Smith and MediaWorks TV Ltd - 2018-062 (26 October 2018)
- Peter Radich (Chair)
- Paula Rose
- Wendy Palmer
- Te Raumawhitu Kupenga
- Christopher Smith
BroadcasterMediaWorks TV Ltd
[This summary does not form part of the decision.]
The Authority has not upheld a complaint that a Newshub promo that stated ‘over 3 million Kiwis [get their news from Newshub]’ breached the accuracy standard. The complaint was that the promo did not indicate the reference to ‘over 3 million Kiwis’ was a ‘reach’ number (ie a statistical estimate on total audience numbers), and that the omission of information about the source and research methodology used to arrive at the 3-million figure resulted in the promo being misleading. The Authority found the use of the statistic in the promo was unlikely to mislead viewers or significantly affect their understanding of the promo as a whole, taking into account the nature of the promo as a piece of station branding or marketing, rather than a news or current affairs item.
Not Upheld: Accuracy
 A promo for Newshub presented ‘the Murdochs’, a family who did not generally watch Newshub and who agreed to ‘change’ and watch it for one week. A voiceover during the promo said: ‘They’ve never got their news from Newshub… and they didn’t know that over 3 million Kiwis do’ [emphasis added].
 Christopher Smith submitted the promo breached the accuracy standard of the Free-to-Air Television Code of Broadcasting Practice because:
- The promo did not suggest the figure was a ‘reach number’, ie an estimate or calculated audience number based on research. The average New Zealander was likely to assume that this number was based on polling.
- Omission of information about the source and research methodology used to arrive at this number resulted in the promo being misleading.
- The assertion that many New Zealanders ‘get’ their news from Newshub was misleading, as MediaWorks could not be certain that Newshub was the first or only source of news for a New Zealander.
The broadcaster’s response
 MediaWorks submitted the broadcast did not breach the accuracy standard for the following reasons:
- Newshub is a multi-platform service running across television, radio and digital. The promo complained about was part of a multi-platform campaign.
- The audience number of ‘over 3 million Kiwis’ was extracted from Nielsen Media Research’s Consumer and Media Information (CMI), which allowed media platforms to be combined to produce an overall ‘audience reach number’.
- In this case, Newshub’s television bulletins, radio bulletins and website were combined to produce a total audience number of over 3 million. As such, the statement broadcast during this promo was accurate.
The accuracy standard
 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.
 Looking first at the Authority’s jurisdiction to consider promos of this nature, we note the promo subject to complaint was not a ‘promo for a scheduled programme’ in the usual sense envisaged by the Broadcasting Act 19891 (such as a Newshub ‘coming up’ teaser, for example, which contains upcoming programme content). However, the main purpose of this promo was to persuade audiences to watch Newshub and to use Newshub’s various other platforms for their news. In this way, the promo was similar to ‘station identity’ branding (for example, promotions encouraging viewers to watch channel Three). Further, in this case both the complainant, and the advertiser/broadcaster, MediaWorks, agreed that the complaint be considered under broadcasting standards. This means the promo is within the Authority’s jurisdiction to consider.2
 The next question we considered was whether the promo was news, current affairs or factual programming, as the accuracy standard only applies to these categories of programme. As we have said above, the dominant purpose of this promo was to persuade viewers to access Newshub. While the promo falls within our jurisdiction as a piece of station identity branding, the issue raised by the complainant (namely whether this advertisement was misleading) may best fit within the jurisdiction of the Advertising Standards Authority, which considers advertisements for organisations, products and services. However, given the promo also fits under our jurisdiction, and both parties agreed that we should consider it, we have proceeded to consider whether the broadcaster in this case made reasonable efforts to ensure the promo was accurate.
 In response to the complaint, MediaWorks has explained the basis for its claim that ‘over 3 million Kiwis’ get their news from Newshub. While this figure is based on audience reach, rather than actual audience numbers or polling, we consider MediaWorks’ reliance on Nielsen research met the requirement of making ‘reasonable efforts’ for the purpose of this standard. The promo’s omission of further information about the source or methodology used to arrive at this figure was not materially misleading or likely to significantly affect the audience’s understanding of the promo, taking into account its marketing purpose.
 In addition, part of the purpose of this campaign was to highlight that Newshub is a multi-platform service and to encourage its use. This was emphasised in the concluding scene of the promo which showed Newshub is available by app, radio, web and on channel Three. A second, related promo, which returned to see the Murdochs consuming Newshub online, by radio and on television, also made this clear. We do not think either promo implied that audiences do not use any other news services besides Newshub.
 Overall, we have weighed the important right to freedom of expression against the level of harm alleged to have been caused by the promo in terms of misleading viewers. We have concluded the level of potential harm caused by the promo was minimal, given the nature of the promo as a piece of station branding or marketing. This was not a news item reporting on factual events or statistical data, but rather a promotion of Newshub’s news services. The alleged harm did not outweigh the broadcaster’s right to rely on audience reach numbers to promote the news platform, and any restriction placed on MediaWorks’ right to freedom of expression would be unjustified.
 We therefore do not uphold the complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
26 October 2018
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Christopher Smith’s formal complaint – 5 July 2018
2 MediaWorks’ response to the complaint – 27 July 2018
3 Mr Smith’s referral to the Authority – 27 July 2018
4 MediaWorks’ response to the referral – 15 August 2018
5 Mr Smith’s final comment – 24 August 2018
1 Advertising that ‘promotes a scheduled programme on behalf of a broadcaster’ is excluded from the definition of ‘advertising’ in section 2 of the Broadcasting Act, and is therefore within the Authority’s jurisdiction.
2 Advertising that promotes only a station identity on behalf of a broadcaster is also excluded from the definition of advertising in the Act and is therefore within the Authority’s jurisdiction: section 2, Broadcasting Act 1989. Further where the advertiser and broadcaster (here being MediaWorks) does not recognise the jurisdiction of the Advertising Standards Authority for the particular complaint, the Authority may consider it: section 21(3).