BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
3 News Special – included an interview with Prime Minister – canvassed allegations in "Seeds of Distrust" by Nicky Hager published that day – claimed that Government was aware of accidental distribution of GM contaminated seeds – unfair and unbalanced – ambush – TV3 argued that referral of complaint to the Authority raised new issues – not permissible under Act – scope of referral

Findings on acceptable scope of referral
In response to complaint, broadcaster invited complainants to detail accuracy complaint – details contained in referral – to the extent that referral responded to broadcaster’s invitation, issues not new

This headnote does not form part of the decision.

INTERLOCUTORY DECISION

The Background

[1] Detailed claims from the book "Seeds of Destruction", written by Nicky Hager and published that day, were put to the Prime Minister by interviewer John Campbell during part of a 3 News Special broadcast at 7.00pm on 10 July 2002. Viewers were advised that the interview had been recorded the previous day – 9 July. The first segment of the programme included an interview with Mr Hager and some comment about the book. The next two segments contained the interview with the Prime Minister. The book, which was not mentioned during the interview with the Prime Minister, alleged that the Government was aware of the accidental distribution of GM contaminated seeds and had allowed the seeds to be grown, harvested and processed.

[2] In his own right and on behalf of the Prime Minister (Rt Hon Helen Clark), Mike Munro, the Prime Minister’s Chief Press Secretary, complained to TV3 Network Services Ltd, the broadcaster. The specifics of the complaint are set out in Mr Munro’s letter of 12 July 2002. On the first page of that letter, it is said that the complaint related to:

1. The agreement under which Helen Clark agreed to participate in the interview;

2 The conduct and content of the interview itself;

3. The failure of TV3, between the recording and the transmission of the interview, to
    ensure that the recorded interview was dealt with in accordance with the applicable
    broadcasting standards, and in accordance with established principles of editorial
    and broadcasting ethics.

[3] The letter goes on to refer to the purpose of the interview, the arrangements for the interview, the sequence of events and matters discussed, the recording of the interview (including the circumstances of the subsequent broadcast of that interview), and the use of material said to be obtained by deception. The complaint relied on Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[4] TV3 responded by way of a six page decision of its Standards Committee dated 24 July 2002. The decision addressed each of the subject headings raised by Mr Munro in his letter of complaint. It declined to uphold the complaint. Among other things, in relation to the fairness aspect of the complaint TV3 said that the Prime Minister had not been told about the Hager book (upon which the interviewer had relied) because of the confidentiality arrangements regarding its access to the book. In all the circumstances, the Committee considered that the Prime Minister had been given fair warning of the topics raised in the interview, and had been fairly treated during the interview. In relation to the accuracy aspect of the complaint, the Committee said that it was unable to answer Mr Munro’s allegations in the absence of details of the matters alleged to be inaccurate. It invited the complainants to provide further details.

[5] Dissatisfied with TV3’s response, the complainants referred their complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

Discovery

Application by Complainants

[6] As part of their referral, the complainants wrote:

The complainants seek orders from the BSA for the delivery up and disclosure of all documentation relating to this alleged arrangement for "confidentiality" relied on by TV3. Such documents would include all written communications relating to the provision of the copy of the book, all supporting documentation or other written material received with it, all communications from TV3 accepting such alleged conditions, and all material, including the recorded video material, relating to the preparation for the interview. If (as appears from the content of transmitted programme to be the case) the transmitted material showing Mr Hager was recorded before the interview with the Prime Minister, orders are sought from the BSA for the delivery up and disclosure of the whole of that recorded material, as this information formed the undisclosed basis for the interview with the Prime Minister.

[7] The Authority sought and obtained from the complainants comprehensive written submissions in which argument was advanced as to why the materials, in respect of which disclosure was requested, were relevant to the referral of their complaints. The submissions included a schedule of documents sought.

Broadcaster’s Response

[8] The Authority then sought TV3’s submission on the complainants’ application. In its submission, TV3 argued that the material had to be limited to the relevant issues. Much of the material sought was irrelevant, it continued, given the unjustified increase in the scope of the referral when compared with the limited nature of the original formal complaint.

Scope of Referral

Broadcaster’s Submission

[9] In a letter to the Authority dated 12 September 2002, the broadcaster focused on what it described as "the scope of the complainants’ referral". It contended that the complainants should be confined to the issues raised in the original formal complaint and cited authority that complainants, when referring a complaint to the Authority:

may not significantly broaden the scope of their complaint to include allegations not made at the time of the original formal complaint.

[10] Two recent decisions in the Auckland High Court were cited (Hooker v TVNZ PDF1.09 MB AP 138/01 and TV3 v Holt PDF1.5 MB AP 147/01). The broadcaster also referred to four earlier Authority decisions which it considered could be useful:

Ernslaw and TVNZ Decision No: 1995-062  

James and TVNZ Decision No: 2001-012 

Hooker and TV4 Decision No: 2001-217

Hooker and TV4 Decision No: 2002-029

[11] TV3 argued that the main thrust of the original formal complaint was:

… that the Prime Minister had been "tricked" or misled into providing the interview and that a lack of notice of the detailed subject matter had tainted the broadcast and caused it to be unfair and in breach of the relevant standards – Standard 6 was nominated.

[12] The referral, on the other hand, TV3 wrote, made new allegations and the main theme appeared to be that, during the interview, Hager’s allegations had been accepted uncritically by TV3. However, TV3 maintained, those allegations had not featured in the original formal complaint.

[13] TV3 acknowledged that the original formal complaint had raised Standard 5 – Accuracy, but had not included any details, and it had not been dealt with as it was not the broadcaster’s role to speculate on what might be in contention.

[14] TV3 did not accept that a reference to the principles in regard to complaints set out in s.5 of the Broadcasting Act were relevant. A broadcaster’s job, it wrote, was to deal only "with issues specifically raised by the complainants". By way of summary, TV3 stated:

The complainant is now seeking to add substantially to the terms of the original complaint by introducing new material. Our attached Schedule identifies the new allegations. These allegations are not "understandable amplifications" of the original complaint. The broadcaster objects and requests that the Authority rule on this matter by requiring the complainants to recast the referral in terms of the original formal complaint.

Complainants’ Submission in Response

[15] The Authority sought the complainants’ response on the issue of the "scope" of the original formal complaint and the referral. The complainants submitted TV3’s assertion that the referral expanded the scope of the original complaint was factually wrong and without legal basis.

[16] In its first argument in support of this contention, the complainants submitted that the six points listed by TV3 as "new" issues raised in the referral were issues of factual accuracy or amplification of the broadcaster’s response to the original formal complaint.

[17] As its second argument, the complainants maintained that the issues had been expressly raised by the Prime Minister during the course of the interview complained about. Citing comments made by the Prime Minister during the interview, and noting that she was not aware of the Hager book or its contents at that time, the complainants contended that the "express references" to breaches of standards of journalism, were, as required by s.5(e) of the Act, complaints "made promptly" to the broadcaster. The complainants said:

If TV3 had responded by not broadcasting the recorded interview, then these complaints would have been resolved as contemplated by section 5. In fact, the material, already identified to TV3 as breaching standards, was incorporated in a programme which contained further breaches of standards. This led to the formal complaint.

For TV3 to respond to this (as it did) by claiming in its standards committee decision that it did not know what the breaches of standards of journalism were, must raise the suspicion that the committee did not view the programme or read any transcript of it. Had the committee done so, it could scarcely have claimed the ignorance that it records in its decision.

[18] As the third contention, the complainants said that a referral could include all the material discussed by the broadcaster in its response to the formal complaint. In the broadcaster’s decision on the formal complaint, they observed, the programme complained about had been described as one in which Hager’s allegations were canvassed during an interview with the Prime Minister. That programme was the subject of the original formal complaint and, later, the referral. Accordingly, as TV3 reported that it dealt with Hager’s allegations – even if not referred to specifically, those allegations could be raised in the referral.

[19] In challenging TV3’s reliance on s.14 of the New Zealand Bill of Rights Act 1990 as being confused and legally erroneous, the complainants identified the most significant statement in Decision No: 2000-029 (referred to TV3’s Standards Committee in its response dated 24 July 2002) as being:

… as circumstances and the public interest demand, at times it is necessary to deceive a subject being interviewed in order to get the "unvarnished" response.

[20] The complainants continued

This is at the heart of TV3’s defence and is repeated in its "Bill of Rights" defence – namely the claim that the public interest in the present instance justified deception of the Prime Minister by TV3.

TV3 cannot expect to give a decision of this nature without facing a referral to the Authority which is a direct challenge to that claim.

[21] The complainants then turned to the authorities cited by TV3 and, as their central point, argued that the referral did not include any standards not cited in the original formal complaint. Accordingly, they said, the decisions did not support TV3’s submission.

[22] As the final point, the complainants addressed the provisions in the Broadcasting Act involving the complaints process and the Broadcasting Standards Authority. Focusing on s.8 which was described as the operative provision, the complainants contended that it provided for the referral of a complaint. Section 12, they argued, outlined an investigatory role for the Authority, which was not confined to the terms of the original formal complaint.

The Authority’s Determination

[23] The Broadcasting Act 1989 enables a complainant, on receipt of the broadcaster’s response to a formal complaint, to refer the complaint to the Authority and "to seek an investigation and review of the broadcaster’s action or decision, as the case may be" (s.7(3)). Having regard to s.7(1) and (2), action means the "action taken" by the broadcaster upon upholding the formal complaint, and a "decision" is made when the broadcaster finds that the complaint is not justified.

[24] A complainant exercises a right to refer a complaint under s.8 of the Act. While the Authority acknowledges that s.7 is informative and s.8 is the operative provision, it also considers that s.7(3) sets the boundaries of its function with regard to complaints that have been referred. It considers that its function is confined to investigating and reviewing the broadcaster’s action or decision as the case may be.

[25] Some aspects of the Authority’s tasks when reviewing a complaint were touched on in recent decisions referred to above (Hooker and Holt). They were mainly concerned with the power of either the broadcaster or the Authority to assess a complaint under a standard not raised in the original formal complaint. As this is not an issue with this complaint, Hooker and Holt are not of direct relevance. However, both decisions assume that, regardless of the standards cited, the formal complaint sets the boundaries of the issues which may be taken into account by the Authority.

[26] While the original formal complaint may establish the broad boundaries of the issues which the Authority may consider, the Authority has not taken the approach that a complainant is confined by the legislation to the arguments advanced in the original complaint. When referring a complaint to the Authority for review and investigation, most complainants debate aspects of the broadcaster’s response and may well elaborate on points made initially.

[27] TV3 referred to decision No: 1995-062 (Ernslaw), and the complainants referred to the process discussed in this decision when arguing that one matter dealt with in the referral was an elaboration of an earlier point and not a "new" issue as the broadcaster claimed. The Authority continues to interpret the legislation in regard to its role as it was explained in Ernslaw (and subject to the refinements discussed in Holt) when the Authority said:

Because the Authority’s statutory function under the Broadcasting Act 1989 is to accept referrals which "seek an investigation and review of the broadcaster’s action or decision as the case may be" (s.7(3)), it is not able to accept new aspects of a complaint when a complainant requests the review of a broadcaster’s decision. However, in applying the provision, the Authority has often found that the extra points raised in the referral amount to an elaboration of points previously raised rather than the introduction of a new point. Nevertheless, while the Authority has accepted elaborations, explanations and clarifications of points already made, it has only accepted the introduction of new standards in the referral on rare occasions. A referral may expand on points which the broadcaster has considered; it may not introduce alleged breaches of standards not previously assessed by the broadcaster when responding to the initial complaint.

[28] The complainants argued that the matters contained in the referral had been raised during the interview by the Prime Minister when she complained that the interview was a set-up and that she could not be expected to respond to detailed questions without advance notice. The complainants contended that the comments amounted to a complaint under s.5(e) of the Act, which would have been resolved by not broadcasting the recorded interview. TV3’s actions in doing so, the complainants added, "led to a formal complaint".

[29] The Authority notes that s.5 distinguishes between a "complaint" and a "formal complaint". Neither term is defined in the Act. However, s.5(f) states that formal complaints must be in writing, and ss.6 and 7 outline the broadcasters’ responsibilities with regard to "formal complaints". While the Prime Minister’s verbal complaints made during the pre-recorded interview gave notice to TV3 of the prospect of a formal complaint and an opportunity to take remedial action if the complaint was considered to have substance, the Authority does not accept that the comments in themselves constituted part of the written formal complaint lodged with TV3 dated 12 July 2002.

[30] The complainants also submitted that, because TV3’s description of the programme in its written response to the complainants referred to Hager’s book and the allegations it contained, that enabled the complainants, in the referral, to refer to TV3’s uncritical acceptance of the allegations in the book.

[31] The Authority notes that the description of the programme is given by way of an introduction to the broadcaster’s decision on the complaint. The next heading in the decision is "Your Complaint" and that is followed by the broadcaster’s response. The Authority concludes that, if a referral is to be accepted on the basis of material contained in the broadcaster’s response to the formal complaint but not canvassed in the original complaint, then that material should be presented by the broadcaster in response to an argument put forward in the original formal complaint. As the book is referred to again in TV3’s response, for example, when it is noted that the Prime Minister was offered a second interview at a time after she would have been briefed on the book, the Authority is inclined to the view that the references to the book in TV3’s response to the formal complaint might be sufficient to justify the aspect of the referral which dealt with what has been described as TV3’s uncritical acceptance of the allegations. However, in view of its conclusion on other aspects of TV3’s response, the Authority does not reach a firm conclusion on the submission that the references to the book in themselves justified the matters explored in the referral.

[32] The Authority is of the opinion that because some other aspects of the referral indeed responded to a point made by the broadcaster, it considers that the matters raised in the referral are not excluded on the basis that they are "new" issues. It now proceeds to deal with the aspect of the response which, it finds, entitled the complainants to raise a number of the matters to which TV3 has taken objection on the basis that they are "new".

[33] In their original formal complaint to TV3, the complainants wrote by way of introduction:

The complaint relates to:

1. The agreement under which Helen Clark agreed to participate in the
    interview;

2. The conduct and content of the interview itself;

3. The failure of TV3, between the recording and the transmission of the
    interview, to ensure that the recorded interview was dealt with in
    accordance with the applicable broadcasting standards, and in
    accordance with established principles of editorial and broadcasting ethics.

Details of the standards and principles relied on are set out later in this complaint.

[34] The complainants later nominated Standard 6 of the Free-to-Air Television Code of Broadcasting Practice, and referred to Guidelines 6a, 6b and 6c. They read:

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.

6c  Programme makers should not obtain information or gather pictures through misrepresentation or deception, except as required in the public interest when the material cannot be obtained by other means.

[35] The complainants also alleged a breach of Standard 5 "generally and in relation to news standards". Standard 5 provides:

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

[36] The decision of TV3’s Standards Committee dealt fully with the arrangements for the interview and the conduct and content of the interview itself. It also reported on the efforts, eventually unsuccessful, it made for a second interview which the Prime Minister had requested, and it declined to uphold the complaint as a breach of Standard 6 or the nominated guidelines.

[37] As for Standard 5, TV3 wrote:

… you have failed to give any specific examples of a breach of this standard. Without detail of the matters which you consider were inaccurate we cannot answer this allegation. Nor can we comment on your alleged breach "generally and in relation to news standards". We simply do not know what you mean by that statement. If you care to set out in some detail how and why you consider these standards to have been breached we shall respond but we do not intend to speculate about what you might mean by the allegation.

[38] The Authority notes that TV3 invited the complainants to detail how the programme failed to comply with the requirements of Standard 5. Standard 5 requires factual accuracy, impartiality and fairness. The Authority considers that it is an invitation which the complainants were entitled to take up when referring the complaint to the Authority.

[39] There are six sections of the referral which TV3 argued should be excluded on the basis that they raised new issues and, as a consequence, were unjustified additions to the original formal complaint.

[40] The first section objected to came in paragraph 10, when the complainants stated:

First, the programme did not canvass "allegations" either in the first segment, or in the interview. It presented matters as being fact, in respect of which the Prime Minister was challenged.

[41] The complaint on this point is an allegation that the broadcast breached Standard 5 in that it inaccurately presented what were allegations as fact. Consequently, the aspects of the referral which complain about the broadcast on this basis are, in the Authority’s finding, appropriately included in the referral. The Authority acknowledges that this ruling amounts to a decision that the referral does not expand the scope of the original formal complaint in a way that is ultra vires the Broadcasting Act. It now addresses the five remaining sections in the referral which were challenged by the broadcaster.

[42] TV3 also objected to the section entitled "TV3 treats Mr Hager’s claims as fact" covered in paragraphs 19–22. The complainants objected to what they considered to be false allegations that were put to the Prime Minister as fact during the interview, for example, that Cabinet had deceived the Royal Commission. The Authority notes that it does not expect TV3 to reach a definitive answer as to whether the Cabinet and the Prime Minister did or did not break the law. Nevertheless, it does expect that the matter be dealt with by TV3 as a complaint about impartiality and objectivity. However the Government’s public response to Hager’s book was made between the time when the interview was recorded and the time that the interview was broadcast. This response indicated that the Government considered that TV3 would have been aware that many of the claims in the book were contestable. Accordingly, in the Authority’s view, the complaint that the interview, by not acknowledging at the time of the broadcast that there were other perspectives, and thereby breached Standard 5, requires a response.

[43] As for the third section of the referral, TV3 argued that paragraph 23 headed "A breach of standards of journalism", amounts to a new issue. The Authority notes that Mr Munro’s letter of complaint to the broadcaster specifically referred to an alleged breach of "broadcasting ethics" in relation to the recording and transmission of the interview. The Authority will consider this aspect of the complaint strictly by reference to the requirements of the legislation, the Free-to-Air Television Code of Broadcasting Practice, earlier decisions of the Authority and the High Court and the standards relied on by Mr Munro.

[44] As for the section in the referral entitled "Two erroneous editorial judgments", TV3 considered that new issues were introduced.

[45] The first (paragraph 26) was the reference to broadcasting the interview in light of the information which had earlier become available. The Authority regards this as a matter of accuracy, impartiality and objectivity.

[46] The second (paragraphs 26 and 27) was transmitting the interview, including live presentations to camera by the interviewer without acknowledging the information and counter information available in the 24 hours since the item was recorded. In the Authority’s view, as explained in para [42] this raises a Standard 5 issue and is also an appropriate issue for referral in view of TV3’s invitation.

[47] Finally, in paragraphs 29 and 30, the complainants wrote:

Statements presented as fact:

29) The programme presented as fact, matters which at best were allegations by Mr Hager. The most serious were the extracts from the programme which have been cited above, and the statement that "Tests had confirmed GM material was present", which Mr Campbell gave as a fact when the reality, stated publicly on 19 December 2000 and confirmed on 10 July 2002 by the Minister for the Environment, was that "there was no evidence of GM contamination in the corn seed" (Press release of 10 July 2002).

30) Each of these matters breaches the requirement for accuracy in the broadcasting standards.

[48] This aspect of the complaint summarises the contentions raised in the referral which TV3 argued were "new" material. On the basis that TV3 invited details of alleged inaccuracies in its response to the complainants when answering the original formal complaint, the Authority does not accept TV3’s submission.

[49] The Authority understands why TV3 considered that "fairness" was the central theme of the formal complaint received initially from the complainants. Aspects of alleged unfairness were detailed, and those aspects were covered by TV3 in its response.

[50] The Authority regards its statutory role, when determining the referral of a complaint which the broadcaster has not upheld, to be to investigate and review the broadcaster’s decision. TV3 did not deal with the alleged breach of the requirement for factual accuracy, impartiality and objectivity contained in the complaint on the basis that it could have done so only by way of speculation. At the time that was an appropriate response. However, it left an invitation on the table for the alleged inaccuracies to be advanced, and, as a result, the referral by accepting the invitation raises matters to which TV3 are required to respond.

[51] TV3 has responded to part of the complainants’ application for disclosure, but has expressly reserved its position on the balance until the Authority has ruled on the scope of the referral received.

[52] In view of the Authority’s determination on the scope issue, TV3’s response to the discovery application on those aspects of the referral which the Authority has accepted as justified is now sought.

For the reasons above (and subject to the restrictions noted by the Authority), the Authority finds that the issues raised in paragraphs 10, 19–22, 23, 26, 27–28 and 29–30 of the complainants’ referral to the Broadcasting Standards Authority, dated 19 August 2002, are appropriately referred to the Authority.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
7 October 2002