BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld two complaints that it was inaccurate for a 1News reporter to state ‘[The International Court of Justice] so far has said it's plausible that genocide is happening on the ground in Gaza’. The complainants alleged the court’s ruling only stated Palestinians had plausible rights to be protected from genocide, rather than finding genocide was plausible. The Authority found the nature of the ICJ ruling represented a statement of fact to which the standard applied, but did not consider the statement was materially misleading taking into account the legal technicalities in the ruling and the subsequent clarification, the continued debate around the ICJ’s ‘plausibility’ test, and the context of the item.

Not Upheld: Accuracy

The broadcast

[1]  During the 1 May 2024 broadcast of 1News, an item aired concerning protests about the Israel-Hamas conflict. It began by covering protests at Columbia University in the United States, then discussed a protest at the University of Auckland. The item then included mention of a ruling by the International Court of Justice (ICJ) during the following comments by reporter Corazon Miller:

Look, we did reach out to the New Zealand government today. A spokesman from Winston Peters' office, the Foreign Minister, said New Zealand has repeatedly backed those calls for a ceasefire, and they're expressing serious concerns about what they see happening in Gaza and would like to see a more permanent, long-term solution for peace. But in terms of the word 'genocide' they've said they are being guided by the United Nations, by the International Criminal Court of Justice. It so far has said it's plausible that genocide is happening on the ground in Gaza, has urged Israel to do more to improve the humanitarian situation. But for those gathered here tonight, that's simply not good enough. They say that every minute those politicians spend debating terminology, that's more lives that are being lost.

The complaint

[2]  Todd Vincent and Grant Smith complained the broadcast breached the accuracy standard of the Code of Broadcasting Standards in New Zealand for the following reasons:

Vincent

• ‘Corazon Miller incorrectly stated that the ICJ claimed that it was "plausible" that genocide was being committed in Gaza by Israel. This is not correct. The ICJ president has recently corrected this misunderstanding.’
• ‘It should also be pointed out TVNZ has given their decision regarding this matter saying, that they were quoting the spokesman of Winston Peters. We disagree with this.’

Smith 

• ‘The reporter stated that the International Court of Justice had said that it is plausible that genocide is happening in Gaza. That is not true. …the ICJ former president who delivered the actual ruling [confirmed] that is not what it said.’

[3]  On and after referral of his complaint to the Authority, Smith added:

• The relevant statement was not distinguishable as an opinion from the Foreign Minister’s Office and TVNZ has provided no evidence to support its assertion it was.
• ‘The only remaining defence is that the statement complained of is "not materially different" from what the International Court of Justice said. With respect, that is a matter of opinion and interpretation and should have been clearly flagged as such.’
• ‘If the broadcaster wishes to place an interpretation or meaning on a judgment without repeating the actual words used in the decision, as is the case with respect to the ICJ judgment, it has an obligation to make clear that this is a matter of its opinion or interpretation. It did not do so.’
• If an accurate description of the ruling would have been too long, ‘the appropriate response should have been not to include the sentence at all. The piece would have been perfectly presentable without the statement.’

The broadcaster’s response

[4]  In its initial decision, TVNZ did not uphold the complaint for the following reasons:

• The reporter was quoting the view of the Foreign Minister's office, and the accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.
• ‘Joan Donoghue, the president of the ICJ at the time of the ruling in question, stated that the purpose of the ruling was to declare that South Africa had a right to bring its case against Israel and that Palestinians had "plausible rights to protection from genocide" - rights which were at a real risk of irreparable damage. The judges had stressed they did not need to say for now whether a genocide had occurred but concluded that some of the acts South Africa complained about, if they were proven, could fall under the United Nations' Convention on Genocide.’
• ‘This subsequent clarified meaning of the ICJ interim ruling is not materially different from the meaning of “plausible” genocide in any case. Plausible can simply mean “possible”, and so this is not a misleading interpretation.’

[5]  In response to an enquiry from the Authority, TVNZ subsequently advised there had been a misunderstanding regarding the source of the challenged statement and that it was ‘sourced from the ICJ’ rather than the Foreign Minister’s office. It added:

• A United Nations media release reported the following about the ICJ ruling:¹
  
  (a)  ‘The ICJ found it plausible that Israel’s acts could amount to genocide and issued six provisional measures, ordering Israel to take all measures within its power to prevent genocidal acts, including preventing and punishing incitement to genocide, ensuring aid and services reach Palestinians under siege in Gaza, and preserving evidence of crimes committed in Gaza.’
  (b)  ‘We call on Israel to adhere to the ICJ order. The burden now shifts to Israel, to show that it has effectively eliminated the risk of genocide that the Court found to be plausible. By the time Israel reports to the Court in one month, Palestinians must have access to food, water, healthcare, and safety, that have long been denied to them.’
• This was reported similarly across a range of reputable media outlets at the time.
• The reporter did not have information about the ICJ president’s subsequent clarification of the ruling at the time of the report.

The standard

[6]  The purpose of the accuracy standard² is to protect the public from being significantly misinformed.³ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead.

[7]  The standard is concerned only with material inaccuracies. Technical or other points that are unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.⁴

Our analysis

[8]  We have watched the broadcast and read the correspondence listed in the Appendix.

[9]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression and the value and public interest in the broadcast, against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where the resulting limit on the right to freedom of expression is demonstrably reasonable and justified.⁵

Accuracy

Does the standard apply?

[10]  The first question for the Authority is whether the statement complained about was a statement of fact, or whether it was distinguishable as analysis, comment or opinion, to which the standard does not apply.⁶

[11]  Having initially submitted the relevant statement reflected the opinion of the Foreign Minister’s office, TVNZ later clarified the relevant statement was sourced from the ICJ. Even without the benefit of TVNZ’s later clarification, we consider the statement was likely to be received by viewers as a statement of fact by the reporter (about what the ICJ ‘so far has said’).

[12]  Therefore, the accuracy standard applies.

Was the statement materially misleading?

[13]  The next question for the Authority is whether it was materially misleading to state the ICJ has ‘said it's plausible that genocide is happening on the ground in Gaza’. To ‘mislead’ in the context of the accuracy standard means ‘to give another a wrong idea or impression of the facts’.⁷

[14]  The relevant ICJ ruling⁸ addressed South Africa’s application for ‘provisional measures’ (pending determination of alleged violations under the Convention on the Prevention and Punishment of the Crime of Genocide).

[15]  After considering relevant law and evidence, including United Nations evidence of the situation in Gaza and statements of Israeli officials relevant to the issue of the ‘intent’ required for a genocide finding, the ICJ concluded:

[54]  In the Court’s view, the facts and circumstances mentioned above are sufficient to conclude that at least some of the rights claimed by South Africa and for which it is seeking protection are plausible. This is the case with respect to the right of the Palestinians in Gaza to be protected from acts of genocide and related prohibited acts identified in Article III, and the right of South Africa to seek Israel’s compliance with the latter’s obligations under the Convention.

[74]  …the Court considers that there is urgency, in the sense that there is a real and imminent risk that irreparable prejudice will be caused to the rights found by the Court to be plausible, before it gives its final decision.

[75]  The Court concludes on the basis of the above considerations that the conditions required by its Statute for it to indicate provisional measures are met. It is therefore necessary, pending its final decision, for the Court to indicate certain measures in order to protect the rights claimed by South Africa that the Court has found to be plausible. 

[16]  Following issue of this ruling, it was widely reported as determining there had been ‘plausible genocide’ in Gaza.⁹ On the strength of the ruling, a group of senior judges and lawyers in the UK (including three former Supreme Court justices) called for sanctions against Israel. Faced with claims they had mistakenly interpreted the ruling, they argued it was ‘empty wordplay’ to suggest the ruling was simply a statement about plausible rights.¹⁰

[17]  Retired President of the ICJ, Joan Donoghue, appeared on BBC’s Hardtalk to clarify the nature of the ruling in late-April 2024, just a few days before this 1News broadcast.¹¹ She stated:

You know, I’m glad I have a chance to address that because the court’s test for deciding whether to impose measures uses the idea of plausibility. But the test is the plausibility of the rights that are asserted by the applicant, in this case, South Africa. So the court decided that the Palestinians had a plausible right to be protected from genocide and that South Africa had the right to present that claim in the court. It then looked at the facts as well. But it did not decide, and this is something where I’m correcting what’s often said in the media, it didn’t decide that the claim of genocide was plausible. It did emphasise in the order that there was a risk of irreparable harm to the Palestinian right to be protected from genocide. But the shorthand that often appears which is that “there’s a plausible case of genocide” isn’t what the court decided.

[18]  Despite this clarification, some discussion and debate regarding the meaning of the ICJ’s plausibility test and ruling continues.¹² It appears there is a degree of uncertainty, even at the ICJ level, as to what the ‘plausibility’ test entails.¹³ Noting the ICJ did undertake some factual analysis which seemed to go ‘beyond merely assessing whether the allegations fall within its subject-matter jurisdiction’, it has also been suggested the test could sensibly include ‘some notion of a plausibility of claims/prospect of success approach’.¹⁴

[19]  From this background, it is clear:

• the ruling dealt with complex legal procedural issues
• the nature of ICJ’s plausibility test and ruling were the subject of considerable debate with many – at least before the President’s clarification – describing the ruling in the same way it was described in the broadcast
• the ICJ President’s subsequent clarification has not entirely resolved the debate regarding the meaning of the ICJ’s plausibility test and ruling.

[20]  In the circumstances, we are not satisfied it is materially inaccurate to describe the ICJ as saying it was ‘plausible that genocide is happening’ in Gaza. It is not a definitive statement. On either interpretation, the ICJ’s finding and consequent decision to ‘indicate provisional measures’ was a significant ruling against Israel.¹⁵ Any subtle legal nuance between the two interpretations of the ruling is unlikely to register with the audience. In our view, most audience members would interpret the statement as an indication there was some basis for the genocide claim while being aware it was still to be determined.

[21]  The materiality of any inaccuracy also needs to be considered in the context of the specific broadcast. The broadcast in this case was just over six minutes long. It focused primarily on growing protests in the United States and in New Zealand seeking peace in Gaza. The relevant statement was contained in a brief comment at the end addressing the position of the New Zealand government, the ICJ ruling and some protestors’ perspectives on that.

[22]  In this context, the statement would not have significantly affected viewers’ understanding of the programme. For these reasons, we find the broadcast was not materially misleading.

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

Signed for and on behalf of the Authority

Susie Staley
Chair
14 October 2024    

Appendix

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

1  Todd Vincent's initial complaint to TVNZ - 1 May 2024

2  TVNZ's decision on the complaint - 29 May 2024

3  Vincent's referral to the Authority - 2 June 2024

4  TVNZ confirming no further comments for Vincent - 7 June 2024

5  Grant Smith's initial complaint to TVNZ - 2 May 2024

6  TVNZ's decision on the complaint - 30 May 2024

7  Smith's further correspondence with TVNZ concerning OIA - 1 June-12 June

8  Smith's referral to the Authority - 25 June 2024

9  TVNZ confirming no further comments for Smith - 26 June 2024

10  Smith's further comments after reviewing broadcast - 29 August 2024

11  TVNZ’s further comments - 13 September 2024

12  Smith’s further comments - 26 September 2024

13  TVNZ’s response to Smith’s further comments - 27 September 2024

14  Smith’s final comments – 30 September 2024

¹ United Nations (31 January 2024) “Gaza: ICJ ruling offers hope for protection of civilians enduring apocalyptic conditions, say UN experts” <www.ohchr.org>
² Standard 6, Code of Broadcasting Standards in New Zealand 
³ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand, page 16
⁴ Guideline 6.2
⁵ Introduction, Code of Broadcasting Standards in New Zealand, page 4
⁶ Guideline 6.1
⁷ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [98]
⁸ Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (South Africa v Israel), Order of 26 January 2024, DN: 192-20240126-ORD-01-00-EN
⁹  See, for example, Fatima Al-Kassab “A top U.N. court says Gaza genocide is 'plausible' but does not order cease-fire” NPR (online ed, 26 January 2024); “US judge urges Biden to examine support for ‘plausible genocide’ in Gaza” Al Jazeera (online ed, 1 February 2024); Julian Borger “Israel’s campaign in Gaza ‘plausibly’ amounts to genocide, US court finds” The Guardian (online ed, 1 February 2024); Sara Dehm “Australian universities and the “plausible” genocide in Gaza: What are the legal and ethical risks and responsibilities?” ABC (online ed, updated 27 March 2024)
¹⁰ “Exclusive - former SC justices and Court of Appeal judges rebut UK Lawyers for Israel critique” The Law Society Gazette UK (online ed. 10 April 2024)
¹¹ “Former head of ICJ explains ruling on genocide case against Israel brought by S Africa” BBC (online ed, 27 April 2024)
¹² “Implausible Confusion: The Meaning of “Plausibility” in the ICJ’s Provisional Measures” EJIL: Talk! (online ed, 6 May 2024); Marko Milanovic “A Thought Experiment on Plausibility and ICJ Provisional Measures” EJIL: Talk! (online ed, 7 May 2024); Dominic Casciani “What did ICJ ruling mean in South Africa's genocide case against Israel?” BBC News (online ed, 17 May 2024); “Norman Finkelstein says ex-ICJ president lying about Israel genocide allegations” Alarabiya News (online ed, 29 May 2024); Kusha Grover “Reinventing an 'Unfortunate Invention' - Streamlining the ICJ's Issuance of Provisional Measures” Volkerrechtsblog International Law & International Legal Thought (online ed, 6 June 2024)
¹³ International Court of Justice (26 January 2024) “Declaration of Judge Nolte” (South Africa v Israel), at [10] <www.icj-cij.org>; Jus Mundi (23 January 2020) “Declaration of Judge ad hoc Kress” (Gambia v Myanmar), at [2] <www.jusmundi.com.org>; International Court of Justice (23 July 2018) “Separate Opinion of Judge Cancado Trindade” (Qatar v. United Arab Emirates), at [57] and [59] www.ocj-cij.org; Kusha Grover “Reinventing an 'Unfortunate Invention' - Streamlining the ICJ's Issuance of Provisional Measures” Volkerrechtsblog International Law & International Legal Thought (online ed, 6 June 2024)
¹⁴ Marko Milanovic “A Thought Experiment on Plausibility and ICJ Provisional Measures” EJIL: Talk! (online ed, 7 May 2024)
¹⁵ The United Nations described it as a ‘landmark ruling’ offering ‘the first concrete hope to protect civilians in Gaza enduring apocalyptic humanitarian conditions, destruction, mass killing, wounding and irreparable trauma’. See United Nations (31 January 2024) “Gaza: ICJ ruling offers hope for protection of civilians enduring apocalyptic conditions, say UN experts” <www.ohchr.org>