BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary [This summary does not form part of the decision.]

A 3 News item reported on a charge of offensive language laid against a police woman, following an incident between her and a taxi driver. The item showed excerpts of the taxi’s security footage and contained interviews with the taxi company’s managing director and office manager who were critical of the police and considered assault charges should have been laid. The Authority did not uphold the complaint that the item prejudiced the police woman’s right to a fair hearing and that it was inaccurate and unfair. There was high public interest in the item, the item was largely presented from the perspective of the interviewees and the taxi company, and it did not encourage viewers to break the law or otherwise promote criminal activity.

Not Upheld: Fairness, Accuracy, Law and Order

Introduction

[1]  An item on 3 News was introduced as follows:

Queenstown’s largest taxi company is accusing police of closing ranks to protect an off-duty police woman involved in a late night incident with one of their drivers. Early this month Constable Jenny McNee was charged with offensive language, but the driver and his bosses are questioning why footage of the incident hasn’t resulted in charges of assault being laid.

[2]  The item showed excerpts of the taxi’s security footage accompanied by commentary from the reporter. It contained interviews with the taxi company’s managing director and office manager who were critical of the police and what they perceived as the ‘injustice’ of the charge. At the end of the item, the reporter stated, ‘Police won’t comment on the matter while it is before the courts. McNee is due to appear in Queenstown District Court on May 27’. The item was broadcast on TV3 on 23 March 2014.

[3]  Nic Soper, Jenny McNee’s lawyer, complained that the broadcast and particularly the use of the security footage prejudiced Ms McNee’s right to a fair hearing. He argued that the reporter and interviewees made inaccurate statements and Ms McNee was treated unfairly as no attempt was made to inform her of the story and she was not given an opportunity to participate or provide comment.

[4]  The issue is whether the broadcast breached the fairness, accuracy and law and order standards, 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 complainant treated unfairly?

[6] The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.¹

[7]  Mr Soper argued that the failure to advise Ms McNee of the story prevented her from seeking an injunction or issuing a statement saying she intended to defend the charge but could not otherwise comment while the matter was before the court. He alleged that the use of the security footage excerpts painted Ms McNee in an ‘unfavourable’ light.

[8]  MediaWorks responded that it sought comment from the police on the understanding they represented Ms McNee’s stance on the issue. Police advised that Ms McNee had been charged with offensive language but were unwilling to comment further, it said. The broadcaster considered that it was implicit in the story that Ms McNee intended to defend the charge.

[9]  The focus of the story was the perceived inadequacy of the police response to the incident, and specifically, the decision to charge Ms McNee with offensive language but not assault, despite security footage which apparently showed Ms McNee grabbing the driver’s arm. The story was transparently told from the perspective of the taxi driver and his colleagues, and it was clear Ms McNee was still facing charges and had not yet been found guilty; reference was made to the upcoming court proceedings. Therefore, even if Ms McNee was asked to comment, her response (as articulated in her complaint) would not have added anything more to what was already canvassed in the story.

[10]  The security footage was used as a visual accompaniment to assist in giving the taxi driver’s version of events. Viewers were able to make up their own minds about what the footage showed, and particularly, whether or not it showed Ms McNee grabbing the driver’s arm. We note that the footage was grainy and there was no audio, and the alleged arm grabbing occurred behind the front seat, so was not actually captured in the footage.

[11]  While the report was unfavourable to Ms McNee, the important principle of free speech allows robust criticism of public officials or people in roles of authority in their professional capacity.² Ms McNee was a police officer and her alleged actions could be seen as calling into question her suitability in that role. As noted above, the focus of the broadcast was the response of police and specifically the decision to charge her with offensive language, not assault. There was a high level of public interest in the item, and we consider that upholding the complaint would be an unjustifiable limit on the right of the broadcaster, the taxi driver and his colleagues to freedom of expression.

[12]  Accordingly, we decline to uphold the fairness complaint.

Was the broadcast inaccurate or misleading?

[13]  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.³

[14]  The complainant argued that various aspects of the item breached Standard 5. We address each of these separately below.

Reporter’s commentary on contents of the security footage

[15]  Mr Soper argued that the reporter made statements of fact about the content of the security footage, when this was a matter of interpretation and the subject of court proceedings. Specifically, he referred to the reporter’s commentary:

• ‘Footage of the incident shows Constable Jenny McNee arguing about the cost of the fare for several minutes. Another passenger can be seen trying to make the 20-dollar payment a number of times’.
• ‘Cameras then captured footage of her grabbing his arm. Photographs taken afterwards shown bruising left by the incident’.

[16]  The broadcaster argued that the reporter’s description of what was happening in the footage was supported by the driver’s statement to police, the reporter’s discussions with the driver, the full unedited version of the footage, and knowledge of two phone calls made by Ms McNee to the taxi company apologising for her behaviour.

[17]  We are satisfied that the reporter’s commentary on the security footage was transparently based on what she had been told by the taxi driver and his colleagues, and viewers would have understood her comments as coming from a particular perspective. In any event, the footage was clearly a matter of interpretation, and viewers were able to make up their own minds about its content.

Other statements

[18]   Mr Soper argued that the following comments breached Standard 5:

• ‘43-year-old McNee’s on leave without pay and faces one charge of offensive language in relation to the incident on November 3^rd last year’. (reporter)
• ‘Colleagues were also shocked by [the driver’s] treatment and say it is not a good look for the resort’. (reporter)
• ‘The fact that it was a police officer and the fact that she actually said to him when he said he would call the police, that “I am the police”, and it was meant to intimidate him…’ (taxi office manager)

[19]  The complainant argued that Ms McNee was on leave for an unrelated medical condition, not in regard to the charge. MediaWorks said there was a pause in the reporter’s statement, indicating that it was making two separate points – that Ms McNee was on leave and she had been charged with offensive language.

[20]  In our view, it was immaterial whether Ms McNee was on leave because of the offensive language charge or for some other reason. The focus of the item was the perceived inadequacy of the decision of police to charge her with offensive language, not assault. The reason for her taking leave was not relevant to this.

[21]  Mr Soper argued that the second comment suggested the driver was ‘insulted or assaulted when that is not a matter of established fact and [Ms McNee] was still to appear before the court to defend the charge’. In regard to the third comment made by the taxi office manager, he argued that this was only hearsay, but presented as established fact.

[22]  In our view, these statements were not presented as fact, but reflected the reaction of the driver’s colleagues based on his version of events. It was obvious from the security footage that the office manager was not present at the incident and was simply repeating what she had been told by the driver. Viewers were advised that the case was yet to be heard by the court, so would have understood the comments represented one side of the story, and did not reflect indisputable fact.

[23]  Overall, we are satisfied that the item was accurate and did not mislead viewers. We therefore decline to uphold the Standard 5 complaint.

Did the broadcast encourage viewers to break the law or otherwise promote or condone criminal activity?

[24]  The intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity. The standard exists to ensure that broadcasters refrain from broadcasting material which does not respect the laws which sustain our society.⁴

[25]  The law and order complaint is specific to the use of the security footage and comments made by the reporter and interviewees about the incident. Mr Soper argued that the broadcast potentially prejudiced Ms McNee’s right to a fair hearing and undermined the judicial process by suggesting she should have been charged with assault, that it was improper for the police not to do so, and that she was guilty of assault and offensive language. He argued that the taxi company’s provision of the footage to TV3 was unlawful and TV3’s actions in broadcasting the footage constituted encouragement of the taxi company breaking the law.

[26]  MediaWorks responded that nothing in the item encouraged viewers to break the law and the complainant’s concern the item undermined the process of justice was not a matter of broadcasting standards. In any event, it provided comment from the newsroom which confirmed there was no suppression order and as the proceedings were before a judge alone, there were no contempt issues. The taxi company was advised by police that the security footage ‘was not being used at all and did not form the basis of the charge of offensive language’, it said.

[27]  The law and order standard is aimed at preventing encouragement of the audience to break the law, not the broadcaster or its sources. There was nothing in the item that encouraged viewers to break the law, or otherwise condoned or promoted criminal activity. Contempt of court issues are a matter for the courts, not this Authority; our role is to assess whether broadcasting standards have been breached, not whether a crime has been committed. It is well within the right to freedom of expression for broadcasters to report on matters before the courts, even if in a provocative way, provided this is not likely to impede or interfere with the orderly and just disposition of the case before the court (which, as we have said, is a matter for the court, not this Authority). We note that the complainant also lodged a complaint with the New Zealand Transport Agency about the taxi company’s provision of the footage to TV3, which is the appropriate body.

[28]  For these reasons, we decline to uphold the law and order complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair

10 October 2014

Appendix

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

1                 Nic Soper’s formal complaint – 3 April 2014

2                 Mr Soper’s additional comments on complaint – 14 May 2014

3                 MediaWorks’ response to the complaint – 4 June 2014

4                 Mr Soper’s referral to the Authority – 17 June 2014

5                 MediaWorks’ response to the Authority (including attachment) – 23 July 2014

6                 Mr Soper’s final comment – 4 August 2014

7                 MediaWorks’ confirmation of no final comment – 19 August 2014

¹Commerce Commission and TVWorks Ltd, Decision No. 2008-014
²See, for example, Kiro and RadioWorks Ltd, Decision No. 2008-108
³Bush and Television New Zealand Ltd, Decision No. 2010-036
⁴Hunt and Māori Television, Decision No. 2009-010