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 a discussion between the hosts of AM and an interview with Prime Minister Chris Hipkins breached multiple standards for including statements from the hosts questioning the usefulness and purpose of Government inquiries into various sectors. The Authority found the balance and fairness standards were not breached as the interview with Hipkins provided an alternative viewpoint, and allowed Hipkins to comment on the Government’s reasoning for the inquiry. The accuracy standard did not apply, as the comments were analysis, commentary and opinion, and the discrimination and denigration, and offensive and disturbing content standards either were not breached or did not apply.

Not Upheld: Balance, Accuracy, Fairness, Offensive and Disturbing Content, Discrimination and Denigration

The broadcast

[1]  An episode of AM, broadcast on 20 June 2023, featured two segments on the anticipated announcement of by the Government of an inquiry into the banking sector. In one segment, Ryan Bridge and co-hosts Laura Tupou and Nicky Styris discussed a text that had come into the show, which criticised the proposed inquiry. This segment included the following dialogue:

Tupou:           Not a lot of love for the banking sector this morning, the Government's going to announce an inquiry today. We're not sure of the terms of that, but we understand that it might be to do with the profits of the banking sector and the fees that they charge. Mike says [reads text message from Mike] “this is just another example of the Government wasting money on nothing but window dressing. They're trying to shift the blame for mismanagement of the country's finances to the banking sector. Most voters will see this as nothing but a political stunt to get votes”.

Bridge:           Sorry, but it rings true doesn’t it. Every time there's a problem, you'll notice a pattern with these guys. Every time there's a problem, they say, look over there, let’s whack them. Landlords, right, introduce taxes up the wazoo, whack, whack, whack. Have rents gone down? No. Rents have gone up and the Government's pocketed an extra, I think six-hundred to a billion a year from that nice little earner. Whack, whack, whack, get the headlines off us, move on. Supermarkets, whack, whack, whack, get the headlines off us, move on. Same with petrol, whack, whack, whack, get the headlines off us and move on. And here we are now with the banks. And the same thing's going to happen. And why are they doing it now? Because they need something to whack, whack, whack in an election year.

Tupou:            It’s a diversion tactic.

Bridge:           It's their MO. It's their MO. And it’s kind of frustrating, especially if you are a voter / consumer because you expect prices at the supermarket to go down. You expect prices at the petrol pump to go down. You expect prices at the bank to go down. None of it's happened. So it’s like false advertising.

Styris:             Can I make them accountable for this banking inquiry. Can you sit there and say, well, we want to see some results. If you're going to set an inquiry, make sure we actually do something about it…

[2]  Another segment in the same broadcast included an interview by Bridge with Prime Minister Chris Hipkins. In the interview, Bridge questioned Hipkins on whether a soon-to-be-announced inquiry related to the banking sector, and the usefulness of previous inquiries, including inquiries into petrol prices, supermarkets, and landlords. The interview with Hipkins was approximately 12 minutes long – five and a half minutes of which were spent discussing the proposed inquiry – and included the following dialogue:

Bridge:           Is it going to make any difference at all? You guys have done one on supermarkets, on petrol. You've whacked the landlords. I mean, has any of this made stuff cheaper for us?

Hipkins:          What market studies do, is they give you an evidence base. What you then do with that evidence base ultimately determines what happens in terms of, you know, whether consumers end up getting a better deal. The supermarket market study, for example, provided a really good evidence base for what we could do to improve the system. So we've got a grocery regulator being established. We're working on opening up the wholesaling too, so that there could be more competition within that market. There are a range of different options that we can work through as a result of having the evidence base to make good informed decisions. So market studies in themselves don't solve problems that are identified, but they help to identify the problem and give an evidence base so that you can then develop answers to some of those challenges.

…

Bridge:           Is it worth doing another one? Because it's going to cost, I imagine, millions and millions of taxpayer dollars to do this. Is it worth our time if, as you're saying, things get too complicated and actually you haven't been able to name one example of where things have got cheaper because of one of your studies.

Hipkins:          It's early days. If you've got a lack of competition in a market, you don't always turn that around overnight. So in the case of supermarkets, for example, which is the most recent study where a really clear evidence base of a lack of competition was established, that's not going to change around overnight. We're not suddenly going to have big new players everywhere over the country overnight, adding more competition. But we can do things that head in that direction, opening up wholesale supply chains, for example, to allow new competitors to enter into the market. That work is underway. Having a grocery, you know, competition watchdog put in place, which is what we're doing. So there are things that you can do as a result of these studies that do make a difference.

The complaint

[3]  Anjali Solanki complained the broadcast breached the offensive and disturbing content, discrimination and denigration, balance, accuracy, and fairness standards of the Code of Broadcasting Standards in New Zealand on the basis Bridge ‘attacked’ the Labour Party (in his interview with Hipkins) in a ‘far more unbalanced and discriminatory way than other political parties’. The complainant added:

‘[Bridge] falsely claimed that no benefit was achieved by govt report/investigations when the steady petrol price rise was arrested and even decreased briefly when the investigation was announced by the labour govt. Then the govt even reduced prices by 25c/L. The exploitation of the vegetable farmers by the large grocery chains was arrested and new rules imposed.’

Jurisdiction – scope of complaint

[4]  The complainant’s initial formal complaint form submitted to the broadcaster identified the broadcast of AM on 20 June 2023 as the broadcast being complained about. In the body of the complaint, they also added:

• ‘Previously [Bridge] has inserted his "let's hate Jacinda" agenda at every opportunity even tried blaming her for the current Labour party losses.’
• ‘[Bridge] used vulgar, sexist and offensive terms like [tits up] when interviewing dignified Sir Bob Harvey regarding Stuart Nash (yesterday?).’

[5]  The broadcaster did not address these wider elements of the complaint, restricting its response to the broadcast selected by the complainant. On referral to the Authority, the complainant specifically noted the broadcaster had not addressed their concerns about the use of the phrase ‘tits up’ in a previous broadcast.

[6]  Under the Broadcasting Act 1989 (the Act), a formal complaint about a breach of broadcasting standards must relate to a specific broadcast, and include sufficient details to reasonably enable identification of the broadcast.¹  The question for us is whether the comments above were sufficient to constitute an additional formal complaint in respect of any other programme. If not, the additional complaint is outside our jurisdiction and we are unable to consider it now.² We consider the complainant’s concerns regarding Bridge’s alleged use of the phrase ‘tits up’ in a previous broadcast were not, in the context, sufficient to constitute a formal complaint because:

• The complaint expressly focused on another broadcast.
• The ‘tits up’ comment was made in the context of describing the host’s previous behaviour (which is outside the scope of the Authority’s jurisdiction).  In this context, it was reasonable for the broadcaster to interpret it as commentary regarding a pattern of behaviour that the complainant considered should be taken into account – rather than the subject of an additional formal complaint.
• The complainant did not indicate which programme the comment was in and only provided the vague timing of ‘(yesterday?)’ – which was in fact incorrect, as we later found out the broadcast was from four days prior.
• Recognising broadcasters’ limited resources, and the time which can be involved in locating specific content, the complainant’s obligation to provide sufficient details ‘to reasonably enable identification of the broadcast’ will generally involve identifying the relevant time period within a window of no greater than three hours.³

[7]  The complainant’s statement ‘Previously [Bridge] has inserted his "let's hate Jacinda" agenda at every opportunity even tried blaming her for the current Labour party losses’ is also too unspecific to constitute a formal complaint. Having regard to the above context, we find that the broadcaster’s approach of responding to the initial complaint only in relation to the 20 June 2023 AM broadcast was appropriate, and similarly, our decision is limited to that specific broadcast.

The broadcaster’s response

[8]  Warner Bros. Discovery (WBD) did not uphold the complaint, stating:

• ‘It is an important part of the media's role to question public and government officials and hold their statements and policies to account. [WBD] maintains this Broadcast is typical of the commentary that regularly features on the programme which regular viewers expect.’
• ‘[WBD] maintains this Broadcast is typical of the informal commentary and voicing of opinions among the presenters that regularly features on the programme and we have not identified any breach of the nominated standards.’

The standards

[9]  The balance standard⁴ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.⁵ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.⁶

[10]  The purpose of the accuracy standard⁷ is to protect the public from being significantly misinformed.⁸ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

[11]  The fairness standard⁹ protects the dignity and reputation of those featured in programmes.¹⁰ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

[12]  We consider the accuracy, balance, and fairness standards are the most relevant to the complainant’s concerns. We deal briefly with the offensive and disturbing content, and the discrimination and denigration standards below at [29].

Our analysis

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

[14]  We recognise the value of robust political discourse in the media and the role of media in holding to account those in positions of power. This enables the public to be informed and engaged, which is critical to a free and democratic society, particularly in the lead-up to an election. When we consider a complaint that a broadcast has breached broadcasting standards, we weigh the value of the programme, and the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused by the broadcast.¹¹

Balance

[15]  The complainant considered Bridge ‘attacked’ the New Zealand Labour Party and Prime Minister Hipkins in an unbalanced way.

[16]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to ‘news, current affairs and factual programmes’ which discuss a controversial issue of public importance.¹²

[17]  The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.¹³ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.¹⁴

[18]  This broadcast included an extended discussion between the hosts, as well as an interview with the Prime Minister, on the anticipated announcement of an inquiry into the banking sector, and the usefulness of previous inquiries into other sectors. We consider these topics amount to controversial issues of public importance, triggering the requirements of the standard to present significant points of view.

[19]  While we consider the balance standard engaged, we do not uphold the complaint under this standard for the following reasons:

• While the discussion between the hosts presented only one perspective on the usefulness of inquiries, the broadcast also contained a 12‑minute interview with Prime Minister Hipkins, who was provided the opportunity to give his, and his Government’s, perspective on the usefulness of such inquiries, and to defend the results of previous inquires. The Prime Minister articulated these views clearly.
• The standard allows for balance to be achieved over time, within the period of current interest. The topic of the banking inquiry was covered by Newshub and other broadcasters, within the period of interest, providing other perspectives to those contained in the broadcast.¹⁵
• The standard does not require news, current affairs and factual programming to be presented impartially or without bias. Within the limits established by this standard, broadcasters are free to promote or challenge particular ideas, philosophies or people (eg politicians).¹⁶

Accuracy

[20]  The complainant alleged the host ‘falsely claimed that no benefit was achieved by [the Government’s] report/investigations’. The first issue for us is whether the host’s statements constituted analysis, comment or opinion rather than a statement of fact.

[21]  The requirement for factual accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.¹⁷ News and current affairs programmes may still contain – and can reasonably be expected to contain – opinion and analysis (eg from political editors and other experts). However, broadcasters should still make reasonable efforts to ensure analysis, comment or opinion is not materially misleading with respect to facts referred to, or upon which the analysis, comment or opinion is based.

[22]  When assessing whether statements are analysis, comment or opinion, the following factors may be relevant:¹⁸

• the language used
• the type of programme
• the role or reputation of the person speaking
• the subject matter
• whether the statement is attributed to someone
• whether evidence or proof is provided.

[23]  We consider Bridge’s comments in his discussion with the other AM hosts, and in his interview with Prime Minister Hipkins would likely be perceived as analysis, comment or opinion to which accuracy standard would not apply. The efficacy of previous inquiries on prices is subjective (as noted by Hipkins, the purpose of an inquiry is to obtain an evidence base for future policy. The inquiry does not in and of itself impact prices). Similarly, Bridge’s interview with Hipkins amounted to Bridge asking questions rather than reporting on a particular subject or item. His statements were questions posed to the Prime Minister, rather than definitive or conclusive statements about subject matters raised. In any event, Prime Minister Hipkins was given the opportunity to respond to Bridge’s questions on the usefulness of his government’s inquiries, minimising any risk of viewers being misled.

Fairness

[24]  The standard states broadcasters should deal fairly with any individual or organisation taking part or referred to in a broadcast.¹⁹

[25]  The complainant has alleged that the host’s interview was an unbalanced and discriminatory attack on Prime Minister Hipkins and the Labour Party, and that the presenter was biased against Labour in his wider reporting, including in the conversation between the hosts.

[26]  At the outset, we note it is well established that the threshold for finding a breach of the fairness standard in relation to politicians and public figures is higher than for someone unfamiliar with the media. Politicians and public figures hold a position in society where robust questioning and scrutiny of their policy, roles and behaviour is encouraged and expected. They are frequently capable interviewees, experienced in handling aggressive or inflammatory questioning or other coverage that may be considered unfair for an ordinary person.²⁰ In addition, political commentary and analysis by journalists is an important feature of freedom of expression and life in a democratic society.²¹

[27]  Taking into account the following factors, we do not consider the broadcast of either segment overstepped the boundary causing unfairness to the Prime Minister or the Labour Party (whose policies and actions the Prime Minister was presenting):²²

Interview

• The Prime Minister is interviewed on the programme frequently (usually every Tuesday) and is well accustomed to Bridge and his interview manner and style. The Prime Minister was a voluntary participant in the interview and given his position of power, as the Prime Minister and leader of the Labour Party, would expect to be challenged on Government decisions.
• The Prime Minister was given a fair and reasonable chance to respond to all questions. The Prime Minister was clear he would not be drawn into pre-emptively announcing the subject of the next inquiry and explained the reasoning behind commissioning inquiries into various sectors.
• The interview did not go beyond what viewers can reasonably expect from a robust challenge of the Prime Minister and Government of the day, on issues of public importance.
• The comments were not directed at Hipkins personally, but at the Government’s motivation in announcing another inquiry, and the usefulness of previous inquiries. It would not have left audiences with an unduly negative impression of the Prime Minister or the Labour Party.
• The decisions of the Authority issued over time provide guidance to broadcasters and complainants about what is acceptable under the broadcasting standards. We have consistently not upheld complaints about fairness to politicians when being interviewed and this is reflected in BSA’s published guidance on complaints that are unlikely to succeed.²³

Discussion between the hosts

• While Bridge’s comments about the Government (and by implication the Labour Party) were critical during his discussion with the other hosts, we do not consider Bridge’s comments went beyond what could be expected from robust political analysis or commentary, particularly during an election year. Bridge’s comments represented his opinion, and one he was entitled to express as a political commentator, as long as standards were maintained.²⁴ As we have found above, the inclusion of an interview with the Prime Minister on the topic of the inquiry, provided the Prime Minister, and by extension the Labour Party, the opportunity to comment on this issue and provide clarification.

[28]  Accordingly we do not uphold the complaint under the fairness standard.

Remaining standards

[29]  The remaining standards either did not apply or have not been breached:

• Discrimination and Denigration:²⁵ This standard protects against broadcasts which encourage the discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief. To the extent the complainant’s concerns relate to discrimination against or denigration of Prime Minister Hipkins and the Labour Party, the standard does not apply.²⁶ The standard does not apply to individuals or organisations, which are dealt with under the fairness standard.
• Offensive and Disturbing Content:²⁷ The purpose of this standard is to protect audiences from viewing or listening to broadcasts that are likely to cause widespread disproportionate offence or distress or undermine widely shared community standards.²⁸ The standard is generally concerned with broadcasts that contain sexual material, nudity, violence or coarse language.²⁹ As noted above, the complainant’s concerns about Bridge’s alleged language related to a separate broadcast which is out of the scope of this decision. We do not consider the broadcast was likely to otherwise cause widespread disproportionate offence or distress, or undermine widely shared community standards.

[30]  Accordingly, we do not uphold this complaint under the discrimination and denigration, and offensive and disturbing content standards.

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

Susie Staley
Chair
18 October 2023    

Appendix

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

1  Anjali Solanki’s formal complaint to WBD – 20 June 2023

2  WBD’s response to the complaint – 17 July 2023

3  Solanki’s referral to the Authority – 17 July 2023

4  WBD’s confirmation of broadcasts – 31 July 2023

¹ Broadcasting Act 1989, s 6(1)(a); see also Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Complaints” <bsa.govt.nz>
² Broadcasting Act 1989, s 8(1B)
³ Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Complaints” <bsa.govt.nz>
⁴ Standard 5, Code of Broadcasting Standards in New Zealand
⁵ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 14
⁶ Guideline 5.1
⁷ Standard 6, Code of Broadcasting Standards in New Zealand
⁸ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
⁹ Standard 8, Code of Broadcasting Standards in New Zealand
¹⁰ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
¹¹ Introduction, Code of Broadcasting Standards in New Zealand at page 4
¹² Guideline 5.1
¹³ Guideline 5.1
¹⁴ Guideline 5.1
¹⁵ Amelia Wade “Banks’ response to Government’s inquiry called “fantasy-land comment” by competition advocate’ Newshub (online ed, 20 June 2023); “Leading economist Cameron Bagrie slams Government’s banking probe as ‘pure politics’” Newshub (online ed, 27 June 2023); Jamie Ensor “Government confirms Commerce Commission market study of banking” Newshub (online ed, 20 June 2023); Amelia Wade “Market study into banks on cards as Govt faces pressure to investigate eyewatering profits” Newshub (online ed, 9 March 2023); Raphael Franks and Sam Hurley “Bank profits: Commerce Commission inquiry set to be launched tomorrow after political calls for action” NZ Herald (online ed, 19 June 2023); Rob Stock “Commerce Commission to probe retail banking competition” Stuff (20 June 2023); Stewart Sowman-Lund “Confirmed: New inquiry to look at bank sector competition” The Spinoff (20 June 2023)
¹⁶ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 14
¹⁷ Guideline 6.1
¹⁸ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
¹⁹ Standard 8, Code of Broadcasting Standards in New Zealand
²⁰ See Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Complaints that are Unlikely to Succeed” <bsa.govt.nz> at ‘Fairness applied to politicians/public figures’
²¹ Robinson and Discovery NZ Ltd, Decision No. 2021-133 at [14]
²² Guideline 8.1
²³ Broadcasting Standards Authority “Complaints that are unlikely to succeed” <www.bsa.govt.nz> (see “Fairness applied to politicians/public figures”); See also: Frewen and Television New Zealand Ltd, Decision No. 2020-146B; Bowkett and Discovery NZ Ltd, Decision No. 2020-103; Cowie and Radio New Zealand Ltd, Decision No. 2020-133; Downes, Penning, Maltby, Massie & Tang and NZME Radio Ltd, Decision No. 2020-123; and Marra and Mediaworks Radio, Decision No. 2019-023
²⁴ Edwards and MediaWorks TV Ltd, Decision No. 2017-085
²⁵ Standard 4, Code of Broadcasting Standards in New Zealand
²⁶ Pascoe and Television New Zealand Ltd, Decision No. 2020-090 at [15]
²⁷ Standard 1, Code of Broadcasting Standards in New Zealand
²⁸ Commentary, Standard 1, Code of Broadcasting Standards in New Zealand at page 3
²⁹ Guideline 1.1