BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Close Up – satirical item featuring comedian Leigh Hart reviewing the election campaign the night before the general election was to be held – Mr Hart used a whiteboard which occasionally displayed the name of then Leader of the Opposition Phil Goff – allegedly in breach of controversial issues and fairness standards

Findings
Standard 4 (controversial issues) – item was a light-hearted review of the election campaign – it did not purport to be a serious or balanced discussion of a controversial issue – appearance and disappearance of Mr Goff’s name on the whiteboard did not require the presentation of alternative viewpoints – in any case the item discussed a number of politicians and included comment from them – not upheld

Standard 6 (fairness) – complainant did not identify who he thought had been treated unfairly – individuals taking part or referred to in the item were not treated unfairly – not upheld

This headnote does not form part of the decision. 

Introduction

[1]  An episode of Close Up, broadcast on TV One on Friday 25 November 2011 (the night before the 2011 general election), featured an item which was introduced as follows:

[Reporter’s name] takes a light-hearted look back at the election’s highs and lows with political expert opinion from none other than Leigh Hart.

[2]  While being interviewed by a TVNZ reporter, comedian Leigh Hart sat next to a whiteboard where he wrote various things, beginning with “MNP” which the reporter corrected to MMP. On occasion, the name of the then Leader of the Opposition Phil Goff was written in the top corner of the whiteboard. Mr Hart reviewed the election campaign and spoke about a number of politicians during the item, including Mr Goff, Prime Minister John Key and ACT MPs John Banks and Don Brash.

[3]  Michael Swift made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the appearance of Mr Goff’s name on the whiteboard was “almost subliminal in that it wasn’t there, then appeared, then disappeared then reappeared a number of times”, and that this “amounted to electoral advertising”, in breach of broadcasting standards related to balance and fairness, and laws relating to election advertising.

[4]  The issue is whether the broadcast of the item breached Standards 4 (controversial issues) and 6 (fairness) of 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.

Nature of the item and freedom of expression

[6]  At the outset, we recognise the right to freedom of expression which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990, and acknowledge the importance of the values underlying that right. The right to free expression includes the freedom to seek, receive, and impart information and opinions of any kind in any form. Any restriction on the right to freedom of expression must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5).

[7]  The Close Up item was a light-hearted, satirical item offering commentary on political issues in the lead-up to the general election. The Authority has previously acknowledged the importance and value of political discussion, especially in an election period.¹ In addition, a number of standards in the Code recognise that humour and satire are important forms of speech, on which society places value.²

[8]  Taking into account the nature of the item and the value of the speech engaged on this occasion, we consider that an adequate justification is required to restrict the speech.

[9]  With these principles in mind, we proceed to consider the broadcasting standards alleged to have been breached.

Did the item breach standards relating to the discussion of a controversial issue?

[10]  Standard 4 states that when controversial issues of public importance are discussed in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest. The Authority has previously stated that the balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.³

[11]  TVNZ accepted that the general election was a controversial issue of public importance, but did not agree that “satire about the election” amounted to a discussion of such an issue, or that humorous or satirical material required balance. It also noted that this was one of many news items reporting on the lead-up to the election during the election period, and that sufficient viewpoints had been sought and presented during that time. TVNZ concluded that, while there was no reason mentioned for Mr Goff’s name being on the whiteboard, it was immaterial in the context of a satirical segment, and did not constitute imbalance as envisaged by Standard 4.

[12]  The item was clearly presented as a light-hearted, comedic review of events in the lead-up to the election. It did not purport to be a serious or balanced discussion of the election campaign. In our view, the display of Mr Goff’s name on the whiteboard was most likely an issue of continuity editing, rather than a conscious decision to have the name “appearing then disappearing” as alleged by the complainant. We note that a number of things were written on the whiteboard at any one time. Further, Mr Hart spoke about a number of politicians in addition to Mr Goff, including Prime Minister John Key and ACT MPs John Banks and Don Brash, and the item included comment from some of them.

[13]  Therefore, we do not consider that the presence of Mr Goff’s name on the whiteboard warrants our intervention, or justifies placing a restriction on the broadcaster’s freedom of expression. Viewers would have understood the piece for what it was: a satirical item looking back at the election period which was intended to be humorous, rather than a serious discussion or an attempt to influence voters on the eve of the election.

[14]  Accordingly, we decline to uphold the complaint that the item breached Standard 4.

Was anyone referred to in the item treated unfairly?

[15]  Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. 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.⁴

[16]  Mr Swift did not identify who he believed had been treated unfairly. He only said that the use of Mr Goff’s name on the whiteboard was “a clear breach not only of broadcasting standards in terms of balance and fairness but also election advertising”, and alleged that the item did not refer to any other politicians.

[17]  TVNZ noted that guideline 6a to Standard 6 states that a consideration of what is fair will depend on the genre of the programme (e.g. factual, dramatic, comedic or satirical programmes). It considered the item was clearly satire and a light-hearted review of the election campaign on the eve of polling day. TVNZ concluded that the appearance of Mr Goff’s name on the whiteboard did not constitute unfairness as envisaged by Standard 6.

[18]  We presume that Mr Swift’s concern is that, because Mr Goff’s name was the only one on the whiteboard, this was unfair to other politicians. As noted in relation to Standard 4, the item was clearly framed in the introduction as a light-hearted piece, and referred to a number of politicians besides Mr Goff. In this context, we do not consider that any harm would have been caused to the reputation of any of the individuals referred to, and that upholding the fairness complaint in these circumstances would unreasonably and unjustifiably restrict the broadcaster’s right to freedom of expression.

[19]  Accordingly, we find that the item was not unfair, and we decline to uphold the Standard 6 complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
1 May 2012

Appendix

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

1                  Michael Swift’s formal complaint – 1 December 2011

2                 TVNZ’s response to the complaint – 23 December 2011

3                 Mr Swift’s referral to the Authority – 9 February 2012

4                 TVNZ’s response to the Authority – 21 February 2012

5                 Mr Swift’s final comment – 5 March 2012

¹For example, Hill and TVNZ, Decision No. 2011-169; Lloyd and TVWorks Ltd, Decision No. 2011-152

²See, for example, guideline 6a to Standard 6 (fairness) and guideline 7a to Standard 7 (discrimination and denigration) of the Free-to-Air Television Code

³Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁴Commerce Commission and TVWorks Ltd, Decision No. 2008-014