial fishing set nets were responsible for the deaths of an estimated 30 yellow-eyed penguins (hoiho).¹ Following the release, RNZ contacted Fisheries Inshore New Zealand Ltd[2] (Fisheries Inshore) for a response to the release at 1:07pm. Fisheries Inshore sent a response to RNZ that afternoon at 2:49pm. That evening at 6pm during Checkpoint RNZ broadcast a segment reporting on Forest and Bird’s media release. In addition to reporting on the release it featured a summary of Fisheries Inshore’s response and comment from Massey University Professor John Cockrem. An online article reporting on the release was also published that afternoon.

[2]  The item was broadcast on RNZ’s Checkpoint programme on 21 August 2019 on RNZ National. In considering this complaint, we have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The complaint

[3]  Seafood NZ submitted the broadcast breached the balance and fairness standards of the Radio Code of Broadcasting Practice for the following reasons:

• The Forest and Bird media release was ‘run unchallenged’ through Checkpoint despite RNZ having had a statement from Seafood NZ since 2.49pm.
• In the past 15 months, there have been three previous fairness and balance complaints against RNZ in relation to stories critical of the New Zealand seafood industry. These complaints were either upheld or contained an ‘admission’ from RNZ that the complaint ‘lacked balance’ or ‘did not meet the standards set in our editorial policies’.
• On two separate occasions, RNZ has pulled interviews from independent commentators whose narrative was supportive of the practices of the New Zealand fishing industry. RNZ has not responded to questions about why these ‘important balancing interviews’ were not broadcast.
• It is Seafood NZ’s view that RNZ is in breach of its charter to deliver fair and balanced reporting in regard to the fishing industry. ‘At best, it is unprofessional and at worst it is an anti-commercial fishing agenda that includes delaying or suppressing information that does not suit that narrative.’
• Seafood NZ requested that this complaint ‘be reviewed in the wider context of the earlier assurances’ of RNZ. Previously, RNZ has ‘assured the industry that they will revise internal processes and have clearly not done so.’
• Seafood NZ does ‘not have confidence’ that RNZ will ‘ensure fairness and balance in their dealings with this industry in the future without strong sanctions from the Authority.’

The broadcaster’s response

[4]  RNZ submitted the broadcast did not breach broadcasting standards for the following reasons:

• The broadcast featured Fisheries Inshore ‘doubting the claims made in the Forest and Bird statement.’
• The Authority is being asked to consider two interviews which were not broadcast. The broadcasting standards regime does not extend to content which is not broadcast.
• The previous complaints raised are ‘matters of historic record’ and they were not all upheld or ‘pursued in a formal sense’ (in one case because an opportunity was given for the industry to put their position).
• Every complaint should be determined on its own merits.
• The seafood industry ‘has been covered over 75 times in stories by RNZ this year and the complainant makes no observations about the majority of occasions when no issues of standards arose.’

Preliminary Issues

[5]  Seafood NZ have requested that we review the complaint in the ‘wider context of the earlier assurances from Radio NZ’ in reference to previous complaints and decisions. We note that our previous decisions provide important guidance regarding how the standards should be applied. However, our primary focus is to determine whether the specific broadcast nominated by the complainant breached broadcasting standards. Therefore we are unable to determine whether RNZ is demonstrating any ongoing bias against the fishing industry as suggested by the complainant. We are also only able to review and analyse information that is directly relevant to the broadcast complained about, in this case, the segment on Checkpoint, broadcast on 21 August 2019.

[6]  With respect to the complainant’s submission that RNZ are in breach of their charter, this is not a matter than can be determined by the Authority under the Broadcasting Act 1989.

[7]  We recognise a large portion of Seafood NZ’s complaint centres around RNZ allegedly publishing an unbalanced online article that did not feature Fisheries Inshore’s response until the evening of 21 August 2019. This online article falls within the jurisdiction of the New Zealand Media Council (formerly the Press Council) and therefore the broadcasting standards do not apply. Accordingly, in our analysis we will focus on whether the relevant Checkpoint segment breached broadcasting standards.

The relevant standards

[8]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in any broadcast. Its purpose is to protect the dignity and reputation of those featured in programmes.³

[9]  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.

Our analysis

[10]  Our consideration of this complaint starts with consideration of the right to freedom of expression and the important role it plays in a liberal democratic society. The right to freedom of expression includes the broadcaster’s right to impart ideas and information and the public’s right to receive that information. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[11]  The potential harm on this occasion is to the public perception and reputation of Fisheries Inshore and the commercial fishing industry as a result of an allegedly unbalanced broadcast and unfair treatment by RNZ.

[12]  It is an important role of journalists and the media in general to scrutinise and hold public and industry organisations to account for their actions. Critiquing and challenging these institutions promotes free and frank public discourse and discussion, which is an important feature of the right to freedom of expression and our democratic society. However, while the value of this type of expression is high, and the threshold for us to intervene when such public facing organisations are involved is also high, we may intervene where there is potential for harm that is disproportionate to the public interest. This may occur when there is unfair or unbalanced criticism at a level which may mislead the public and unduly damage the reputation of, and public trust in, those criticised. Our task is to strike an appropriate balance between these interests. In this case, as we expand upon below, we have found that any restriction on the broadcaster’s freedom of expression would be unjustified.

Fairness

[13]  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. We have also previously found that the ‘fishing industry’ is not an organisation for the purposes of this standard.⁴

[14]  However Fisheries Inshore was referred to in the broadcast. We have therefore focussed on whether Fisheries Inshore was treated fairly by RNZ. As discussed at paragraph [5] we are limited to determining whether Fisheries Inshore as a fishing industry representative organisation was treated fairly with respect to the broadcast complained about. We have looked specifically at whether Fisheries Inshore, as an organisation portrayed in the broadcast with the potential to be adversely affected, was given a fair and reasonable opportunity to comment.⁵

[15]  A consideration of what is fair depends on the nature of the programme (eg news and current affairs, factual, dramatic, comedic or satirical). It also depends on the nature of the person or organisation alleged to have been treated unfairly.⁶

[16]  It is well established in the Authority’s decisions that the threshold for finding unfairness to a layperson unfamiliar with dealing with the media will be much lower than for a government entity or a public-facing agency that is used to being the subject of robust scrutiny and regular media coverage.⁷

[17]  Considering the nature of Forest and Bird’s statement, discussing an alleged link between fishing practices and a diminishing hoiho population, we find this broadcast had the potential to adversely affect Fisheries Inshore.

[18]  On this occasion we note that RNZ actively sought a statement from an industry representative prior to the broadcast. RNZ then included a summary of the statement provided by Fisheries Inshore in the broadcast. We note that RNZ did not include the entirety of the statement in the broadcast. However we consider the broadcast contained the thrust of Fisheries Inshore’s position that Forest and Bird was ‘scaremongering’, that it questioned the way Forest and Bird estimated the 30 deaths and that ‘starvation, disease, predation by sharks and dogs are the real reason [hoiho] numbers are declining.’ We consider that Fisheries Inshore was provided with a fair and reasonable opportunity to comment and that the essence of its view was presented in the programme.

[19]  Accordingly we find Fisheries Inshore was treated fairly by RNZ on this occasion.

[20]  Therefore we do not uphold the complaint under the fairness standard.

Balance

[21]  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’.⁸

[22]  The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.⁹ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.¹⁰

[23]  Checkpoint is a news and current affairs programme. Considering the importance of conservation, native birds and sustainable fishing to New Zealand, we consider the possible effect fishing is having on the hoiho population to be a controversial issue of public importance for the purposes of this standard.

[24]  While this was a straightforward news report on Forest and Bird’s statement, we find it amounted to a ‘discussion’ for the purposes of this standard as RNZ sought analysis and comment from several parties in the broadcast, rather than just reporting on the statement.

[25]  The assessment of whether a reasonable range of other perspectives has been presented includes consideration of a number of factors, including:¹¹

• whether the programme purported to be a balanced examination of an issue
• whether the programme was clearly signalled as approaching a topic from a particular perspective
• whether the programme was narrowly focused on one aspect of a larger, complex debate
• whether listeners could reasonably be expected to be aware of views expressed in other coverage, including coverage in other media.

[26]  Ultimately, the objective is to enable the audience to arrive at an informed and reasoned opinion (which is important to the operation of an open and democratic society).¹² We consider listeners were able to do so on this occasion.

[27]  While the majority of the broadcast focussed on Forest and Bird’s position, the broadcast also featured comment from independent expert Professor Cockrem and a summary of Fisheries Inshore’s response to Forest and Bird’s statement, a response that offered an opposing point of view to that of Forest and Bird and Professor Cockrem.

[28]  As discussed at para [18] under the fairness standard, only a summary of Fisheries Inshore’s statement was broadcast. However we consider the information that was broadcast adequately reflected its position. Accordingly we consider the presentation of differing viewpoints in the broadcast would have enabled listeners to arrive at their own informed and reasoned opinion.

[29]  Therefore we do not uphold the complaint under the balance standard.

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

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

4 February 2020

Appendix

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

1  Seafood NZ’s complaint to RNZ – 22 August 2019

2  RNZ’s decision – 19 September 2019

3  Seafood NZ’s referral to the BSA – 30 September 2019

4  RNZ’s further comments – 15 October 2019

5  Fisheries Inshore’s statement to RNZ – 21 August 2019

¹ Set nets push penguins closer to extinction (Forest and Bird, 21 August 2019)
² Fisheries Inshore is a non-profit organisation that was established by quota owners, Annual Catch Entitlement (ACE) holders and fishers to work together to advance their interests in inshore finfish, pelagic and tuna fisheries. (see <https://www.inshore.co.nz/>)
³ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁴ Seafood New Zealand Ltd and Radio New Zealand Ltd, Decision No.2018-054 at [34]
⁵ Guideline 11d
⁶ Guideline 11a
⁷ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁸ Guideline 8a
⁹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹⁰ As above
¹¹ Guideline 8c
¹² Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18