BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority did not uphold a complaint about an item on Nine to Noon with Kathryn Ryan that featured interviews with National Secretary of the New Zealand Professional Firefighters Union, Wattie Watson, and previous board member of the United Fire Brigades' Association (UFBA), Judith Stanley, about the handling of complaints by UFBA, and an investigation into its chief executive, Bill Butzbach, citing allegations made against him, and the board’s chair, Richie Smith. The complaint was that the item breached the balance, accuracy, privacy and fairness standards on the basis it gave undue prominence to the ‘ill-informed’ views of those with a vested interest in discrediting the UFBA, and did not present the views of the UFBA and facts provided by it until the very end. The Authority found the item achieved balance and fairness by giving the UFBA a reasonable opportunity to respond, and including its statement. The Authority also found the item was not materially inaccurate, and did not disclose facts to which a reasonable expectation of privacy attached.

Not Upheld: Balance, Accuracy, Privacy, Fairness

The broadcast

[1]  An item on Nine to Noon with Kathryn Ryan, broadcast on RNZ National on 9 February 2021, featured interviews with National Secretary of the New Zealand Professional Firefighters Union (NZPFU), Wattie Watson, and previous Board member of the United Fire Brigades' Association (UFBA), Judith Stanley, concerning issues of performance and governance at UFBA. It was introduced as follows:

Well, first, new revelations about governance at the association for the country's 11,000 volunteer firefighters, and calls for a ministerial inquiry. The chair of the United Fire Brigades’ Association and its chief executive are the sole shareholders of a limited liability company that was registered two weeks before the chair commissioned an inquiry into the chief executive. Richie Smith, chair of the UFBA, and its controversial chief executive, Bill Butzbach, jointly registered Tangata Matatau Limited with the Companies Office on August 3rd last year. Just over two weeks later, Mr Smith commissioned a QC to conduct an inquiry into Mr Butzbach, relating to claims of bullying and harassment…The inquiry that was led by Kirsty McDonald QC, was abandoned and Mr Butzbach reinstated… Now the union representing professional firefighters is questioning whether the $4 million the UFBA receives every year from the public purse is being well spent. Its national secretary, Wattie Watson, says the UFBA is doing a poor job of providing advocacy and support, and there appears to be no control monitoring or transparency over the use of that funding. Meanwhile, the first ever woman elected to the board of the UFBA, Judith Stanley, has written to the minister responsible for Fire and Emergency, Jan Tinetti, asking for a ministerial inquiry.

[2]  The ‘new revelations’ addressed in the broadcast focused on the fact the chair of the UFBA board, Richie Smith, was overseeing an investigation into Mr Butzbach, while Mr Smith and Mr Butzbach were the two sole directors of a company, Tangata Matatau, set up during the process of merging the UFBA and Forest and Rural Fire Association, and only two weeks prior to the commencement of the investigation. This was considered to raise a conflict of interest:

Ms Watson:     Well, it reeks really, in terms of the timing. The company, you know, might be legitimate…what reeks really, is that the chair of the board and the CEO are the two registered with the company, they're the directors, shareholders, and the timing of it.

Ms Ryan:        So the company itself is not the issue. The issue is that the chair and the CEO of an association representing fire fighters are the directors together in the company. Does it amount to a conflict of interest?

[3]  Throughout the broadcast, Ms Ryan referred to them as shareholders and directors interchangeably, while Ms Watson referred to them as directors and shareholders.

[4]  The broadcast also canvassed the interviewees’ views regarding UFBA governance, leadership and processes, funding and financial management, complaints handling and the inquiry into allegations against Mr Butzbach.

[5]  The item concluded with Ms Ryan reading out written statements from:

• the UFBA, explaining:
  • the background to the establishment of Tangata Matatau
  • the purpose of the company
  • UFBA’s involvement, only as an interim measure (voted for by the Associate Members Council) to support a handover
  • Tangata Matatau has ‘full confidence’ in its leaders
• the responsible Minister, Hon Jan Tinetti explaining:
  • her expectations around management of complaints
  • her confidence that ‘fire and emergency is committed to making sure that these past experiences are not repeated in future’

The complaint

[6]  The UFBA complained the broadcast breached the balance, accuracy, privacy and fairness standards:

Balance:

• ‘Kathryn Ryan chose not to read out the facts as provided by the UFBA until the end of the 30-minute segment, rather, choosing to fill the full segment by repeating many accusations already reported by RNZ…’
• ‘For listeners that did not wait for 30 minutes to hear the actual facts, they would have again been left with an inaccurate impression of the UFBA, its Chair and Chief Executive, and the relationship between the UFBA and [Fire and Emergency New Zealand].’

Accuracy:

• ‘It was reported several times leading up to the Nine to Noon show on 9 February 2021, then throughout the show, and with the segment of the show remaining online on the RNZ website, that [Mr Smith and Mr Butzbach] were sole shareholders of Tangata Matatau.’
• ‘A simple search of both the Companies Office and the Incorporated Societies register would have confirmed this to be inaccurate.’
• ‘As this is a matter of public record and easily accessible, it was inaccurate and therefore sloppy or worse, deliberately misleading.’

Privacy:

• ‘The relentless public accusations and naming of the UFBA Chief Executive, Mr Butzbach, who was unable to clear his name due to the complainants’ non-participation in the Inquiry over a four-month period which led to the Inquiry being abandoned, has [caused] and continues to cause considerable mental health harm, trauma and grief to Mr Butzbach, his wife, children and wider family.’
• ‘Mr Smith is a professional director with a stand-out reputation. The continued publication of mistruths and inaccuracies about Mr Smith, by RNZ, is nothing short of harmful.’
• ‘To the point that Mr Butzbach and Mr Smith are public figures and because of that somehow have no right to “privacy” they surely deserve, at a minimum, fair and balanced reporting by a public-funded Crown Entity. The RNZ reporting to-date is taking the line of “guilty until proven innocent”.’

Fairness:

• The UFBA was only contacted at 7.15am on 9 February, for comment on the item due to air at 9am. More time could and should have been given to the UFBA and others to prepare an informed response.
• A response was provided by 9am, but the item proceeded with a ‘30-minute ill-informed discussion with a disaffected person and the New Zealand Professional Firefighters Union with a well-known vested interest in discrediting the UFBA during these changing times within the fire and emergency sector’.
• ‘It was not until approximately 9.29am that the official response from the UFBA was read out to listeners. By that time, viewers would have [formed] a view of wrong-doing by the UFBA Chair and Chief Executive along with other mischievous claims that were also sought to be corrected in the official response provided by the UFBA.’
• ‘It is evident that the Nine to Noon show was therefore showing bias to the ill-informed views of Ms Stanley and Ms Watson. RNZ did not demonstrate fairness and balance with this approach.’

[7]  Our jurisdiction is limited to considering complaints about specified broadcast content, and so we have not considered the aspects of the complaint relating to content ‘leading up to the Nine to Noon show’ or online content.

The broadcaster’s response

[8]  RNZ did not uphold the UFBA’s complaint:

• Balance: The inclusion of the written statements from the UFBA and Ms Tinetti ensured significant points of view were presented and balance was achieved.
• Accuracy: Inaccurate references to Mr Smith and Mr Butzbach as the two shareholders of Tangata Matatau, when they were in fact the two directors, did not mislead listeners as the point being made was that there was a potential conflict of interests, in the opinions of those interviewed.
• Privacy: The complaint did not identify any private facts about Mr Butzbach or Mr Smith that were disclosed in the broadcast.
• Fairness: ‘It is not unusual for current affairs programmes to seek comment from interested parties in a fairly tight timeframe… [N]o unfairness arose in terms of the order in which the statements were broadcast… The statements [of UFBA and Ms Tinetti] were given due prominence in the programme[,] they were not truncated, and the audience would have well understood that the UFBA might have a different perspective of the issues raised in the interview.’

The standards

[9] The balance standard¹ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.² The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.³

[10]  The accuracy standard⁴ protects the public from being significantly misinformed.⁵ It states that broadcasters should make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.

[11]  The privacy standard⁶ respects, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public, but also allows broadcasters to gather, record and broadcast material where this is in the public interest. It states broadcasters should maintain standards consistent with the privacy of the individual.

[12]  The fairness standard⁷ protects the dignity and reputation of those featured or referred to in programmes.⁸ It ensures individuals and organisations are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

[13]  We have listened to the broadcast and read the correspondence listed in the Appendix.

Freedom of expression and overview of outcome

[14]  We have also considered the right to freedom of expression, which is our starting point. This includes the broadcaster’s right to offer a range of information and the audience’s right to receive that information. Our task is to weigh the value of, and public interest in, the broadcast against the level of actual or potential harm that may have been caused, with reference to the objectives of the standards described above. We may only intervene and uphold a complaint where the level of harm justifies placing a reasonable limit on the right to freedom of expression.

[15]  This broadcast carried a high degree of public interest. In an open and democratic society, broadcasts which scrutinise or which are critical of the actions of publicly funded entities and their officers are a vital component of freedom of expression. The broadcast media has a significant role to play in keeping the public informed, and holding such entities to account. In complaints of this kind and in previous similar decisions, we have stressed the importance of an appropriate balance between the public interest in ensuring that broadcasts are fair, balanced and accurate, and in allowing free criticism of those who are publicly funded.⁹

[16]  In this light and in the context of this broadcast, which referred to public allegations against the chair and chief executive of a publicly funded entity, and included written statements from that entity and from the minister responsible, we do not consider harm was caused at a level that justifies placing a limit on the broadcaster’s right to freedom of expression.

Balance

Does the balance standard apply?

[17]  For the balance standard to apply, the subject matter of the broadcast must be an issue of ‘public importance’, it must be ‘controversial’ and it must be ‘discussed’ in a news, current affairs or factual programme.¹⁰

[18]  An issue of public importance is something that would have a significant potential impact on, or be of concern to, members of the New Zealand public.¹¹ A controversial issue will be one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.¹²

[19]  We consider the issues of UFBA governance, leadership and performance discussed in the programme represent controversial issues of public importance. Therefore, the balance standard applies.

Reasonable range of perspectives

[20]  The question is whether RNZ presented a reasonable range of perspectives, which will always be fact and context dependent, reflecting the wider broadcasting environment within which audiences view content.¹³

[21]  No set formula can be advanced for the allocation of time to interested parties on such issues.¹⁴

[22]  We found the broadcaster presented a reasonable range of perspectives, taking into account the following:¹⁵

• The programme was a presentation of the views and experiences of Ms Watson and Ms Stanley, in light of the actions taken by the UFBA and the need for public accountability. It did not purport to be a balanced examination of the governance and operations of the UFBA, or the abandoned inquiry, or of the positons on either side of the issue.
• The programme was clearly signalled in its introduction as approaching the issue from the particular perspective of Ms Watson and Ms Stanley, with a view to understanding their calls for a ministerial inquiry.
• The item included verbatim the written statements of the UFBA and Ms Tinetti as the Minister responsible, at its conclusion so as to present their responses to the issues raised.
• Other issues canvassed in the programme surrounding UFBA governance and processes, funding and financial management, complaints handling and the inquiry into allegations against Mr Butzbach have been the subject of considerable and ongoing media attention. Viewers could reasonably be expected to be aware of views expressed in other coverage, including by RNZ and in press statements by the UFBA.¹⁶

[23]  The complainant expressed concern regarding the impression potentially left on listeners who did not listen to the whole programme. However, broadcasters cannot control when listeners tune in and out, and such issues present themselves in many similar situations. The Authority’s task is to consider the programme as a whole against the standard, in light of which, balance was achieved.

[24]  For the reasons above, we consider RNZ provided a reasonable range of perspectives within the broadcast, and we do not uphold the complaint under the balance standard.

Accuracy

[25]  This standard is concerned only with material inaccuracies. Technical or unimportant points that are unlikely to significantly affect listeners’ understanding of the programme as a whole are not considered material.¹⁷

[26]  The harm that the UFBA is concerned about under this standard is the reference to Mr Smith and Mr Butzbach as shareholders in Tangata Matatau, when they are in fact directors.  

[27]  The focus of these statements was the suggestion of a conflict of interest, or ‘mates investigating mates’, when Mr Smith was responsible for the inquiry into Mr Butzbach. In this context, we do not consider the references to Mr Smith and Mr Butzbach as shareholders rather than directors, or as both shareholders and directors, were material or likely to significantly affect listeners’ understanding of the point being made, or of the programme as a whole.

[28]  Accordingly, we do not uphold the complaint under this standard.

Privacy

[29]  There are typically three criteria for finding a breach of privacy:

• The individuals whose privacy has allegedly been interfered with were identifiable.¹⁸
• The broadcast disclosed private information or material about the individuals, over which they had a reasonable expectation of privacy.¹⁹
• The disclosure would be considered highly offensive to an objective reasonable person.²⁰

Identification

[30]  Mr Smith and Mr Butzbach were named and identified in the broadcast, therefore the first criterion under the standard is satisfied.

Reasonable expectation of privacy

[31]  The next issue is whether the broadcast disclosed information in respect of which Mr Smith and Mr Butzbach had a reasonable expectation of privacy.

[32]  The complaint refers to ‘relentless public accusations’ against Mr Butzbach, and the ‘continued publication of mistruths and inaccuracies’ about Mr Smith, without identifying these mistruths or inaccuracies. In any case, public figures, particularly those exercising public power, generally have lower reasonable expectations of privacy in relation to matters pertaining to their public roles.²¹ Given the accusations against Mr Butzbach and Mr Smith relate exclusively to matters pertaining to their public roles, we consider they did not have a reasonable expectation of privacy in this regard.

[33]  For these reasons, we do not uphold the complaint under this standard.

Fairness

[34]  A consideration of what is fair will depend on the nature of the programme and the context, including the public significance of the broadcast.  We take into account the nature of the individuals (for example, whether they were public figures familiar with the media, as opposed to ordinary persons with no media experience), and whether any critical comments were aimed at them in their professional or personal lives.²²

[35]  If a person or organisation referred to in a broadcast might be adversely affected, they should usually be given a fair and reasonable opportunity to comment for the programme, before the broadcast.²³ What is fair and reasonable will depend on the circumstances.²⁴

[36]  In this case, as above, Mr Smith and Mr Butzbach are the chair and chief executive of a publicly funded entity, and the allegations made against them were aimed at their professional rather than personal lives.

[37]  While the UFBA, and Mr Smith and Mr Butzbach, might have been adversely affected by the content of the broadcast, we note they were given an opportunity to comment, of which they availed themselves, and Mr Smith’s written statement on behalf of the UFBA was read out in full. We also note the UFBA have been invited to be interviewed by RNZ about this matter, but declined the invitation. In the circumstances we consider this was fair and reasonable.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

11 August 2021  

  
Appendix

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

1  UFBA’s formal complaint – 25 February 2021

2  RNZ’s decision on the complaint – 8 April 2021

3  Mr Guthrie’s referral to the Authority – 15 April 2021

4  RNZ’s response to the referral – 11 May 2021

¹ Standard 8 of the Radio Code of Broadcasting Practice
² Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
³ As above
⁴ Standard 9 of the Radio Code of Broadcasting Practice
⁵ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁶ Standard 10 of the Radio Code of Broadcasting Practice
⁷ Standard 11 of the Radio Code of Broadcasting Practice
⁸ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁹ Ministry of Social Development & Peterson and TVWorks Ltd, Decision No. 2011-072, at [148]; Ministry of Social Development and Radio New Zealand Ltd, Decision No. 2017-097 at [7]
¹⁰ Guideline 8a
¹¹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹² As above
¹³ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹⁴ Guideline 8b
¹⁵ Guideline 8c
¹⁶ Clare Sziranyi “Volunteer firefighter association CEO investigated over sexual harassment and bullying complaints” RNZ (online ed, 1 September 2020); Imogen Wells “Head of firefighters' association under investigation over sexual assault, harassment allegations” 1 News (online ed, 1 September 2020); Rachel Thomas “Calls for full inquiry into fire service complaints after high-level allegations come to light” RNZ (online ed, 2 September 2020); Rachel Thomas “Questions raised about independence of investigation into volunteer firefighters' association” RNZ (online ed, 9 September 2020); “Inquiry into Volunteer Fire Fighter Association CEO abandoned” RNZ (online ed, 11 December 2020); Imogen Wells “Complainants disillusioned as investigation into sex assault allegations against fire association head dropped” 1 News (online ed, 11 December 2020); Imogen Wells “Firefighters' association boss reinstated, one month after sexual assault inquiry dropped” 1 News (online ed, 6 January 2021); UFBA (5 January 2021) “Inquiry update” <ufba.org.nz>; UFBA (9 February 2021) “UFBA Board's Statement to RNZ” <ufba.org.nz>
¹⁷ Guideline 9b
¹⁸ Guideline 10a
¹⁹ Guideline 10c
²⁰ Guideline 10b
²¹ Guidance: Privacy (4.1), Broadcasting Standards in New Zealand Codebook, page 62
²² Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
²³ Guideline 11d
²⁴ As above