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 that comments made by the Political Editor on Newshub Live at 6pm referring to ‘New Zealand Loyal conspiracy candidate Liz Gunn’s party of two” breached broadcasting standards. The Authority found that the balance standard did not apply. It also found the comment was not unfair noting the party could reasonably expect such robust commentary in the lead up to an election and the party leader had previously described it as a ‘compliment’ to be referred to as a conspiracy theorist.

Not Upheld: Balance, Fairness

The broadcast

[1]  During a segment on Newshub Live at 6pm on 11 October 2023, Political Editor Jenna Lynch discussed the results and implications of a Newshub-Reid Research political poll. Lynch commented on each party’s poll performance, including:

• ‘National’s been right to panic, its vote is plummeting’
• ‘Labour, you’re still losing though – 27.5%’’
• ‘The Green’s conspicuous absence from most of this campaign is doing their vote wonders – 14.9%’
• ‘ACT’s fall from grace has baked in, stalling on 8.8%’
• ‘Over in minnow-land, Te Pāti Māori still not making a break for the 5% threshold, 2.7%. TOP is on 2.2 and the new entrant here, New Zealand Loyal, conspiracy candidate Liz Gunn’s party of two on 1.4%.’

The complaint

[2]  Natalie Stamilla complained the description of the New Zealand Loyal Party as ‘a conspiracy candidate party of two’, breached the balance and fairness standards of the Code of Broadcasting Standards in New Zealand noting:

• Newshub was blatantly using its ‘powerful platform to influence the voters.’
• The Political Editor wrote off the New Zealand Loyal Party.
• The Political Editor did not make ‘disparaging remarks’ about the other parties mentioned in the broadcast.
• The report demonstrated a ‘total lack of impartial and balanced reporting.’
• The comments could have made the viewers feel they should not vote for New Zealand Loyal.

Jurisdiction – standards raised

[3]  Under section 8(1B) of the Act, the Authority is only able to consider complaints under the standard(s) raised in the original complaint to the broadcaster. However, in limited circumstances, the Authority can consider standards not raised in the original complaint where it can be reasonably implied in the wording, and where it is reasonably necessary to properly consider the complaint.¹

[4]  Therefore, the first question for the Authority is what standards were raised in the initial complaint – considering the implications from the wording used (as the complainant did not refer to any specific standards in their initial complaint to the broadcaster).

[5]  We consider the balance and fairness standards are reasonably able to be read into the initial complaint, based on the original complaint’s description of Lynch’s comments as a “total lack of impartial and balanced reporting” and the concerns expressed regarding the New Zealand Loyal Party being written off. Accordingly, we have considered both standards below.

The broadcaster’s response

[6]  Warner Bros. Discovery (WBD) did not uphold the complaint for the following reasons:

• ‘It is widely known that Liz Gunn supports various conspiracy theories. In the past, Gunn has acknowledged being called a conspiracy theorist and has described this as a compliment.’
• ‘It is important for the public to be aware of a candidate’s connections to conspiracy theories in the lead up to a general election.’
• The reference to the party as a ‘party of two’ was correct given New Zealand Loyal was only running two candidates in the 2023 General Election.
• Gunn should ‘expect robust media scrutiny in her role as the leader of a political party in an election.’

The standards

[7]  The balance standard² ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.³ The standard only applies to news, current affairs, and factual programmes, which discuss a controversial issue of public importance.⁴

[8]  The fairness standard⁵ protects the dignity and reputation of those featured in programmes.⁶ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

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

[10]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.⁷

Balance

[11]  Several criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard only applies to ‘news, current affairs and factual programmes’ which discuss a controversial issue of public importance.⁸

[12]  The complainant has not identified a controversial issue of public importance in respect of which alternative perspectives were missing.

[13]  If the nature of the NZ Loyal party can be considered a controversial issue of public importance, it was not ‘discussed’ in this broadcast. The party was mentioned once.

[14]  The broadcast discussed political poll results and the implications of these results ahead of the upcoming election. Coverage of poll results is generally of public importance to New Zealanders. However, the existence of such results and the fact that they may be interpreted differently is not controversial.⁹

[15]  The focus of the complaint was that Lynch’s comments were ‘impartial and biased reporting’ regarding the New Zealand Loyal Party. However, the balance standard does not require news, current affairs, and factual programming to be presented impartially or without bias.¹⁰

[16]  On this basis the balance standard does not apply. The complainant’s concerns about the description of the party are more properly dealt with under the fairness standard.

Fairness

[17]  The standard states broadcasters should deal fairly with any individual or organisation taking part or referred to in a broadcast.¹¹

[18]  The complainant has alleged that the coverage of New Zealand Loyal is unfair as the party has been treated with ‘more contempt than another’ and the political editor made disparaging remarks about New Zealand Loyal and not about the other parties referred to in the broadcast.

[19]  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 a layperson or 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. Political commentary and analysis by journalists is an important feature of freedom of expression and life in a democratic society.¹²

[20]  Considering the following factors, we do not consider the broadcast overstepped the boundary causing unfairness to the New Zealand Loyal Party:

• The party could reasonably expect such robust commentary in the lead up to an election.
• The party’s leader (Liz Gunn) has previously stated she considers it a ‘compliment’ to be referred to as a conspiracy theorist.¹³

[21]  We also note that the broadcast included analysis and criticism of the other parties included in the poll and their chances in the general election. The New Zealand Loyal Party was not singled out for adverse comment, as laid out in paragraph [1].

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

Susie Staley
Chair
20 February 2024

Appendix

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

1  Natalie Stamilla’s formal complaint – 12 October 2023

2  WBD’s response to the complaint – 6 November 2023

3  Stamilla’s referral to the Authority – 6 November 2023

4  WBD’s final comment – 24 November 2023

¹ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
² Standard 5, Code of Broadcasting Standards in New Zealand
³ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand, page 14
⁴ Guideline 5.1
⁵ Standard 5, Code of Broadcasting Standards in New Zealand
⁶ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 20
⁷ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁸ Guideline 5.1
⁹ Dobson and Television New Zealand Ltd, 2022-118 at [16]
¹⁰ Commentary: Balance, Code of Broadcasting Standards in New Zealand, page 15
¹¹ Standard 8, Code of Broadcasting Standards in New Zealand
¹² Robinson and Discovery NZ Ltd, Decision No. 2021-133 at [14]
¹³ Citing Sam Sherwood “Liz Gunn launches new political party and asks for $1m in donations” NZ Herald (online ed, 01 July 2023)