BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary [This summary does not form part of the decision.] 

During The AM Show, host Duncan Garner and then Newshub political editor Patrick Gower discussed various policies the new Labour Government was considering implementing, as well as legislation it planned to change or repeal. Discussing the ‘three strikes’ law, Mr Gower referred to one of the complainants, Mr Garrett, who was involved in introducing the law, and stated, ‘turned out that he had been stealing dead babies’ identities himself before he came into Parliament’. Mr Garner later clarified that it was ‘one dead baby’. The Authority upheld three complaints that the segment was inaccurate and unfair to Mr Garrett. While the broadcaster acknowledged the statement was inaccurate, the Authority found Mr Garner’s correction was dismissive and perfunctory, and insufficient to correct the error. The Authority also considered that the manner and tone in which Mr Garrett was brought up in the discussion, despite the passage of time since his offence, was unfair. The Authority did not make any order, finding publication of its decision was sufficient to publicly notify the breach of standards, and help to repair any harm caused to Mr Garrett.

Upheld: Accuracy (Action Taken), Fairness. Not Upheld: Balance, Discrimination and Denigration
No Order 

Introduction

[1]  During The AM Show, host Duncan Garner and then Newshub political editor Patrick Gower discussed various policies the new Labour Government was considering implementing, as well as legislation it planned to change or repeal. One of these was the ‘three strikes’ law (Sentencing and Parole Reform Act 2010), which one of the complainants and former ACT MP David Garrett was involved in introducing to Parliament.

[2]  During the segment Mr Garner asked Mr Gower:

Now there’s a man regarded as least likely to be your [Mr Gower’s] cheerleader. His name is David Garrett, former Act MP and he, seven years ago, passed that legislation on the three strikes. Now Andrew Little as Justice Minister is going to get rid of it. Why is it useless? Why is Andrew Little getting rid of it? And has it had any impact at all?

[3]  Mr Gower responded:

Yeah well that’s the question isn’t it, has it had any impact at all? This was brought in by the ACT Party, and you’ll remember David Garrett, he was the guy that was tough on crime, got into Parliament, brought three strikes in, turned out that he had been stealing dead babies’ identities himself before he came into Parliament... so that sort of gave this thing [the three strikes legislation] a pretty bad name right from the beginning. [Emphasis added]

[4]  Approximately two minutes after these remarks, immediately after Mr Gower’s item had concluded and when Mr Gower was no longer on air, Mr Garner clarified:

Just very quickly – David Garrett, he stole the identity of one baby and that’s why he left – dead baby, actually – one dead baby, and that’s why he left Parliament. It wasn’t ‘dead babies’. He’s a lawyer and he might ring us and we might get in trouble so there we go, just clearing that up before he rings us.

[5]  Rachael Membery, David Garrett and David Round complained that the segment, specifically Mr Gower’s comment that Mr Garrett had been ‘stealing dead babies’ identities’, breached the accuracy and fairness standards. Ms Membery also raised the discrimination and denigration and balance standards.

[6]  MediaWorks upheld the accuracy complaints on the basis Mr Gower’s original statement was incorrect, however it considered appropriate action had been taken, noting the inaccuracy was corrected within the segment.

[7]  The issues therefore are: whether the action taken by MediaWorks having upheld the accuracy complaints was sufficient; and whether the segment otherwise breached the fairness, balance or discrimination and denigration standards of the Free-to-Air Television Code.

[8]  The segment was broadcast on 1 November 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.

Freedom of expression

[9]  When we determine a complaint alleging a breach of broadcasting standards, we first give consideration to the right to freedom of expression. The right to freedom of expression includes both the broadcaster’s right to impart ideas and information, and the public’s right to receive that information. Our task is to weigh the value of the programme and the importance of freedom of expression, against the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the resulting limitation on the right to freedom of expression is reasonable and justified.¹

[10]  The focus of the segment in this instance was a political discussion about the various policies the recently appointed Labour Government was considering implementing, as well as legislation it planned to change or repeal. Examining these issues and providing political commentary on the new Government’s proposed legislative changes was in the public interest. As part of this discussion reference was made to Mr Garrett and to his history. The question for us is whether these references to Mr Garrett resulted in any actual or potential harm to him or to his reputation, which outweighed the public interest value in the item and any public interest in referring to him specifically. Additionally, we are required to consider whether the action MediaWorks took in response to the breach of the accuracy standard was sufficient, or whether something further was required to remedy that harm.

Was the action taken by the broadcaster, having upheld the accuracy complaints, sufficient?

The parties’ submissions

[11]  The complainants submitted:

• Mr Gower’s phrase, ‘stealing dead babies’ identities’ implied that there were multiple incidents of identity theft, however there was only one, for which Mr Garrett was discharged without conviction.
• The use of the words, ‘[he] had been... before he came into Parliament’, suggested that prior to his election in 2008, Mr Garrett had regularly been stealing the identities of dead babies.
• The statement implied that Mr Garrett’s offence occurred just prior to his entrance into Parliament, when in fact it occurred in 1984.
• Despite Mr Garner’s correction, the inaccurate statement still had a detrimental effect on Mr Garrett’s reputation and the potential to mislead viewers.
• A ‘serious retraction’ and apology was required to remedy the breach.

[12]  MediaWorks submitted:

• MediaWorks accepted that the broadcast breached the accuracy standard, as Mr Gower inaccurately stated that Mr Garrett had stolen more than one identity.
• However, it considered the materiality of the inaccuracy was limited.
• The purpose of the statement was not to examine Mr Garrett’s wrongdoing but to ‘point out the irony of the architect of the three strikes law having a criminal past’.
• The correction by Mr Garner within the broadcast ensured that viewers understood that the identity theft in question happened on only one occasion and was not part of an ongoing pattern of behaviour.

Our analysis

[13]  We agree with the broadcaster’s assessment that Mr Gower’s statement that ‘[Mr Garrett] had been stealing dead babies’ identities himself before he came into Parliament...’ was inaccurate. Despite having written multiple articles on Mr Garrett and his history over the years,² Mr Gower made a statement that he knew or ought to have known was inaccurate, regarding Mr Garrett’s history and the particular incident 34 years earlier. Stating that Mr Garrett was guilty of multiple or repetitive acts of the same nature had the potential to misinform viewers about his past and the potential to cause harm.

[14]  The key issue therefore, is whether the action taken by MediaWorks, having acknowledged the accuracy breach, was sufficient.

[15]  MediaWorks submitted that Mr Garner’s correction at the end of the segment was sufficient to correct the inaccuracy and remedy any possible harm caused to Mr Garrett or his reputation through misrepresentation.

[16]  Despite the proximity of Mr Garner’s correction to Mr Gower’s inaccurate statement (two minutes after the statement), we do not consider the delivery or tone of the clarification was proportionate to the error.

[17]  The comment of Mr Garner in opening that Mr Garrett was ‘least likely to be [Mr Gower’s] cheerleader’) suggested some history between Mr Gower and Mr Garrett. This was then followed by Mr Gower’s inaccurate overstatement of the events of Mr Garrett’s past. Mr Garner’s correction of Mr Gower’s statement was flippant and glib. Mr Garner and Mr Gower were in powerful positions as they delivered their messages through a major television broadcaster. To some people, Mr Garrett with his stances on law and order may be an unattractive minor public figure. We think however that everyone is entitled to be treated fairly and to have facts about their past stated accurately if it is appropriate to state them at all.

[18]  In these circumstances we think that something more was needed in the correction to have seen it as a true correction and not something that was dismissive and perfunctory.

[19]  For these reasons, we uphold the complaints that the action taken by MediaWorks in relation to the accuracy standard was insufficient.

Was Mr Garrett treated unfairly?

[20]  The fairness standard (Standard 11) 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.

[21]  Guideline 11a to the fairness standard states that a consideration of what is fair will depend on the nature of the programme. Context will also be considered, including the public interest in the broadcast.

The parties’ submissions

[22]  The complainants submitted:

• The broadcaster did not seek Mr Garrett’s comment prior to the broadcast.
• In the past Mr Gower has ‘gleefully splashed’ details of Mr Garrett’s offence all over the news. Therefore, it must be inferred that his statement was a deliberate attempt to cause Mr Garrett as much distress and further harm as was possible.
• Viewers would have been given an unfair impression of Mr Garrett as a result of Mr Gower’s incorrect statement.
• The statement implied that Mr Garrett’s offence occurred just prior to his entrance into Parliament, when in fact it occurred in 1984.

[23]  MediaWorks submitted:

• In this case the issue of fairness is tied to the issue of accuracy – with the alleged unfairness arising from an inaccuracy.
• Because the inaccuracy in respect of Mr Garrett’s identity theft was corrected within the broadcast, viewers would have been clear that the identity theft was singular.
• This remedied any momentary unfairness caused by the original inaccuracy and prevented unfair harm to Mr Garrett’s dignity and reputation.
• It was not necessary for MediaWorks to seek comment from Mr Garrett prior to the broadcast.

Our analysis

[24]  The Authority has previously commented in relation to Mr Garrett’s past, and more generally regarding the relationship between a person’s historical wrongdoings and the fairness standard:³

There usually comes a point when, in fairness, a person’s past should be left in the past, and where that person should be allowed to get on with his or her life without having their life hurt by the revival of past events. The time between a damaging event and the bringing down of the curtain of peace and privacy will vary from case to case. There may be some situations where the curtain will never fall, but there may be others where it falls relatively soon after the adverse event. There will be many factors which will influence the time required. The nature of the offence or event, the subsequent conduct and the position which the person seeking privacy takes, will all be important factors.

[25]  As the broadcaster notes, in this case, the alleged unfairness to Mr Garrett derives from the inaccurate statement made by Mr Gower during the segment. Having regard to our findings in relation to accuracy, as well as the fairness principles outlined above in our previous decision, we have reached the view that this broadcast also resulted in Mr Garrett being treated unfairly.

[26]  We recognise that, to a limited extent, the reference to Mr Garrett was relevant to one of Labour’s proposed policy changes discussed in this segment – namely, the Labour Party’s plans to repeal the ‘three strikes’ legislation and the discussion of why Labour considered it had not been effective. In this context, Mr Gower noted a perceived contrast between Mr Garrett’s introduction of the legislation, his political position of being ‘tough on crime’, and his history.

[27]  However the tone of the presentation in relation to Mr Garrett was scornful. A broadcaster is entitled to be scornful towards an individual who still has some public presence, however when the scorn is founded upon statements of fact they have to be right. Here they were wrong. The broadcaster through Mr Garner acknowledged that they were wrong but, as we have said, the acknowledgement in our view was dismissive and perfunctory. We think that Mr Garner’s correction of Mr Gower’s incorrect statement should have been more moderate and less dismissive.

[28]  We therefore uphold the complaints under the fairness standard. We are satisfied that this does not place an unreasonable limit on the right to freedom of expression. We acknowledge that there was relevance in referring to Mr Garrett in the context of discussing whether the ‘three strikes’ legislation had been effective since its introduction. Given that the so-called identity theft had occurred more than 30 years earlier and that Mr Garrett had been discharged without conviction, some broadcasters may not have thought it reasonable to raise that matter again. Had it been raised accurately and moderately we could not have found it to be a breach of standards but here that is not what happened. It was raised inaccurately and excessively.

[29]  For completeness, we note that we do not consider it was unfair in this instance not to contact Mr Garrett for comment, given the nature and focus of the segment. Nor do we consider the segment suggested that Mr Garrett’s offence occurred just prior to his entrance into Parliament, rather than in 1984. These submissions from the complainants have not contributed to our finding that Mr Garrett was treated unfairly as a result of the incorrect and dismissive references to him and the inadequate correction.

Did the item otherwise breach broadcasting standards?

[30]  One of the complainants, Ms Membery, also raised the balance and discrimination standards in her complaint. We briefly address these standards below.

Balance

[31]  Ms Membery submitted Mr Gower’s statement was evidence of his clear bias and personal agenda, and this was not balanced with Mr Garrett’s personal view.

[32]  MediaWorks submitted the identity theft was mentioned only as an aside and did not amount to a controversial issue of public importance.

[33]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.⁴

[34]  Mr Garrett’s past was not the focus of this segment, which was a discussion by Mr Gower, as a political reporter, of Labour’s proposed policy and legislative changes. We do not consider the references to Mr Garrett’s past amounted to a controversial issue of public importance in the context of this broadcast. Therefore the balance standard was not triggered.

Discrimination and denigration

[35]  Ms Membery did not make any specific submissions under this standard. As the discrimination and denigration standard applies only to sections of the community, it cannot be applied in relation to the treatment of Mr Garrett as an individual (which we have addressed under the fairness standard). Therefore the discrimination and denigration standard does not apply.

For the above reasons the Authority upholds the complaints that the action taken by MediaWorks TV Ltd regarding the broadcast of The AM Show on 1 November 2017, having upheld the complaint under Standard 9 of the Free-to-Air Television Code of Broadcasting Practice, was insufficient. The Authority also upholds the complaints that the same broadcast breached Standard 11 of the Free-to-Air Television Code.

[36]  Having upheld parts of the complaints, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. In their complaints, the complainants submitted that the action taken by the broadcaster was insufficient because the potential harm was disproportionate to the correction and no public apology has been made.

[37]  In terms of the broadcaster’s conduct, we consider publication of this decision is sufficient to publicly notify the breaches of the accuracy and fairness standards, and to censure the broadcaster. The decision also provides guidance on the application of these standards and the level of care that is required to ensure all individuals referred to are not misrepresented and are treated justly and fairly.

[38]  We also consider that publication of the decision is a proportionate remedy, to assist in repairing any harm to Mr Garrett’s reputation and dignity.

[39]  In these circumstances we do not make any order.

Signed for and on behalf of the Authority

Peter Radich
Chair
18 April 2018 

Appendix

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

Rachael Membery’s formal complaint

1      Rachael Membery’s formal complaint – 1 November 2017
2      MediaWorks’ response to the complaint – 29 November 2017
3      Ms Membery’s referral to the Authority – 30 November 2017
4      MediaWorks’ response to the Authority – 14 December 2017

David Garrett’s formal complaint

5      David Garrett’s formal complaint – 3 November 2017
6      MediaWorks’ response to the complaint – 8 December 2017
7      David Garrett’s referral to the Authority – 6 December 2017
8      MediaWorks’ response to the Authority – 22 December 2017

David Round’s formal complaint

9      David Round’s formal complaint - 13 November 2017
10    MediaWorks’ response to the complaint – 19 December 2017
11    Mr Round’s referral to the Authority – 11 January 2018
12    MediaWorks’ response to the Authority – 7 February 2018
13    Mr Round’s final comments – 11 February 2018

¹ 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.

² See for example: http://www.newshub.co.nz/general/they-got-the-wrong-guy--garrett-2010091417 (Newshub, 14 September 2010) and http://www.newshub.co.nz/general/garrett-alleges-dark-forces-at-work-in-act-2010092317 (Newshub, 23 September 2010)

³ Garrett and Television New Zealand Ltd, Decision No. 2016-084 at [19]

⁴ Commentary – Balance, Broadcasting Standards in New Zealand Codebook, page 18