Thelning and MediaWorks TV Ltd - 2017-038 (17 July 2017)
- Peter Radich (Chair)
- Paula Rose
- Te Raumawhitu Kupenga
- Sven Thelning
BroadcasterMediaWorks TV Ltd
[This summary does not form part of the decision.]
During a ‘Vote Smart’ segment on The Project, host Jesse Mulligan discussed what he considered to be the ‘horribl[e] underfund[ing]’ of the Department of Conservation (DoC). Mr Mulligan said, ‘DoC doesn’t have a big lobby group to argue their case. You know when Big Dairy puts their hand out, they get offered up to $400 million to spend on irrigation. That’s DoC’s whole budget, but it’s being spent on growing dairy, which, if anything, makes the conservation job even harder’. The Authority did not uphold a complaint that the comparison made between DoC and Crown Irrigation was inaccurate and misleading as the funding models of these two entities are different. The comment was not a statement of fact which triggered the requirements of the accuracy standard. Rather, it was distinguishable as opinion and analysis about the differences in lobbying power between different industries, and what Mr Mulligan considered to be DoC’s difficulty in obtaining greater funding. The Authority did not consider viewers would have been misled in the manner alleged by the complainant, taking into account the purpose of the segment as a whole, which was to draw viewers’ attention to an issue Mr Mulligan believed to be important in the context of the upcoming general election. The item carried public interest in this respect and the Authority did not consider any harm had been caused by the broadcast which outweighed the broadcaster’s right to freedom of expression.
Not Upheld: Accuracy
 During a ‘Vote Smart’ segment on The Project, host Jesse Mulligan discussed what he considered to be the ‘horribl[e] underfund[ing]’ of the Department of Conservation [DoC]. In the middle of the segment, Mr Mulligan said:
DoC doesn’t have a big lobby group to argue their case. You know when Big Dairy puts their hand out, they get offered up to $400 million to spend on irrigation. That’s DoC’s whole budget, but it’s being spent on growing dairy, which if anything makes the conservation job even harder.
 Sven Thelning complained that the comparison between DoC and Crown Irrigation was inaccurate and would have misled viewers, as the funding models of these two entities are different.
 The issue raised in Mr Thelning’s complaint is whether the broadcast breached the accuracy standard as set out in the Free-to-Air Television Code of Broadcasting Practice.
 The item was broadcast on 3 April 2017 on Three. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Was the broadcast inaccurate or misleading?
 The accuracy standard (Standard 9) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from being significantly misinformed.
 The standard applies only to material statements of fact broadcast during news, current affairs or factual programmes. It does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.1
The parties’ submissions
 Mr Thelning submitted:
- Mr Mulligan’s statement clearly communicated that Crown Irrigation is given $400 million in funding in the same way that DoC is funded, ie, with no expectation of financial return or matching funding. This is inaccurate, because the $400-million irrigation acceleration fund is primarily investments, rather than the straight grant that is given to DoC.
- Mr Mulligan claimed the one-off $400 million allocated for irrigation investments over several years is the same as DoC’s budget, but DoC has recently been given at least $430 million each year.
- The funding models were material to the audience’s understanding of both a broadcast intended to compare lobbying effectiveness, and to a broadcast intended to compare the results of lobbying (ie, funding quality and funding models). If the funding models were not material, they would not have been referred to.
- The Project has the tagline, ‘news delivered differently’, which gives the impression that the show is factual. The segment was not labelled in any way as opinion, and began by Mr Mulligan saying he wanted to talk about ‘the fact’ DoC is ‘horribly underfunded’.
 MediaWorks submitted:
- DoC and Crown Irrigation may have different funding models, however any such differences were not material to the audience’s understanding of the ‘Vote Smart’ segment.
- The issues raised by the complainant only relate to a very small part of the segment and the reference to Crown Irrigation was made in passing.
- Mr Mulligan’s purpose in referring to the Crown Irrigation fund was not to equate DoC’s funding model with that of Crown Irrigation. Rather, it was to show that where the dairy industry had identified a need for funding it was able to successfully lobby for it, whereas Mr Mulligan believed DoC lacked the resources to do the same.
- It is not apparent that schemes funded by Crown Irrigation must always provide a financial return to the Government. The broadcaster took reasonable steps to ensure the accuracy of the item by reviewing information on the Crown Irrigation website, and it was appropriate to refer to this entity.
- It would be unusual to expressly label current affairs content as ‘opinion’. The audience would have realised that Mr Mulligan was expressing his own opinion when he said, ‘Tonight, I want to talk about the fact that in 2017 DoC is horribly underfunded’. While an opinion piece may contain statements of fact which are subject to the accuracy standard, in this case the item was accurate in relation to all material points of fact and did not mislead.
 The starting point in our consideration of any complaint is the right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information. This is an important right in a democratic society, and we may only interfere and uphold a complaint where to do so would impose a limitation on the right which is reasonable and justified in a free and democratic society.2 In deciding whether any limitation on the right to freedom of expression is justified, we first consider the value and public interest in the broadcast, and then weigh that value against any harm that has resulted, or might result, from the broadcast.
 The Project is a current affairs programme which features hosts and guests who at times take an unorthodox and humorous approach to issues. The particular segment in question, ‘Vote Smart’, was intended to assist voters by highlighting an issue that the host wanted voters to be aware of. This was the first instalment of a recurring segment, the focus being Mr Mulligan’s concerns about inadequate DoC funding.
 We consider this item carried public interest and high value in terms of the right to freedom of expression, as it dealt with political issues and topics that help us govern ourselves.3 In the lead-up to a general election, discussion of such issues is particularly important and we must be cautious before restricting this type of expression.
 In our view this was largely an opinion piece about what Mr Mulligan considered to be an important election issue, and we consider viewers would have understood it as such. The statement subject to complaint was distinguishable as Mr Mulligan’s opinion and analysis of the differences in lobbying power between different industries – in other words, it reflected what Mr Mulligan believed to be one aspect of DoC’s difficulty in obtaining greater funding.
 We acknowledge Mr Thelning’s submission that the funding models for DoC and Crown Irrigation are different. However, we do not think viewers would have interpreted Mr Mulligan’s remark as a statement of fact, or as a factual comparison of how the funding models of each organisation operate, in the context of the wider item.
 Overall, we do not find that the item caused any harm or that viewers would have been misled, taking into account the premise of the ‘Vote Smart’ segment, and that the comment complained about formed only a brief part of the item as a whole. It was peripheral to Mr Mulligan’s main message that DoC is, in his view, operating with inadequate funding and voters should be alert to this in the upcoming election. The opinion and analysis presented had high value in terms of freedom of expression and we do not consider intervention by the Authority is warranted in this case.
 Accordingly, we do not find any breach of Standard 9.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
17 July 2017
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Sven Thelning’s formal complaint – 3 April 2017
2 MediaWorks’ response to the complaint – 4 May 2017
3 Mr Thelning’s referral to the Authority – 5 May 2017
4 MediaWorks’ response to the Authority – 26 May 2017
5 Mr Thelning’s final comments – 3 June 2017
1 Guideline 9a
2 See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6.
3 Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6.