BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

The television reviewer on RNZ’s Nine to Noon programme, Tom Frewen, stated that TVNZ "now feels" that it need not carry the leaders’ opening and closing addresses for the elections, and stated "That’s how far it’s moved away from the idea of public broadcasting". The review was broadcast was on 24 March 1999.

Television New Zealand Ltd complained to Radio New Zealand Ltd, the broadcaster, that the statement was wrong, and misrepresented TVNZ’s position as had been advanced in its submissions to the Electoral Law Select Committee made on 17 March. It sought an apology.

Referring to the context of the comment, RNZ stated that the comment was neither untruthful nor inaccurate. It declined to uphold the complaint.

Dissatisfied with RNZ’s decision, TVNZ referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaint.

Decision

The members of the Authority have listened to a tape of the item complained about and have read the correspondence which is listed in the Appendix. In this instance, the Authority determines the complaint without a formal hearing.

TVNZ’s Communications Manager (Liam Jeory) complained to RNZ about a comment made by television reviewer, Tom Frewen, during RNZ’s Nine to Noon programme broadcast on Wednesday 24 March. Mr Frewen features regularly as a television reviewer on the programme.

In reference to TVNZ’s attitude to election broadcasting, Mr Frewen stated:

TVNZ now feels that it doesn’t have to even do the leaders’ opening and closing addresses for the elections. That’s how far it’s moved away from the idea of public broadcasting.

That statement, TVNZ wrote, was wrong. Further, it misrepresented TVNZ’s position in a damaging way. In support of this contention, TVNZ enclosed a copy of its written submission to the Electoral Law Select Committee, made on 17 March, which included the statement:

TVNZ is committed to supporting the democratic process and will make time available for this purpose at discounted rates.

TVNZ reported that when that it had made oral submissions to the Select Committee, it had expressly told the Committee that it wanted to broadcast the leaders’ opening and closing addresses. It had also advised the Select Committee that the cost involved should be left to TVNZ to determine as per the current legislation.

TVNZ concluded by alleging a breach of the accuracy requirement in standard R1, and requested a speedy apology under standard R12.

The nominated standards require broadcasters:

R1  To be truthful and accurate on points of fact in news and current affairs programmes.

R12  To correct factual errors speedily and with similar prominence to the offending broadcast or broadcasts.

Assessing the complaint under standard R1, RNZ noted that the review complained about had commented on a number of programmes and had then considered the matter of TVNZ’s reported profit and dividend figures, along with restructuring costs. RNZ continued:

The reviewer then addressed comments regarding the extent of current affairs programmes available and the opportunities that exist for independent journalistic endeavours on television. He then went on to observe that it appeared that TVNZ was "getting out of the business" referring to investigative and independent style reporting of issues in the public interest.

It was a continuation of this theme about public broadcasting that led to the final comment made regarding leaders’ opening and closing addresses.

RNZ pointed out that the context for the statement was a critical review of television, especially in regard to programmes in the public interest, and it denied that any untruthful statements were made. The specific comment referred to in the complaint, it contended, arose in regard to TVNZ’s wish to impose conditions on the broadcast of the leaders’ addresses. RNZ added that the comment referred to these conditions and it was the reviewer’s reasonably held opinion of them. Moreover, RNZ wrote:

It was further concluded that the comments were made in the context of a television review that focussed, in part, on the public broadcasting role of TVNZ and in such context, [t]here was nothing in the comments made to suggest that they were inaccurate in any way.

It declined to uphold the complaint.

When TVNZ referred its complaint to the Authority, it advised that it could not understand RNZ’s logic. It accepted that reviewers expressed opinions, it wrote, but maintained that any matters presented as fact were required to be correct.

TVNZ again sought the broadcast of an apology.

In its report to the Authority, RNZ said that it did not accept that the review to which TVNZ referred was news or current affairs, to which standard R1 applied. While it acknowledged that some parts of the Kim Hill programme between 9.00 am–noon dealt with current affairs, there were parts such as book reviews, book readings and recipes which were not, it wrote. It considered that the item complained about – a review of television programmes – fell into the latter category.

RNZ continued that should the Authority disagree on this point and decide that the comment was current affairs, then it should decline to uphold the complaint on the basis that it was clearly an opinion rather than a statement of fact. It argued:

It is presented as the reviewer’s opinion that TVNZ’s behaviour, in effect, means that TVNZ does not consider itself to be a public broadcaster and that its attitude [publicly known] of seeking payment for election opening and closings means that it felt that it should not have to do such broadcasts. The reviewer obviously did not mean, literally, that TVNZ felt it did not have to do the broadcasts. It is a legal requirement that they do so. The meaning being expressed was that TVNZ believes it should not have to do the broadcasts under the usual arrangements for free air-time.

As the next string in its argument, RNZ advanced the view that should the Authority consider the statement to be fact rather than opinion, then the facts which were expressed were true. In support of this contention, it quoted paragraphs 11.2 and 11.4 of TVNZ’s submission to the Electoral Law Select Committee. RNZ said that these meant:

This is, in effect, says that TVNZ feels that, as a State-Owned Enterprise governed by a profit motive, it does not have to act as a public broadcaster and offer free air-time. The fact that TVNZ also understands the issue to be "free air-time" and not the simple broadcasting of statements is also made clear in their submission.

RNZ concluded its report to the Authority:

1. The complaint is not properly considered under R1 as the broadcast was not a news or current affairs broadcast.

2. If it is properly considered a news or current affairs broadcast, the statement complained of is one of opinion and that therefore R1 was not breached.

3. Even if the statement is taken as one of fact, it is accurate in its conversational context.

In its final comment, TVNZ noted that the complaint focused on the need to distinguish between opinion and fact. On this occasion, it wrote, it did not accept RNZ’s claim that the statement was clearly one of opinion.

Furthermore, TVNZ said, it was providing 96.5 minutes of free time for the broadcasting of opening and closing campaign addresses, and it was wrong to conclude that TVNZ felt that it should not have to do the broadcasts. The charging issue, it noted, related to lost advertising – not to the free time being provided.

The Authority’s Findings

Television reviewer, Mr Tom Frewen, covered a wide range of topics in his review broadcast during RNZ’s Nine to Noon programme on 24 March. As RNZ explained, the review among other matters looked at the profit figures and dividend paid by TVNZ and:

… then addressed comments regarding the extent of current affairs programmes available and the opportunities that exist for independent journalistic endeavours on television.

In developing his theme about what he regarded as TVNZ’s diminishing role as a broadcaster of current affairs programmes, RNZ stated that Mr Frewen had said:

TVNZ now feels that it doesn’t have to even do the leaders’ opening and closing addresses for the elections. That’s how far it’s moved away from the idea of public broadcasting.

To TVNZ’s complaint that this statement was factually incorrect and misrepresented its position, RNZ argued first that standard R1 was not applicable as the comment was not made in a current affairs programme. The Authority agrees that parts of Nine to Noon are not current affairs. However, in view of the range of broadcasting issues referred to in Mr Frewen’s review, it considers that his segment in part dealt with current affairs and, accordingly, finds that the standard applied to the comments complained about.

RNZ then argued that even if the programme was current affairs, standard R1 did not apply as the comments were opinion rather than fact.

The Authority considers Mr Frewen’s status in determining this point. It is of the view that Mr Frewen’s television review on Nine to Noon can be seen as a verbal equivalent of a column by a well-known commentator on broadcasting. Indeed, the Authority believes that Mr Frewen is an authoritative commentator who, on this occasion misrepresented TVNZ’s approach to the broadcast of the opening and closing addresses.

TVNZ advised the Authority that its submissions to the Electoral Law Select Committee had supported the democratic process and, in an oral submission, it had expressed its wish to broadcast the opening and closing addresses. Whereas Mr Frewen’s remark might well have been a satisfactory summary had he said that TVNZ objected to the broadcast of the addresses "without charge", the Authority concludes that the omission of this point contravened the requirement in standard R1 for factual accuracy.

In addition, RNZ maintained that the comment was accurate in its "conversational context". The Authority does not agree. It considers that the statement was presented authoritatively as a factual summary of TVNZ’s position which, as noted above, inaccurately put the television broadcaster’s position.

In reaching its decision that the statement breached standard R1, the Authority also acknowledges that the broadcast was live, and observes that it believes that the breach arose inadvertently rather than as a deliberate misrepresentation.

The Authority does not uphold the alleged breach of standard R12. Although it decides that RNZ was wrong in not acknowledging the factual error contained in the broadcast, it accepts that RNZ had some justification in initially advancing the view that the broadcast was not factually incorrect.

For the above reasons, the Authority upholds the complaint that Radio New Zealand Ltd’s broadcast of Nine to Noon on 24 March 1999 breached standard R1 of the Radio Code of Broadcasting Practice. It declines to uphold the standard R12 complaint.

Having upheld a complaint, the Authority may make an order under ss. 13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties on the matter of penalty. Having considered the submissions, and taking into account that the breach appeared to arise inadvertently, the Authority is not persuaded in these circumstances that a penalty is appropriate.

Signed for and on behalf of the Authority

Sam Maling
Chairperson
12 August 1999

Appendix

The following correspondence was received and considered by the Authority in determining this complaint:

1. Television New Zealand Ltd’s Formal Complaint to Radio New Zealand Ltd – 26 March 1999

2. RNZ’s Response to the Formal Complaint – 29 April 1999

3. TVNZ’s Referral to the Broadcasting Standards Authority – 17 May 1999

4. RNZ’s Report to the Authority – 16 June 1999

5. TVNZ’s Final Comment – 6 July 1999

6. RNZ’s Submission on Penalty – 22 July 1999

7. TVNZ’s Submission on Penalty – 23 July 1999