Smart and TVWorks Ltd - 2011-174
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Meredith Smart
Programme3 News: Firstline
Channel/StationTV3 # 3
Complaint under section 8(1C) of the Broadcasting Act 1989
3 News: Firstline – newsreader interviewed a representative of the 'Occupy Wellington' protest movement – allegedly in breach of standards relating to accuracy, fairness, discrimination and denigration
Standard 6 (fairness) – newsreader’s approach challenging but not unfair – interviewee adequately expressed his viewpoint and defended the position of the protestors – interviewee not treated unfairly – not upheld
Standard 5 (accuracy) – newsreader’s comments did not amount to points of fact – interviewee’s perspective included so viewers would not have been misled – not upheld
Standard 7 (discrimination and denigration) – standard does not apply to individuals – comments did not carry the necessary invective to encourage discrimination or denigration against the protestors as a section of the community – not upheld
This headnote does not form part of the decision.
 During 3 News: Firstline, broadcast on TV3 at 6.45am on 17 November 2011, the newsreader interviewed a representative of the ‘Occupy Wellington’ protest movement, which was part of a global initiative against social and economic inequality. In questioning the representative about what the protestors were seeking to achieve, the newsreader made the following comments:
- “You’ve also had a lot of negative response. People say that the camps in Dunedin and Wellington and Auckland look shambolic, they’re a mess, there are tents everywhere... [tents] are not particularly hygienic when you’re all camped out... they’ve talked about people urinating outside tents...”
- “Okay we also talk about how our economy has stalled. You know New Zealand’s been through a recession, we’re all hurting. Alternatively you could get jobs and try and drive the economy.”
 Meredith Smart made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the newsreader’s interviewing approach was unfair, and that she made inaccurate and misleading statements. In addition, the complainant considered that the item encouraged discrimination and denigration against the protestors. She requested an acknowledgment that the newsreader was biased, an apology to the interviewee, and a retraction to be broadcast on TV3.
 The issue is whether the item breached Standards 5 (accuracy), 6 (fairness) and 7 (discrimination and denigration) of the Free-to-Air Television Code of Broadcasting Practice.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
The nature of the item and freedom of expression
 Our entitlement to interfere and limit any broadcast is governed by the New Zealand Bill of Rights Act 1990 and in particular section 14 which guarantees the right to freedom of expression. Any restriction on that right must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990). The higher the value of the speech that is broadcast, the greater the justification that is required to restrict it.
 The item subject to complaint was an interview on an important political issue. It sought to gain insight into the mentality behind the protest movement from a person representing the protestors. We consider that the speech was of high value and that a compelling justification is therefore required to limit it.
 With these principles in mind we proceed to determine the complaint by reference to the broadcasting standards alleged to have been breached.
Was the interviewee treated unfairly?
 Standard 6 (fairness) requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme.
 An underlying objective of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct.1 This incorporates the value of ensuring that those criticised have a chance to defend themselves and that viewers are provided with sufficient information to enable them to make up their own minds and form their own impressions.
 Ms Smart argued that the newsreader’s approach was unfair, in particular because she “smirked her way through the interview, [and] did not seem to grasp the concept of the protest”. This was evident from the newsreader’s comments about the alleged unhygienic nature of the campsites and her suggestion that the protestors should get jobs, she said.
 TVWorks accepted that the newsreader took a critical line of questioning that was direct, blunt and challenging, but considered that the interviewee was nevertheless treated fairly.
 We emphasise that, to a large extent, the interviewing style adopted is a matter of editorial discretion for the broadcaster. Considering the underlying objective of the fairness standard, the primary question is whether the approach taken resulted in an unfairly negative representation of the interviewee’s character or conduct resulting in unjustifiable harm to his reputation or dignity.
 In our view, this was a challenging interview where the newsreader adopted a cynical approach for the purpose of eliciting information. While it was obvious from her line of questioning that she did not personally agree with the protest movement, it does not necessarily follow that her approach was unfair. Importantly, the representative interviewed was able to defend his position and clearly articulate the viewpoint of the protestors. In particular, when the newsreader made comments about the hygiene of the campsite and specifically the reports of people urinating outside tents, the representative responded:
... there are 24-hour toilet facilities... Of course we are the ones living there, we don’t want to live in that situation and we’re not. If people actually come down and sit down and talk with us as opposed to projecting what they want to see, then they’ll see actually a relatively ordered and focused campsite.
 In addition, when the newsreader commented “...you could get jobs and try and drive the economy”, the representative said:
Continuing with the status quo is actually just continuing with the problem. Most of the people there have jobs and the people that don’t have jobs are there because there is structural unemployment. If you go back and read what Don Brash used to talk about, he talked about a five percent unemployment threshold as being a pretty good way of balancing people’s desire for higher wages with the anger that happens when you reach a certain level of unemployment. So I think we are at a point where there are a couple of thousand of unemployed...
 We consider that the representative of the protest movement articulated his answers well and that the potential harm to his reputation and dignity was therefore minimal. Viewers were provided with a comprehensive summary of the protestors’ position, enabling them to draw their own conclusions as to the validity of the points raised and the accusations made in the interview.
 Accordingly, we find that the interviewee was not treated unfairly in the item and we decline to uphold the Standard 6 complaint.
Was the item inaccurate or misleading?
 Standard 5 (accuracy) 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.2
 Ms Smart argued that the newsreader inaccurately stated that the campsites were unhygienic because the protesters urinated outside their tents, and implied that all of the protestors were jobless.
 TVWorks argued that the newsreader’s comments were not presented as statements of fact but were part of an interview which had an overall purpose of obtaining credible responses as part of the wider debate about the protest movement.
 We agree that, in making comments about the hygiene of the campsites and the occupational status of the protestors, the newsreader was not making assertions of fact but was questioning the interviewee on these matters. We do not consider that viewers would have been misled by these comments, considering that the interviewee’s response to these assertions was included (see paragraphs  and ).
 Accordingly, we are satisfied that the item was accurate and that viewers would not have been misled. We decline to uphold the Standard 5 complaint.
Did the item encourage discrimination or denigration against a section of the community?
 Standard 7 protects against broadcasts which encourage denigration of, or discrimination against, a section of the community.
 Ms Smart argued that the newsreader’s main questions were critical and ignorant of the core issues, and her suggestions the protestors were unhygienic and jobless were “condescending” and “unprofessional”.
 TVWorks acknowledged that the interviewing style may not have appealed to those who were sympathetic to the protest movement. However, it did not consider that the newsreader’s comments amounted to vitriol or encouraged the wrongful treatment of the protestors.
 As the standard applies only to sections of the community and does not apply to individuals, it cannot be considered in relation to the interviewee. We are satisfied that the newsreader’s comments did not carry the level of invective necessary to reach the high threshold required to encourage the denigration of, or discrimination against, the protestors as a section of the community. Rather, as already outlined, the newsreader was entitled to adopt a challenging style in order to elicit meaningful responses in relation to the protest movement.
 Accordingly, we decline to uphold the complaint that the item breached Standard 7.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
27 March 2012
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Meredith Smart’s formal complaint – 17 November 2011
2 Ms Smart’s referral to the Authority – 16 December 2011
3 TVWorks’ response to the Authority – 3 February 2012
1Commerce Commission and TVWorks Ltd, Decision No. 2008-014
2Bush and Television New Zealand Ltd, Decision No. 2010-036