BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Sunday – item on Maui’s dolphins and introduction of set net ban – unfair and unbalanced

Findings
Standard 4 – views of those opposed to the set net ban balanced against those in support – issues raised about treatment of complainants best assessed under Standard 6

Standard 6 (preparation) – no evidence of assurances about scope of programme – not unfair – not upheldStandard 6 (presentation) – complainants’ position presented out of context – failure to mention alternative management plan unfair to complainants – upheld

Orders
Broadcast of statement
$2000 contribution towards complainants’ legal costs

This headnote does not form part of the decision

Summary

[1] An item about Maui’s dolphins explained that the species was in danger of extinction. It described set net fishing as the “single largest threat to [the] animal’s continued existence” and discussed the imminent Government ban on set net fishing. The programme was the lead item on Sunday broadcast on TV One at 7.30pm on 14 September 2003.

[2] The Northern Inshore Fisheries Company Ltd and Clifford Bruce Young complained to Television New Zealand Ltd, the broadcaster. The complainants considered that the item was unbalanced and unfair in its treatment of Mr Young, who had appeared in the item. In their view, the programme represented the commercial fishing industry as “irresponsible, if not callous” and ignored background material which showed that this was not the case. The complainants also maintained that Mr Young had only agreed to co-operate and appear in the programme on the basis that it would be fair and balanced.

[3] TVNZ considered that the item was balanced and fair. It considered that the views of those who supported the ban were balanced by comment from those in opposition. It also considered that Mr Young had been treated fairly, as he had been given an opportunity to comment and his comments were fairly represented in the item.

[4] Dissatisfied with TVNZ’s decision, the complainants referred their complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaints that the broadcast breached Standard 6 (fairness).

Decision

[5] The members of the Authority have viewed a tape of the item complained about. They have also read a transcript of the item and the correspondence which is listed in the Appendix. The Authority determines the complaints without a formal hearing.

Programme

[6] The current affairs programme Sunday was broadcast on TV One at 7.30pm on 14 September 2003. The lead item that night concerned Maui’s dolphins. It reported that the dolphin was the world’s rarest and on the brink of extinction. It outlined the dangers faced by, and the steps being taken to save, the dolphins. It described set netting as the “single largest threat to [the] animal’s continued existence” and discussed the imminent Government ban on set net fishing.

[7] The item included the views of conservationists as well as those of recreational and commercial fishers. The views of commercial fishers on the set net ban included comments taken from an interview with Mr Young, the Chief Executive of Northern Inshore.

Complaints

[8] The complainants alleged that the item was unbalanced and unfair. They maintained that the item did not acknowledge or describe Northern Inshore’s efforts over a three year period to develop alternative proposals to protect the dolphin, which would not require a widespread set net ban. In the complainants’ view, the inclusion of this material was required to balance statements made on behalf of the Department of Conservation. They considered that this omission led to a picture being painted of an:

industry unconcerned, inactive and unwilling to take any steps to protect these dolphins.

[9] The complainants also considered that the editorial selection of comments from Mr Young’s interview had what they considered to be a deliberately calculated impact which reflected poorly on Mr Young and the fishing industry. They considered that the item included only a few “prejudicial sound bites” despite researchers having all the background material and Mr Young having explained matters relating to the efforts of Northern Inshore during his interview. In particular, they said a comment made in response to the reporter’s question about whether fishermen had feelings about the dolphins:

was made with what appeared to be a smirk, caused in part by poor camera angle and artificial lighting, and was included to imply that the industry was apathetic and simply wanted to continue fishing without making any attempt to mitigate any risk to the dolphins.

[10] In addition, the complainants noted that Mr Young had only agreed to appear on the programme on the basis of express assurances given to him by the programme makers that “this complex and sensitive issue” would be dealt with in a fair and balanced manner.

[11] The complainants requested that the broadcaster acknowledge that the programme was unfair and unbalanced, and prepare a supplementary item for broadcast which would acknowledge the failing and seek to redress it fairly.

[12] The complainants also asked the broadcaster for copies of field interviews with Mr Young, Mr Donohue (a representative of the Department of Conservation who appeared in the item) and Mr Adams (a commercial fisherman who appeared in the item).

Standards

[13] TVNZ assessed the complaints against the standards nominated by the complainants. Those standards and their relevant guidelines read:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Guidelines

4a  Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.

4b  No set formula can be advanced for the allocation of time to interested parties on controversial public issues. Broadcasters should aim to present all significant sides in as fair a way as possible, it being acknowledged that this can be done only by judging each case on its merits.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Guidelines

6a  Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.

6b  Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.

Broadcaster’s Response to the Complainants

[14] TVNZ commented:

… the initial reaction of the Complaints Committee was that your client’s assumptions about the scope of the item were at odds with the boundaries set during the editorial decision-making process which led to the item being broadcast. While the reporter was aware of the efforts made by your client to identify alternatives to the set net ban, this item was assembled on the basis that matters had reached the stage where a set net ban would be introduced by government regulation. In that context there was little point in going over what had happened in the past. A decision, it seemed, had been made by the minister and it only remained to gazette the regulations. With this in mind the item set out to reflect what conservationists were saying about the dolphin, and how those accused of being responsible for dolphin deaths were reacting to the ban.

[15] TVNZ considered that the requirement for balance in Standard 4 was achieved, as the views of the Department of Conservation’s representative (who favoured the set net ban) were balanced with the views of Mr Young and Barry Mills (a recreational fisher who opposed the ban).

[16] TVNZ also determined that Standard 6 was not breached. It strongly denied that Mr Young had been given an unfavourable camera angle or lighting. TVNZ concluded:

Mr Young was given every opportunity to comment and did so. His own words were used; he was seen to say them. There was no question of him being misquoted.

Referral to the Authority

[17] When the complainants referred their complaints to the Authority, they made detailed submissions and provided the Authority with a large volume of material in support, including affidavits from Mr Young and from Brent Marshall, a director of Northern Inshore who was interviewed off-camera by a researcher for the programme.

[18] The complainants explained that during the interviews with Mr Marshall and Mr Young each had explained the process leading up to the set net ban. Mr Young and Mr Marshall both swore affidavits which explained that they only agreed to participate in the process on the express understanding that their side of the story would be told.

[19] In the complainants’ view, the industry’s side of the story was not limited to the state of the dolphin population and the extent to which commercial fishing was responsible for its decline. They said it included the efforts made to manage the problem without a widespread set net ban.

[20] They said they wanted the public to know that:

… notwithstanding that commercial fishers maintained that there was no significant level of interaction, and notwithstanding that there was debate about the level of dolphin population on the West Coast of the North Island and the reasons for its decline over the decades, the industry had tried to adopt a pro-active and responsible approach to the concerns of various environmental organisations and Government departments. They wanted the public to see that notwithstanding their misgivings about the necessity for such a regime, they had offered to the Minister a comprehensive management proposal that would have been at considerable cost to the industry, but which would have avoided the need for a complete closure. They wanted the viewing public to see that they had been universally applauded for their efforts and that ultimately the Ministry of Fisheries (being the lead agency responsible for providing the Minister with advice on this issue) accepted that the proposal went far enough and was likely to result in zero mortalities in the future. They wanted the public to see that, in their view, the Minister had rejected their proposal, not based on sound scientific rationale or analysis, but rather because of the politics relating to the protection of marine mammals.

[21] The complainants maintained that TVNZ knew this side of the story, and yet did not tell it – despite the assurances given to Mr Young and Mr Marshall. They submitted:

… the editors decided to unilaterally change the boundaries of the programme so that it became unnecessary to deal with the industry’s side of the story in the context of the programme they ultimately put together.

[22] The complainants submitted that the industry perspective was given “less than 60 seconds” of air time taken from a much longer interview with Mr Young. In their view this material concentrated solely on Mr Young’s reaction to allegations that set nets were responsible for dolphin deaths and the extent to which the dolphins were on the brink of extinction, and used none of the background material which the complainants considered should have been included. The complainants submitted that no attempt was made to balance any of the statements made in the item on behalf of the Department of Conservation, which they noted was “not even the Government Department responsible for advising the Minister on the issue”.

[23] The complainants also submitted that TVNZ’s response to the formal complaints amounted to an admission that it had not put the industry’s side of the story in the manner promised.

[24] In addition, the complainants submitted:

• TVNZ’s allegation that the change in the boundaries of the item came about because matters had reached the stage where a set net ban would be introduced was untrue. In fact, they contended that nothing had changed between the time of interview and broadcast, and the decision to introduce the ban was known before the interviews took place.
• It was “disingenuous” to suggest that any unfavourable impression was solely attributable to Mr Young’s choice of words, when it was TVNZ that chose the “sensationalist” material which was broadcast.
• The Authority should compare the atmosphere and lighting used for Mr Young with that used for Mr Donohue of the Department of Conservation.

[25] The complainants also noted that they had sought copies of field tapes of the interviews with Mr Marshall and Mr Young, but were advised that they had been erased.

[26] The complainants sought the following remedies:

• An order directing TVNZ to broadcast a statement summarising the Authority’s findings.
• Payment of $5,000 to Northern Inshore to meet its costs in relation to making the complaints.

The Broadcaster’s Response to the Authority

[27] TVNZ said its view remained that the complainants wrongly assumed the item was intended to be a wide ranging study of set netting and the negotiations which took place prior to the decision to implement the set net ban. It then maintained that much of the material presented in the referral was therefore irrelevant and/or inadmissible because it did not form part of the complainants’ original complaint.

[28] Commenting on specific aspects of the complainants’ referral:

• TVNZ denied that any conditions were attached to the agreement of Mr Young or Mr Marshall to participate in the programme. It maintained that no questions on Northern Inshore’s management proposal were asked during the interview with Mr Young. The reporter’s question line was provided as proof of this.
• TVNZ acknowledged that it had examined the management plan and background to the set net ban as part of its research, but maintained that it was never intended that the management plan would be a major component of the story.
• TVNZ disagreed that there was no coverage of Northern Inshore’s initiatives. It pointed to the part of the programme where Mr Adams, who was described as a “member” of the company, took the crew on a fishing expedition during which TVNZ said he highlighted the company’s initiatives and also commented on the impact of the set net ban on his own livelihood. TVNZ said that the picture driven sequence at sea provided greater impact than covering those aspects in an interview setting.
• TVNZ commented that although fishers did not consider there was “significant interaction” between nets and dolphins, there was documented evidence to the contrary, and Mr Adams had told Sunday that he was aware of other fishermen who had caught Maui dolphins.
• TVNZ commented that the Minister of Fisheries and scientists who study the dolphins had rejected the industry’s management plan, noting that neither had any pecuniary interest, and were only concerned with the survival of the dolphin.
• TVNZ said it did not know why the Minister rejected the advice of the Ministry of Fisheries, but noted that this was not unusual as the Ministry’s job is “to maintain sustainable commercial harvest, not to ensure the survival of an endangered species”, and that “it can be speculated that the final decision may have been influenced by reference to a number of sources [not just the Ministry’s recommendation]”.
• TVNZ assured the Authority that the taped interview with Mr Young was shorter than claimed by the complainants, and that the extracts used totalled 1 minute 50 seconds, not 60 seconds.
• TVNZ repeated its assertion that Mr Young’s performance was not impaired by poor lighting or camera angle.
• TVNZ maintained that it would have been irresponsible, having aired Mr Young’s view that commercial fishing does not threaten the dolphins, not to provide a contrary view.
• TVNZ also commented that the Department of Conservation was a legitimate voice in the story.
• TVNZ specifically denied that its decision amounted to an admission that it did not put the industry’s side in the manner promised.
• Finally, TVNZ commented that there was nothing sinister in erasing its field tapes, saying it was usual practice.

Complainants’ Final Comment

[29] The complainants considered the Authority should have regard to the material they provided as appendices to their referral because they were relevant submissions which elaborated on points made in their original complaint. They considered that the material was relevant because it was part of the material and background explanation provided by Mr Marshall.

[30] The complainants reiterated that Mr Young and Mr Marshall had only agreed to participate on the basis of assurances that the “full story” would be told. They said TVNZ had provided no evidence to the contrary, and its explanation of why no assurances were given “did not ring true”.

[31] The complainants also disagreed that the question line of the interview with Mr Young clearly signalled the direction it would take. They said that there were numerous questions which indicated that Northern Inshore’s story would be presented. In addition, they noted that the questions presented only half of what was said in the interview. They reiterated that Mr Young had spoken at length about Northern Inshore’s efforts to devise an effective management plan. The complainants added that even if this material had not been covered in the interview, it had been provided to researchers and they still expected the material would be covered in the programme.

[32] The complainants reiterated that the editing of the Young interview was unfair and unbalanced, as only “a few sensationalist sound bites” were broadcast. They also reiterated their claim that “deliberate camerawork and lighting” resulted in “an atmosphere which carried the implication of a clandestine and insincere industry”.

[33] The complainants also noted that the transcript of the broadcast included no statement by Mr Adams about other fishermen having caught dolphins in their nets.

Authority’s Determination

Standard 4 (Balance)

[34] Standard 4 requires that broadcasters make reasonable efforts, or give reasonable opportunities, to present significant points of view on controversial issues. In this case the controversial issue which the programme examined was reaction to the decision to impose a set net ban along a substantial section of coastline. In the Authority’s view, the views of those in favour of the ban were balanced by the views of those against. Those against were represented by recreational fishers, a commercial fisher (Mr Adams), and by Mr Young for Northern Inshore. The Authority considers that sufficient time was devoted to presenting the position of those opposed to the ban.

[35] The complainants allege that the programme was unbalanced because their position had not been presented in a balanced fashion. The Authority considers that allegations about lack of balance with reference to Northern Inshore and Mr Young specifically are best assessed under Standard 6 (fairness) because the complainants alleged that the item was unbalanced for the same reasons they considered that it was unfair to them.

Standard 6 (Fairness)

[36] The complainants allege they were treated unfairly in the preparation of the programme. They also say that the broadcast itself was unfair to them. The Authority deals with these allegations separately.

[37] The complainants’ concern about the way the programme was prepared focuses on alleged assurances made to representatives of Northern Inshore about the story which would be broadcast. The parties to the complaint do not agree about the facts surrounding this allegation. The complainants allege that express undertakings were given about the scope of the broadcast. They say that they were assured that their side of the story would be told. The broadcaster denies that any such assurances were given.

[38] The Authority notes that it was not provided with definitive evidence of any assurances by the complainants. It also notes that it is not standard journalistic practice to give specific assurances. Having considered each side’s position, it is not prepared to find against the broadcaster on this point. Accordingly, it finds that Standard 6 was not breached in relation to the programme’s preparation.

[39] Turning to the broadcast itself, the complainants maintain that their position was reduced to “prejudicial” and “sensational” sound bites. They also allege that they were dealt with unfairly because Mr Young’s interview was filmed using unfavourable angles and lighting.

[40] On this occasion, the Authority considers that the selection of material which was broadcast was unfair to both complainants. It would not have been apparent to the viewers that Mr Young’s reaction to the set net ban was conditioned by the industry’s failure to avoid this outcome. The Authority considers that the complainants’ position could not fairly be presented without putting the objection into this context.

[41] In the Authority’s view, the programme should have explained, in some way, the industry’s alternative plan which was:

• developed at great cost to the industry
• aimed at avoiding the need for a widespread set net ban
• accepted by the Ministry of Fisheries as likely to achieve the dolphin management goal (but ultimately rejected by the Minister).

In the absence of any of this material, the Authority considers that Mr Young as a representative of the industry was presented negatively. It was unfair not to refer to the positive work he and the industry had done to develop an alternative plan that the Ministry of Fisheries (but not the Minister) had accepted. The Authority therefore finds that Standard 6 was breached.

[42] However, the Authority rejects entirely the complainants’ allegations about the unfavourable camerawork and lighting used for Mr Young’s interview.

General

[43] The broadcaster submitted that much of the material provided by the complainants, through their solicitors, was irrelevant or inadmissible. Having assessed the material, the Authority notes that much of it was not helpful to its deliberations.

[44] For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

For the above reasons, the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Sunday on 14 September 2003 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

[45] Having upheld these complaints, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. Accordingly, it invited submissions from the parties.

[46] TVNZ submitted that publication of the decision would be sufficient penalty and no order ought to be imposed.

[47] The complainants sought the broadcast of a statement and an order directing TVNZ to pay all of, or make a substantial contribution to, their legal costs.

[48] The Authority is of the opinion that the breach of broadcasting standards on this occasion was sufficiently serious to warrant the broadcast of an approved statement and a contribution to the complainants’ costs. The Authority has determined that it is appropriate to order the broadcaster to pay the complainants $2000 in costs. In deciding on this figure, it has taken into account the point made above in paragraph [43]. Accordingly it imposes the following orders:

Orders

Pursuant to section 13(1)(a) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to broadcast, within one month of the date of this decision, a statement explaining why the complaint was upheld. The statement shall be approved by the Authority and shall be broadcast at a time and date to be approved by the Authority.

Pursuant to section 16(1) of the Broadcasting Act 1989, the Authority orders Television New Zealand Ltd to pay, within one month of the date of this decision, the sum of $2000 by way of costs to the complainant.

The order for the payment of costs shall be enforceable in the Wellington District Court.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above orders have been complied with.

Signed for and on behalf of the Authority

Joanne Morris
Chair
22 April 2004

Appendix

The following correspondence was received and considered by the Authority when it determined these complaints:

1.  Formal Complaint to Television New Zealand Ltd made on behalf of Northern Inshore Fishery 
    Management Company Limited and Clifford Bruce Young – 19 September 2003
2. TVNZ’s Response to the Complainants – 20 October 2003
3. The Complainants’ Referral to the Broadcasting Standards Authority – 17 November 2003
4. TVNZ’s Response to the Authority – 5 December 2003
5. The Complainants’ Final Comment – 20 January 2004
6. TVNZ’s Submission on Orders – 2 April 2004
7. The Complainants’ Submission on Orders – 5 April 2004