BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 5 (accuracy) – this was a straightforward news report on the findings of an investigation into the legality of the agency’s actions – key finding was that the governing legislation was ambiguous and so arguably the agency did not breach it – reported that the Government’s proposed response was to amend the legislation to clarify ambiguity – item did not analyse or discuss the intentions of the governing legislation – reporter’s comments were accurate in context and would not have misled viewers – not upheld

This headnote does not form part of the decision.

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Introduction

[1]  A 3 News item reporting on an investigation into the actions of New Zealand’s intelligence agency, the Government Communications Security Bureau (GCSB), was introduced as follows:

The Inspector General of Intelligence and Security, Paul Neazor, has cleared the GCSB spy agency of illegally spying on 88 New Zealanders. His report finds the legislation is unclear and open to interpretation, but as Neazor puts it, the GCSB, arguably, didn’t breach it.

[2]  The reporter described the actions of the GCSB which led to the investigation, and included comment from the Prime Minister on the GCSB’s conduct, as well as the Government’s intended legislative response to the investigative findings. The item was broadcast on TV3 on 21 May 2013.

[3]  Aaron Smith made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the item included inaccurate and misleading statements which inferred that the intention of the law was to limit the GCSB’s power to exclude spying on New Zealanders in all circumstances. He argued that the intention of the law was to allow the GCSB to spy on New Zealand citizens and residents where it was assisting other law enforcement agencies.

[4]  The issue is whether the broadcast breached the accuracy standard (Standard 5), as set out in the Free-to-Air Television Code of Broadcasting Practice.

[5]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Was the item inaccurate or misleading?

[6]  The accuracy standard (Standard 5) 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.¹

[7]  Mr Smith’s accuracy complaint was specific to the following statements in the item: 

• “Neazor investigated cases where the GCSB spied on 88 New Zealanders, something they’re not supposed to do.” [our emphasis]
• “The Government is changing the GCSB law, allowing it to spy on New Zealanders if it is working with other agencies which are allowed to do so.” [our emphasis]

[8]  The complainant argued that the first statement was inaccurate because the words “supposed to” inferred that the purpose of the legislation was to prohibit the GCSB from spying on New Zealanders. He asserted that “the intention of the law has always been to allow spying on New Zealanders… where the GCSB is assisting other law enforcement agencies”. He argued that the second statement was misleading because it implied the GCSB was not allowed to spy on New Zealanders previously, but would be allowed to following the law change. He contended that the law change gave the GCSB “no more authority than it originally had, it’s simply that the law will be clarified”.

[9]  It is evident that Mr Smith’s complaint is based on what he considers to be the intention of the governing legislation, the GCSB Act 2003. The actions of the GCSB and the Government’s express intention to amend the legislation to make it clear the agency can spy on New Zealanders in some circumstances, has been the subject of widespread media coverage and significant public and political debate. There are many who would argue that the intention of the Act is not to allow the GCSB to spy on New Zealanders, and in this respect, Mr Smith’s arguments are based on his personal interpretation of the legislation, rather than matters of “fact” as envisaged by the accuracy standard.

[10]  In any case, the focus of the brief news report was the findings of an investigation into the actions of the GCSB, and the Government’s proposed response to those findings; it did not purport to analyse or discuss the underlying intention of the legislation. The key points conveyed in the report were:

• The Inspector General of Intelligence and Security had found, in his report, that the legislation was ambiguous, and so arguably, the GCSB had acted within its power when it spied on New Zealand citizens and residents.
• The Government’s proposed response to this finding was to amend the legislation to make it clear the GCSB could spy on New Zealanders in certain circumstances.

[11]  Where statements are alleged to be inaccurate or misleading, a consideration of their wider context is important. We do not consider that the reporter’s statements (see [7]) would have misled viewers when taken in the context of the item as a whole, the overall tenor of which was that the legislation was ambiguous and there was confusion over its intended meaning, and the Government was looking to remedy that ambiguity.

[12]  We therefore decline to uphold the complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
25 July 2013

Appendix

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

1           Aaron Smith’s formal complaint – 22 May 2013

2          TVWorks’ response to the complaint – 30 May 2013

3          Mr Smith’s referral to the Authority – 30 May 2013

4          TVWorks’ response to the Authority – 31 May 2013