BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 4 (controversial issues - viewpoints) – broadcaster made reasonable efforts to present SKY's perspective over the course of the programme – not upheld

Standard 5 (accuracy) – no inaccurate or misleading statements of fact – not upheld

Standard 6 (fairness) – SKY's perspective was conveyed – not treated unfairly – not upheld

This headnote does not form part of the decision.

Broadcast

[1] On the morning of 26 August 2008, several items on Radio New Zealand National discussed the fact that SKY Television had secured the broadcasting rights in New Zealand for both the upcoming winter and summer Olympic Games.

[2] A news item broadcast during the Morning Report programme at 6.04am reported that Television New Zealand Ltd had said that "the Beijing Olympic Games may have been the last people can watch without paying for a subscription". The reporter said:

TVNZ's chief executive Rick Ellis says SKY TV securing the broadcasting rights for the next Olympics may result in a large number of households being locked out of viewing the 2012 event in London. He says New Zealand doesn't have any regulatory framework to protect against universal access to free sport, which means the highest bidder for such events wins. SKY television declined to comment on speculation over its planned Olympic coverage. But it has said it will offer 24-hour-a-day coverage during the games on its subscription channels, and on Prime which is free to watch.

[3] At 6.41am during the Morning Report headlines the host said "No more blanket coverage on free-to-air TV. Reaction to that coming up later on Morning Report".

[4] At 7.26am on Morning Report, the host said "[TVNZ] says...viewers might have to pay to see the Olympics next time because SKY Television has won the rights to the London games". A Morning Report reporter quoted Rick Ellis as having said that "there'll be a large number of New Zealand homes who won’t have access to the Olympics in a free-to-air environment". Mr Ellis said:

In the end if it ends up entirely in a SKY environment then, largely speaking, you’re going to have the Olympics in a pay television environment, and a modest offering in a free-to-air environment on Prime which is hardly universal, to the extent that it currently has an audience share of about 5%.

[5] The item concluded by repeating that SKY had "declined to comment on speculation over its planned Olympic coverage. But it has said it will offer 24-hour-a-day coverage of the events during the competition on both its free-to-air channel Prime, as well as its subscription channels".

[6] At 8.31am, an item similar to the 6.04am news item was broadcast. It concluded by saying "SKY Television has declined to comment on speculation over its planned Olympics coverage".

Complaint

[7] SKY Network Television Ltd made a formal complaint about the items to Radio New Zealand Ltd, the broadcaster. SKY said its director of communications had been contacted by Morning Report on the evening of 25 August and asked whether television coverage of the next Olympics would be on free-to-air television. The director of communications had declined to be interviewed as SKY was still finalising its plans, but provided the reporter with the following information:

• Prime would offer New Zealand viewers 22 hours of free-to-air coverage per day for the 16 days of the competition
• In addition, there would be a minimum of six 24-hour dedicated Olympic channels (144 hours per day) on SKY's digital platform
• This would be complemented by a range of new media options, including simulcast on mobile, online through SKY's websites and video-on-demand using IPTV.

[8] SKY said that Morning Report on 26 August had included comments such as the host saying "No more blanket coverage on free-to-air TV. Reaction to that coming up later on Morning Report" and that TVNZ had said that the Beijing Olympic Games may have been the last that people could watch on free-to-air television.

[9] These comments had been supplemented by quotes from TVNZ's chief executive Rick Ellis, SKY wrote, that suggested that a large number of New Zealand homes would not have access to the Olympics on free-to-air television. It noted the following statement by Mr Ellis:

In the end if it ends up entirely in a SKY environment then, largely speaking, you're going to have the Olympics in a pay television environment, and a modest offering in a free-to-air environment on Prime which is hardly universal, to the extent that it currently has an audience share of about 5%.

[10] In SKY's view, it "would have been useful for Radio New Zealand to have researched this issue further". Prime was on SKY's digital platform, which reached 46% of New Zealand homes, and it also reached 91.3% of homes through Kordia’s analogue free-to-air terrestrial network.

[11] SKY said that the International Olympic Committee (IOC) had chosen Prime and SKY based on their capacity to reach the best possible audience on a variety of broadcast platforms, including free-to-air television, subscription television and digital media. It quoted the IOC as having said:

We are delighted to be working with Prime and SKY who came to us with a complete package that will allow not only increased coverage of the Olympic Games but also the promotion of the Olympic sports and Olympic values beyond the 16 days of competition.

This will be valuable in allowing sports fans unrivalled coverage of the Olympic Games in New Zealand.

[12] The complainant noted that the RNZ reporter had said that SKY would "offer 24-hour-a-day coverage during the games on its subscription channels, and on Prime which is free to watch". SKY said that this statement was inaccurate as its television coverage would be "a minimum of 166 hours and not 24 hours per day". It also complained that this statement had been omitted from the 8.30am news bulletin, which only featured TVNZ's comments.

[13] In SKY's view, the broadcast of the items breached Standards 4, 5 and 6 of the Radio Code of Broadcasting Practice.

Standards

[14] Standards 4, 5 and 6 of the Radio Code of Broadcasting Practice are relevant to the determination of this complaint. They provide:

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance 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.

Standard 5 Accuracy

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/or
• does not mislead.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[15] RNZ agreed that the issue of future coverage of the Olympic Games was a controversial issue of public importance to which Standard 4 applied. It said that both news bulletins and the news package had indicated that SKY had declined to comment. Information from a media release on SKY's website had been included in the following form:

But [SKY] has said it will offer 24-hour-a-day coverage of the events during the competition on both its free-to-air channel Prime, as well as its subscription channels.

[16] RNZ said comment had also been sought from Waikato University media lecturer Dr Geoff Lealand. It found that reasonable opportunities were given for significant points of view to be broadcast within the period of current interest. RNZ concluded that Standard 4 had not been breached.

[17] Turning to Standard 5 (accuracy), RNZ noted that SKY's complaint did not identify any alleged inaccuracies apart from a statement in the 6am news bulletin which said:

But [SKY] has said it will offer 24-hour-a-day coverage during the games on its subscription channels, and on Prime which is free to watch.

[18] Even if SKY had advised the reporter that there would be a minimum of 166 hours of coverage a day, RNZ wrote, this was not something that would have been reported as it was potentially confusing for listeners. In any event, the broadcaster maintained that the point was covered in the items by saying that there would be 24-hour-a-day coverage on SKY's "subscription channels". This would have left the audience with the clear impression that there would be more than one lot of 24-hour-a-day coverage. RNZ wrote that, because of this, there was no inaccuracy. It did not uphold this part of the complaint.

[19] The broadcaster noted that SKY's fairness complaint did not identify which particular parts of the broadcast were unfair or why the coverage may have been unfair. It observed that SKY had declined to be interviewed and had referred the RNZ reporter to the media release that was quoted in the coverage. In these circumstances, RNZ contended that it had taken reasonable steps to ensure that SKY was represented on the programme and that its position was presented in a straightforward manner. It found that Standard 6 (fairness) was not breached.

Referral to the Authority

[20] Dissatisfied with the broadcaster's decision, SKY referred its complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. Looking at Standard 4 (controversial issues - viewpoints) it repeated the information that had been given to the Morning Report reporter on the evening before the broadcast. In addition, SKY's director of sport had already been interviewed by RNZ on 29 November 2007 and had said:

The 2012 Olympic Games in London, at least 22 hours of a 24 hour period each day for the course of the Olympics on free-to-air through Prime and for SKY Television a minimum of six dedicated Olympic channels for live coverage of the events.

[21] SKY contended that its proposed Olympics coverage had been "completely misrepresented" by RNZ, and that the correct information was already on record with RNZ.

[22] With respect to Standard 5 (accuracy), SKY maintained that it was unreasonable for RNZ to suggest that listeners would have been confused if it had reported that the coverage was on both Prime (free-to-air) and SKY (subscription). It stated that the following statements from the items were inaccurate:

• "No more blanket coverage on free-to-air TV"
• "The Beijing Olympic Games may have been the last people can watch without paying a subscription”"
• "Viewers may have to pay to see the Olympics next time because SKY Television has won the rights to the London Games"
• "There will be a large number of New Zealand homes who won’t have access to the Olympics in a free-to-air environment"
• "Largely speaking, you're going to have the Olympics in a pay television environment and a modest offering in a free-to-air environment on Prime"
• "A large number of households being locked out of viewing the 2012 event in London".

[23] The complainant argued that the above statements were inaccurate because Prime would screen 22 hours of Olympics coverage per day – an increase of more than 80% above the 12 hours screened by TVNZ. Further, Prime reached 91.3% of New Zealand homes free-to-air, and 748,576 households (46% of homes) through SKY.

[24] Noting RNZ's claim that it had not identified which parts of the coverage were unfair, SKY said that it had felt this to be unnecessary. It was obvious from the complaint that there was a negative theme throughout the broadcasts about Prime and SKY coverage of the Olympics, it said.

[25] The complainant noted that the broadcaster had failed to mention that SKY's director of communications had contacted RNZ at approximately 6.40am on the morning of the broadcasts after hearing the programme build-up and initial statements. He had advised RNZ that the information was incorrect and again provided the correct information to be broadcast. SKY contended that listeners had been provided with "an extremely one-sided and grossly inaccurate view of the 2012 Olympic Games television coverage".

Broadcaster's Response to the Authority

[26] Looking first at Standard 4, the broadcaster repeated that SKY’s position had been presented in the items. It wrote:

The fact that Radio New Zealand did not use the exact information that it was allegedly proffered does not mean there was a breach of the standard. Clearly, their significant point of view was mentioned during the period of current interest therefore no further issues arise.

[27] RNZ contended that the interview with SKY's director of sport on 29 November 2007 was irrelevant, except to suggest that the period of current interest on the topic had been open for some time.

[28] With respect to Standard 5, RNZ maintained that it would have been confusing to the audience to report that there would be a minimum of "166 hours" of coverage per day.

[29] RNZ noted that SKY had identified six alleged inaccuracies in its referral which were not outlined in its original complaint. It maintained that these points should not be considered by the Authority. Bearing in mind that the Authority might consider some or all of the points, it addressed each comment in its response.

"No more blanket coverage on free-to-air TV"

[30] RNZ said that this comment was not made in isolation; it was part of the headlines broadcast at 6.43am and followed the statement, "and the Olympics – a big hit with viewers, but what will happen in 2012?" and a quote from Geoff Lealand. RNZ contended that "No more blanket coverage on free-to-air TV?" was in fact a rhetorical question, not a statement of fact.

"The Beijing Olympic Games may have been the last people can watch without paying a subscription"

"Viewers may have to pay to see the Olympics next time because SKY Television has won the rights to the London Games"

[31] RNZ said that the above statements were both direct quotes attributed to TVNZ, which had been reported accurately.

"There will be a large number of New Zealand homes who won't have access to the Olympics in a free-to-air environment"

"Largely speaking, you're going to have the Olympics in a pay television environment and a modest offering in a free-to-air environment on Prime"

[32] The broadcaster noted that the above statements were made by TVNZ's chief executive, and it contended that they had been reported accurately. It said that the same item had included comments from Mark Jennings of TV3 and Dr Geoff Lealand, as well as SKY's position on the matter. This material had provided listeners with "considerable context" in which to place Mr Ellis’s opinions, it said.

"A large number of households being locked out of viewing the 2012 event in London"

[33] RNZ noted that the full quote from the item was:

TVNZ's chief executive Rick Ellis says SKY TV securing the broadcasting rights for the next Olympics may result in a large number of households being locked out of viewing the 2012 event in London.

[34] Prefacing the statement with "may result in" showed that it was clearly Mr Ellis's opinion, RNZ wrote.

[35] RNZ concluded that there had been no breach of the accuracy standard.

[36] Turning to Standard 6 (fairness), RNZ contended that the matters raised by SKY had already been appropriately dealt with under Standards 4 and 5. It contended that no further issues arose under fairness.

[37] In conclusion, the broadcaster said that the heart of the complaint lay in the fact that SKY had declined to be interviewed. As a result, RNZ had relied on documented information available on SKY’s website, and independent comment from a media academic. The fact that SKY was unhappy with the opinions expressed by TVNZ's chief executive was irrelevant, RNZ said. The New Zealand Bill of Rights Act 1990, and in particular section 14 relating to freedom of expression, specifically allowed for those opinions to be broadcast.

Complainant's Final Comment

[38] Referring to the host's statement "no more blanket coverage on free-to-air TV", SKY said that this was factually incorrect because Prime would be offering viewers 22 hours of Olympics coverage per day. This information had been provided to RNZ prior to the broadcast, it wrote.

[39] SKY acknowledged that representatives from TVNZ and TV3, and Dr Geoff Lealand were entitled to express their opinions, but maintained that it was unacceptable to broadcast "woefully inaccurate" information such as stating that SKY had "declined to comment" when information had been supplied.

[40] Referring to RNZ's assertion that at the heart of the complaint lay the fact that SKY had chosen not to be interviewed, the complainant said:

The fact that SKY declined to be interviewed on air should have had absolutely no bearing on the outcome of the news item as we provided RNZ with comprehensive and up to date details of our 2012 Olympic Games coverage - for some reason this was not used.

It is a common practice to provide information to a reporter in this way for radio and television news items and in the past even with RNZ, the end result has been acceptable. We can only speculate that the inclusion of even just one short sentence such as, "22 hours of 2012 Olympic Games free-to-air coverage per day on Prime" would have completely changed the tone of the broadcast and would not have really worked in with the negative strand which prevailed.

Broadcaster's Final Comment

[41] RNZ maintained that its use of the information from SKY’s press release adequately represented its position. It contended that the statement in the 8.30am bulletin that SKY had declined to comment was accurate.

[42] The broadcaster also provided an affidavit from its journalist to the effect that SKY's director of communications had not provided the information outlined in paragraph [7] in their conversation prior to the broadcast.

Authority's Request for Information from the Broadcaster

[43] Noting that it had only been dealt with under Standard 5, the Authority offered RNZ an opportunity to make submissions on whether Rick Ellis’s statement that "there will be a large number of New Zealand homes that won't have access to the Olympics in a free-to-air environment" breached Standards 4 and 6.

[44] RNZ noted that SKY's original complaint was general in nature and did not place any of the arguments under individual standards. It contended that this part of the complaint had not been included under Standard 4 and 6 in SKY’s referral to the Authority, and therefore it should not be considered.

[45] In case the Authority was minded to consider the point under those standards, RNZ maintained that neither was breached. With respect to Standard 4 (controversial issues - viewpoints) it noted that references had been made in the broadcast to SKY offering 24-hour-a-day coverage on both its subscription and free-to-air channels. Listeners, it said, had been alerted to the fact that another significant point of view existed.

[46] Looking at Standard 6 (fairness), the broadcaster said that it was not unfair to omit the fact that Prime reached 91.3 percent of homes. What was important, in RNZ's view, was that Prime's audience share was only about 5 percent.

Authority's Request for Information from the Complainant

[47] The Authority asked SKY to explain the basis for the statement in its press release that Prime reaches "more than 91% of homes". It also asked SKY for the percentage of New Zealand homes that actually receive Prime free-to-air.

[48] In response, SKY supplied the following information:

• 46% of New Zealand homes have SKY - Prime is on the digital platform
• 92.1% of the New Zealand population is in the Prime coverage area [according to 2005 data supplied by BCL/Kordia]
• the number of households that actually receive Prime is 86%, as per a Nielsen Media survey from 2007 (this included reception via satellite and UHF).

Further Response from the Broadcaster

[49] RNZ noted that SKY had not given a figure for the percentage of New Zealand homes actually receiving Prime free-to-air, as requested by the Authority. Further, if 86 percent of homes were receiving Prime, RNZ noted that (based on there being approximately 1.4 million households in New Zealand) this left in excess of 150,000 households that could not view Prime. It contended that Mr Ellis's comment that "a large number of New Zealand homes won't have access to the Olympics in a free-to-air environment" was reinforced by this figure.

Further Response from the Complainant

[50] SKY reiterated its view that the proposed Olympics coverage had been misrepresented by RNZ in the items on Morning Report, despite the fact that it had provided "full and complete information" prior to the broadcast.

Further Response from the Broadcaster

[51] RNZ noted that the complainant's recollection and assertions of providing its reporter with information were irreconcilable with the journalist's sworn affidavit. It wrote that the Statistics New Zealand official estimate placed the number of New Zealand households at 1,612,500. SKY's confirmation that 14 percent of those households could not receive Prime, which represented 225,750 households or homes, supported Mr Ellis’s comments.

Authority's Determination

[52] The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 4 (controversial issues – viewpoints)

[53] Standard 4 of the Radio Code of Broadcasting Practice requires broadcasters to make reasonable efforts, or give reasonable opportunities, to present significant points of view when controversial issues of public importance are discussed. During the Morning Report programme on 26 August 2008, several items discussed whether a large number of New Zealand households might not receive free-to-air coverage of the next Olympic Games. In the Authority's view, this was a controversial issue of public importance to which the balance standard applies.

[54] SKY argued that the items were in breach of Standard 4 because they failed to include significant information which SKY's director of communications provided to RNZ prior to the broadcast. The Authority notes that SKY's representative and the RNZ journalist have provided differing accounts on that point. SKY's representative said that he was contacted by the journalist and asked "if TV coverage of the next Olympics would be on free-to-air TV". He said he declined to be interviewed but gave the journalist the following information:

• Prime would offer New Zealand viewers 22 hours of free-to-air coverage per day for the 16 days of the competition
• In addition, there would be a minimum of six 24-hour dedicated Olympic channels (144 hours per day) on SKY's digital platform
• This would be complemented by a range of new media options, including simulcast on mobile, online through SKY’s websites and video-on-demand using IPTV.

[55] In a sworn affidavit, the RNZ journalist said that during a brief conversation lasting approximately one minute she twice asked SKY's representative if she could record a statement from him concerning "speculation that the Beijing Olympics would be the last Olympics to be broadcast free-to-air". She said the SKY representative declined to be interviewed on the record, and instead referred her to a statement on SKY's website. It was on this that she based the following statements which were included in the two items at 6.01am and 7.26 am:

• 6.01am SKY television declined to comment on speculation over its planned Olympic coverage. But it has said it will offer 24-hour-a-day coverage during the games on its subscription channels, and on Prime which is free to watch.
  
  
• 7.26am SKY television declined to comment on speculation over its planned Olympics coverage. But it has said it will offer 24-hour-a-day coverage of the events during the competition on both its free-to-air channel Prime, as well as its subscription channels.

[56] Irrespective of the conflicting accounts from SKY and RNZ, the Authority finds that the above statements were sufficient to represent SKY's perspective in respect of the controversial issue of public importance - that is, whether a large number of New Zealanders might not receive free-to-air coverage of the next Olympics.

[57] The Authority notes that the broadcast was not discussing SKY's full package of Olympics coverage; in fact, the number of subscription channels showing the Olympics and the "new media options" were irrelevant to the issue of whether free-to-air viewers would miss out. Accordingly, of the information which SKY has argued should have been included in the programme, only the first bullet point – that Prime would offer 22 hours per day of coverage – was relevant.

[58] In the Authority's view, the statements at the conclusion of the 6.01am and 7.26am items were adequate to inform listeners, first, that SKY would be showing the Olympics on Prime which was free-to-air, and, second, that there would be 24-hour-a-day coverage of the Olympics. Given that the actual coverage on Prime will only be 22 hours a day, the Authority finds that the statements in the items in fact created a more favourable impression of SKY's coverage than was being offered.

[59] However, the Authority notes that this information was not provided in the 8.31am item, which concluded with the sentence:

SKY Television has declined to comment on speculation over its planned Olympics coverage.

[60] If this had been the only item on Morning Report that day, the Authority would have had no hesitation in finding that RNZ failed to provide listeners with SKY's perspective. However, because the relevant information was included at 6.01am and again at 7.26am during the course of the entire Morning Report programme, the Authority finds that RNZ made reasonable efforts to convey SKY's perspective that the Olympics would receive substantial coverage on its free-to-air channel Prime.

[61] The Authority notes that, even if Morning Report was to be segmented into individual items for the purposes of consideration, RNZ would still have met the requirement to present SKY's perspective within the period of current interest, as is allowed under Standard 4.

[62] It is clear from SKY's complaint that it would have preferred RNZ to include a more comprehensive statement, including the amount of coverage that would be included on its six digital channels. The Authority observes that this point may well have been included in the programme had SKY's representative provided audio comment. However, in the Authority's view, a finding that RNZ was required to broadcast information that was not relevant to the controversial issue under discussion would interfere with RNZ's editorial freedom, and it would not be a reasonable or justified limitation on the broadcaster's right to freedom of expression guaranteed by section 14 of the Bill of Rights Act 1990.

[63] Accordingly, the Authority finds that Standard 4 was not breached on this occasion. It declines to uphold this part of the complaint.

Standard 5 (accuracy)

[64] In its formal complaint and referral, SKY identified several individual statements in the item which it contended breached broadcasting standards. The Authority notes that, despite RNZ’s concerns about SKY transcribing the quotes incorrectly at the outset, the Authority does not penalise complainants for being unable to recall exactly the words used in a broadcast. In addition, it was obvious from the complaint the statements which were of concern, and these were then clarified in SKY's referral as being:

• Reporter’s statement: "Television New Zealand says the Beijing Olympic games may have been the last people can watch on TV for free. SKY Television has secured the New Zealand broadcasting rights for both the next winter and summer Olympic events."
• Reporter's statement: "TVNZ's Rick Ellis says if the current framework that's been agreed upon between SKY TV and the International Olympic Committee is implemented, there will be a large number of New Zealand homes who won't have access to the Olympics in a free-to-air environment."
• Reporter’s statement: "TVNZ's chief executive Rick Ellis says that may result in a large number of households being locked out of viewing the 2012 event in London."
• Rick Ellis’s statement: "In the end if it ends up entirely in a SKY environment then, largely speaking, you're going to have the Olympics in a pay television environment, and a modest offering in a free-to-air environment on Prime which is hardly universal, to the extent that it currently has an audience share of about 5%."
• Rick Ellis's statement: "if the current framework that we understand has been negotiated and agreed between SKY and the IOC is implemented then we believe there will be a large number of New Zealand homes that won’t have access to the Olympics in a free-to-air environment."
• The headline: "No more blanket coverage on free-to-air TV. Reaction to that coming up later here on Morning Report."

[65] Looking at the first three statements, the Authority notes that the reporter was simply recounting statements that had been made by Television New Zealand. The view that "a large number of New Zealand homes" would no longer have access to the Olympics free-to-air was clearly put forward as TVNZ's view; the statements were framed as speculation and opinion, and were not adopted or endorsed by the broadcaster itself. As there is no suggestion that the reporter inaccurately conveyed TVNZ's view, the Authority finds that the accuracy standard was not breached in respect of these three statements.

[66] Turning to consider the two statements made by Rick Ellis, the Authority notes that guideline 5a to the accuracy standard states that the standard does not apply to statements which are "clearly distinguishable as analysis, comment or opinion". Mr Ellis's remarks were qualified; he was clearly speculating about SKY's proposed coverage of the Olympics. Further, given that Mr Ellis is the chief executive of the broadcaster which previously held the broadcasting rights for the Olympics, and clearly had a vested interest in the matter, the Authority considers that listeners may well have treated his comments with a degree of scepticism. In these circumstances, the Authority finds that Mr Ellis’s remarks were merely his comment and analysis of how New Zealand viewers would be affected by SKY's acquisition of the rights to broadcast the Olympics; they were not statements of fact to which the accuracy standard applied.

[67] However, the Authority considers that if a broadcaster was in possession of, or had access to, information that was contrary to statements in a programme, the broadcaster would have had a duty to broadcast that information in order to ensure that its audience was not misled. SKY argued that RNZ should have included the information from its press release that Prime "reaches more than 91% of New Zealand homes". The Authority finds that this was not the case, for the following two reasons.

[68] First, the Authority is of the view that Mr Ellis was not suggesting that a large number of households could not receive Prime, and therefore would miss out on free-to-air coverage of the Olympics. Rather, his statements were referring to the amount of coverage that would be shown on Prime, and he speculated that it would only be a "modest offering". This was made clear in the 7.26am item when he said:

In the end if it ends up entirely in a SKY environment then, largely speaking, you’re going to have the Olympics in a pay television environment, and a modest offering in a free-to-air environment on Prime which is hardly universal, to the extent that it currently has an audience share of about 5%.

[69] Second, even if listeners did receive the impression – particularly from the shorter items – that Mr Ellis was talking about there being a large number of homes that could not receive Prime, the Authority considers that this was in fact supported by the information SKY has subsequently provided.

[70] SKY supplied the Authority with figures to show that 92.1% of the population lives within the Prime coverage area. This population figure appears to have been translated into "91% of New Zealand homes" in SKY's press release. The Authority notes that, whether the figure relates to a population count or the number of households, it still leaves approximately 339,000 people¹ or 127,387 households² without access to the Olympics on free-to-air television. In the Authority’s view, whichever figure is correct, it leaves a "large number" of people or households unable to view free-to-air coverage of the Olympics.

[71] In these circumstances, irrespective of how listeners interpreted Mr Ellis's comments, the Authority finds that the audience would not have been misled by them. It concludes that RNZ was not required to include the information from SKY's press release that Prime "reaches more than 91% of New Zealand homes".

[72] Lastly, SKY complained that the headline "no more blanket coverage on free-to-air TV" was inaccurate because Prime television would be screening 22 hours of Olympics per day, compared to 12 hours of coverage on TVNZ for previous Olympic Games. The Authority considers that this statement did not breach the accuracy standard. Firstly, it was unclear what "blanket coverage" meant in the context of the headline; in the Authority's view, it could either have referred to the amount of coverage per day that Prime would be showing, or the percentage of households that actually receive Prime. Secondly, in the view of the Authority, the headline was clearly intended as a "teaser" and should not be considered in isolation from the longer item which followed it at 7.26am, and which clarified SKY's position that the Olympics would receive substantial coverage on its free-to-air channel Prime.

[73] In these circumstances, the Authority finds that the item was not inaccurate or misleading, and it declines to uphold the Standard 5 complaint.

Standard 6 (fairness)

[74] In its referral, SKY clarified its fairness complaint as being based on "a negative theme throughout the broadcasts". In its consideration of Standards 4 and 5 above, the Authority has found that RNZ adequately conveyed SKY’s perspective on the issue under discussion, and that the items did not contain any statements of fact which were inaccurate or misleading.

[75] The Authority disagrees that SKY was treated unfairly in this instance. Guideline 6d to the fairness standard states that broadcasters should respect the right of individuals to express their own opinions. It was clearly Television New Zealand's opinion that a large number of New Zealand homes would miss out on seeing the next Olympic Games because SKY had acquired the broadcast rights, and TVNZ was entitled to express that opinion. The Authority accepts that simply broadcasting TVNZ's view could have led to unfairness to SKY. It is satisfied that RNZ treated SKY fairly by first offering it an opportunity to respond to the comments by way of a recorded interview, and then making reasonable efforts to include in its coverage sufficient relevant information to provide context. As discussed above in paragraphs [53] to [63], the Authority considers that the Morning Report programme adequately put forward SKY's perspective.

[76] Accordingly, the Authority finds that SKY was treated fairly in the presentation of the programme. It declines to uphold the fairness complaint.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
3 March 2009

Appendix

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

1.     SKY's formal complaint to RNZ – 5 September 2008
2.     RNZ's decision on the formal complaint – 30 September 2009
3.     SKY's referral to the Authority – 22 October 2008
4.     RNZ's response to the Authority – 24 November 2008
5.     SKY's final submission – 27 November 2008
6.     RNZ's final submission – 1 December 2008
7.     RNZ's response to the Authority's request for submissions – 12 December 2008
8.     SKY's response to the Authority's request for submissions – 30 January 2009
9.     Further comment from RNZ – 2 February 2009
10.   Further comment from SKY – 4 February 2009
11.   Further comment from RNZ – 4 February 2009

¹Based on a population count of 4,298,679 from the Statistics New Zealand website as at Tuesday, 24 February 2009 at 1:11:38pm http://www.stats.govt.nz/populationclock.htm).
²Based on the total number of households estimated by Statistics New Zealand as at 31 December 2008 (http://www.stats.govt.nz/additional-information/dwel-hhold-estimates.htm)