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 alleging an item on AM breached several standards including accuracy. The broadcast attributed several acts of violence against police, during the February–March 2022 protest and occupation of Parliament grounds, to protesters. The complainant stated there was no evidence the events occurred, and that there was no evidence the violence was caused by protesters. The complainant also submitted the broadcast implied a reporter was ‘manhandled’ on Parliament grounds when in fact she was on Lambton Quay. The Authority found the broadcast was not materially misleading and the broadcaster made reasonable efforts to ensure accuracy. The fairness and discrimination and denigration standards did not apply.

Not Upheld: Accuracy, Fairness, Discrimination and Denigration

The broadcast

[1]  During the 23 February 2022 episode of AM, presenter Melissa Chan-Green interviewed former Deputy Prime Minister, Winston Peters, about his presence at the February–March 2022 protest and occupation of Parliament grounds. The segment included the following:

Chan-Green: We’ve heard the Prime Minister label the behaviour of protesters, and attacks on police in Wellington as disgraceful. They have flung faeces, one has driven a car into a crowd and verbally abused officers. New Zealand First Leader Winston Peters toured the camp and he joins us now. Welcome to the show this morning… The Police Commissioner says that if the peaceful protesters leave, they believe the unlawful behaviour will then stop. Could your visit have encouraged the protesters to stay?

Peters:           I hope to encourage the protesters to demand that they be heard. It's astonishing that on the 16th day, no one is open to dialogue from Parliament, from any political party, hasn't been to see them, and that is utterly unprecedented…The reality is that if the Prime Minister and her Cabinet were prepared talk to them, I would assure that this could de-escalate real fast. But if it doesn't, I fear there's going to be further problems and violence.

Chan-Green: In terms of your timing for visiting and in terms of the violence you mention, they've been there for 15 days. You visit the day after faeces had been thrown at police and some kind of substance thrown. Police officers being treated in hospital. Why visit at that time?...Doesn’t it send a message that you are condoning the behaviour of the protesters there…

Peters:           What are you trying to say? Are you trying to say that a few extremist actions, against a massive majority who are law abiding and peaceful protesters, and for some of who’ve lost 30 years of their career, their jobs, and everything, is to be the most prominent issue? And you'll always get the odd nutcase, but the reality is, from what I saw, the people that are being gaslit by the media and dare I say politicians are simply not that crowd, and I’ve talked to a lot of them.

Chan-Green: A number of the protesters have actually left because they don't condone the behaviour that has gone on in recent days. So a number of the people that you’re perhaps referring to have actually left.

Peters:           Well with respect, you just making it up as you go along, that's not the circumstance. If you go down and have a look today, there is the same number as there was yesterday and it's actually building… I'm astonished to see who they are and what their backgrounds are. But the reality is that if they’d have been spoken to, if they’d have been listened to, if there had been some dialogue, then this would not be where it is today. It is preposterous. You will not find any part in our country's history where the politicians en masse have signed a pact not to talk to protesters.

Chan-Green: Your feelings on the actions of those who are perhaps being more abusive physically among the protesters? There was a group around you who were escorting, that were manhandling journalists there, including our own political editor, Jenna Lynch, who is heavily pregnant. Do you condone that behaviour?

Peters:           Oh poor you. You got made. Excuse me, you were told at the start that I'm here to listen to the protesters. Not you. Not a bunch who have been bought out by a $64 million bribe

Chan-Green: So manhandling is okay in that instance?

Peters:           Or who have been gaslighting and a virtue signalling and doing all sorts of things to mislead the public. And the fact of the matter is, you all knew it well before you even asked the first question that I had asked to speak to the people, and that you people could wait to a later time. You're not the centre of this issue, and I wish you would start acting like the Fourth Estate and not like a bunch of Fifth Columnists.

The complaint

[2]  Corina Shields complained the broadcast breached the accuracy, discrimination and denigration, and fairness standards of the Free-to-Air Television Code of Broadcasting Practice:

Accuracy

• It was inaccurate to report that protesters had thrown faeces at police, had driven a car at police, and had thrown an unknown substance at police.
• There was no evidence these events had occurred, and if the events had occurred, there was no evidence the violent actions were carried out by protesters.
• The item stated ‘heavily pregnant’ Newshub reporter Jenna Lynch was ‘manhandled’ by protesters, and implied this took place on Parliament grounds, but Discovery’s response said she was not within the protest site when this happened.

Discrimination and Denigration

• A lot of violent actions were being blamed on protesters, including the throwing of substances.

Fairness

• Protesters did not have a fair or reasonable opportunity to comment on any of the actions being blamed on them, leading to unfair condemnation by the wider public.

The broadcaster’s response

[3]  Discovery did not uphold the complaint for the following reasons:

Accuracy

• ‘The presenter referenced events that had taken place at the protest including the throwing of faeces and a car being driven into a crowd’, so it was not inaccurate to refer to these incidents as being carried out by the protesters.
• The broadcast acknowledged ‘the incidents were likely carried out by a minority element of the overall protest’ and that ‘some protesters had left the occupation because they did not condone the behaviour.’ 
• The audience ‘had the benefit of Mr Peters' response to questions about these incidents, as he opined that the majority of people there were “law-abiding and peaceful protesters.”’

Fairness

• The complainant did not specify any specific individuals or organisations that had been treated unfairly.

Discrimination and denigration

• ‘The protests at Parliament attracted a disparate group of protesters on a range of issues.’ They were not ‘a section of society as intended by discrimination and denigration standard’. 
• Even if they did form a section of society requiring protection, ‘the Broadcast did not contain the necessary level of malice that is required to find a breach of this standard.’

The standards

[4]  The purpose of the accuracy standard¹ is to protect the public from being significantly misinformed.² It states broadcasters should make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.

[5]  The discrimination and denigration standard³ states broadcasters should not encourage discrimination against, or denigration of, any recognised ‘section of the community’. It aims to protect sections of the community from verbal and other attacks, and to foster a community commitment to equality.⁴

[6]  The fairness standard⁵ protects the dignity and reputation of those featured in programmes.⁶ It ensures individuals and organisations are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

[7]  We have watched the broadcast and read the correspondence listed in the Appendix.

[8]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.⁷

[9]  At the outset, we acknowledge the protest was made up of many different groups, and many of the people at the protest appeared to be there peacefully.

[10]  However, the role of the media is to report on newsworthy events, and any violence enacted during a protest is of high public importance, meaning there is a high value in the expression in this broadcast.

Accuracy

[11]  The complainant alleged the item contained two inaccuracies by:

(a)  blaming violent behaviour on protesters without evidence

(b)  implying a Newshub reporter was ‘manhandled’ on Parliament grounds when in fact she was on Lambton Quay.

[12]  We have considered each of the alleged inaccuracies below.

(a) Violent behaviour was blamed on protesters without evidence

[13]  The complainant submitted the broadcast had no evidence for the statements that: faeces was thrown at police; a car was driven at police; and substances were thrown at police. They also argued there was no evidence these acts were carried out by protesters (‘a lot of violent behaviour has been blamed on protesters without evidence’).

[14]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.⁸

Was the broadcast inaccurate or misleading?

[15]  The standard is concerned only with material inaccuracies. Technical or other points that are unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.⁹

[16]  Under this limb we note:

• There were multiple reports by police that the events broadcast occurred, and that the events were perpetrated by protesters.¹⁰
• Viewers would not expect the broadcaster to be able to identify, and understand, the motivation for each person at the protest. There were several thousand people at the protest, and such an analysis would be impossible.
• It is not materially inaccurate to refer to those people at the protest acting violently, as protesters, and the statements would not have misled the audience.

[17]  On the basis of the information above, we had no reason to consider the broadcast was not materially accurate. However, we go on to consider whether, in the circumstances, the broadcaster made reasonable efforts to ensure the accuracy of the statements in the item.

Did the broadcaster make reasonable efforts to ensure the broadcast was not misleading?

[18]  The protest and occupation of Parliament grounds was a fast changing event, and there was high public interest in reporting on the protest. Members of the public rely on the media for information on significant events occurring in New Zealand and abroad. The public had a right to know about the scale and changing events that were occurring during the protest. In this respect, the media delivers an important public service and it is crucial this is done in a timely way, as information becomes available. We note further that at the point in time at which this broadcast occurred, media access to Parliament grounds was significantly restricted. In such a situation, the media is justified in reporting facts as stated by officials on the ground, including the Police, particularly as the events spoken of were in relation to the experiences of the Police.

[19]  In assessing what information was available to the broadcaster, we have noted the following media releases by the Police, dated 21 and 22 February 2022, which were released prior to the broadcast:¹¹

• On 21 February 2021, the Police reported ‘Some officers also had human waste thrown over them by protestors.’¹²
• On 22 February 2022, the Police reported ‘Police continue to be extremely appalled by the behaviour exhibited by protesters at Parliament. Three officers were taken to hospital for a medical assessment this morning after being sprayed with a stinging substance that is still to be determined. All three are reported to be doing well. Other officers were fortunate to escape injury after a person deliberately drove the wrong way down Molesworth Street and stopped just short of colliding with them.’¹³

[20]  Further we note there was wide coverage of these events in other media, the Prime Minister made statements regarding some of these events, and there was significant footage of a car being driven at police, during an operation to clear parts of Molesworth St of protesters.¹⁴

[21]  We find that in the circumstances, the broadcaster made reasonable efforts to ensure the accuracy of the programme, and that it was reasonable to report facts as stated by the Police.

(b) A Newshub reporter was ‘manhandled’ by protesters at Parliament

[22]  In the original complaint, the complainant was concerned Newshub had created a ‘Worksafe issue’ by ‘knowingly putting an employee’ who was pregnant into an unsafe situation (the protest). Discovery responded the incident referred to in the broadcast took place on Lambton Quay, and the reporter ‘was not within the occupation and protest site.’

[23]  The complainant went on to allege the broadcast was therefore inaccurate as it implied the reporter was on Parliament grounds.

[24]  As noted above, the accuracy standard is concerned only with material inaccuracy. The statement made by Chan Green was:

There was a group [of protesters] around you who were escorting [you], that were manhandling journalists there, including our own political editor, Jenna Lynch, who is heavily pregnant.

[25]  We note the broadcast did not specify the reporter was on Parliament grounds when she was manhandled, but rather that she was manhandled by protesters who were escorting Peters. There is footage of the reporter on Lambton Quay, being apologised to by those escorting Peters, for manhandling her.¹⁵

[26]  We find the broadcast was materially accurate in its description of the event and would not have affected viewers’ understanding of the programme as a whole.

[27]  Accordingly, we do not uphold this complaint under the accuracy standard.

Remaining standards

[28]  We consider the remaining standards either did not apply or were not breached:

• Discrimination and denigration: The standard applies only to recognised ‘sections of the community’, consistent with the grounds for discrimination listed in the Human Rights Act 1993.¹⁶ Like other broad groups previously considered by the Authority, we do not consider the protesters who occupied Parliament grounds to be a ‘recognised section of the community’ to which the standard applies.¹⁷ 
• Fairness: The fairness standard is concerned with preventing undue harm to the dignity and reputation of any person or organisation taking part or referred to in a programme.¹⁸ Similar to previous complaints regarding people who oppose vaccines, we do not consider the many different groups and individuals who made up the protest amount to an ‘organisation’ to which this standard applies.¹⁹ In any event, Peters made several comments during the segment in defence of the protesters, including stating the ‘massive majority’ of those at the protest were peaceful and law-abiding. We also note the previous day Newshub broadcast, in full, a letter from the protest leaders, with their account of the violence that was occurring.²⁰

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
21 June 2022

Appendix

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

1  Corina Shields’ complaint to Discovery – 1 March 2022

2  Discovery’s response to the complaint – 24 March 2022

3  Shields’ referral to the Authority – 20 April 2022

4  Discovery’s confirmation of no further comments – 22 April 2022

¹ Standard 9 of the Free-to-Air Television Code of Broadcasting Practice
² Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
³ Standard 6 of the Free-to-Air Television Code of Broadcasting Practice
⁴ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁵ Standard 11 of the Free-to-Air Television Code of Broadcasting Practice
⁶ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁷ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
⁸ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁹ Guideline 9b
¹⁰ “Police Update: Protest Traffic Management operation” (21 February 2022) New Zealand Police | Ngā Pirihimana o Aotearoa <www.police.govt.nz>; “Update: Protest activity” (22 February 2022) New Zealand Police <www.police.govt.nz>; Newshub “Wellington Protesters ‘have had their say’ – Police Association’s Chris Cahill” (22 February 2022) Youtube <www.youtube.com>
¹¹ “Police Update: Protest Traffic Management operation” (21 February 2022) New Zealand Police <www.police.govt.nz>; “Update: Protest activity” (22 February 2022) New Zealand Police <www.police.govt.nz>
¹² As above
¹³ As above
¹⁴ Jenna Lynch “NZ First leader Winston Peters tours Parliament protest camp as police prepare for another showdown in central Wellington” Newshub (online ed, New Zealand, 22 February 2022); William Hewett, Rachel Sadler, and Ashleigh Yates “As it happened: Latest on Parliament protest, COVID-19 community outbreak” Newshub (online ed, 22 February 2022)
¹⁵ Jenna Lynch “NZ First leader Winston Peters tours Parliament protest camp as police prepare for another showdown in central Wellington” Newshub (online ed, New Zealand, 22 February 2022)
¹⁶ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
¹⁷ Gray, Scott, Vickers & Vink and Mediaworks TV Ltd, Decision No. 2019-020, at [25]
¹⁸ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
¹⁹ Donald and Television New Zealand Ltd, Decision No. 2021-033, at [21]
²⁰ William Hewett, Rachel Sadler, and Ashliegh Yates “As it happened: Latest on Parliament protest, COVID-19 community outbreak” Newshub (online ed, 22 February 2022)