BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint a news report on 1News breached several standards, by using the phrase Hamas ‘fighters’, rather than Hamas ‘terrorists’. The Authority found the choice of word could not reasonably be said to encourage the different treatment of Jewish or Israeli people, devalue their reputation, or embed negative stereotypes about them. Under accuracy, the Authority found the word was not inaccurate, was not material in the context of the broadcast as a whole, and there was no harm at a level justifying limitation of the broadcaster’s right to freedom of expression and editorial independence. The balance and fairness standards did not apply.

Not Upheld: Discrimination and Denigration, Accuracy, Balance and Fairness

The broadcast

[1]  The 15 January 2024 episode of 1News included a brief report on the first 100 days of the Israel/Hamas war. The report included comments from two displaced Gazan women, interviews with the family members of two Israeli hostages, and some commentary on the war and the international response. Toward the end of the report, the reporter made the following statement:  

On October 7th, Hamas fighters stormed through the Gaza border and launched an unprecedented attack on Israel. 1200 people were killed. That same day Israel declared war. International alarm is growing over the crisis. The White House today said it's the right time for Israel to scale back its military offensive. But the Prime Minister has vowed to keep fighting in Gaza. 

The complaint

[2]  Neville Waisbrod complained the broadcast breached the discrimination and denigration, accuracy, balance and fairness standards of the Code of Broadcasting Standards in New Zealand on the basis the report referred to Hamas ‘fighters’ rather than Hamas ‘terrorists.’ They added:

• ‘NZ has designated the Military arm of Hamas a terrorist group so these terrorists should be referred to as such.’
• Calling these terrorists "fighters" denigrates the over 1,200 victims who were murdered in the 7th October terrorist massacre in Israel.
• ‘Calling them fighters changes the narrative completely.’

[3]  The complainant also included quotes from what appears to be a similar complaint made to the Canadian Broadcasting Corporation [CBC] in relation to CBC’s use of the word ‘militants’ rather than ‘terrorists’ when discussing Hamas. Those quotes include:

• ‘By not calling it out for what they are, [CBC] are also taking a political position, by not calling [Hamas] TERRORISTS.’
• ‘This whitewashing of the language to describe Hamas and the brutal acts of Oct. 7th, 2023, reduces clarity in favor of political correctness and diminishes rather than enhances journalistic quality…The Hamas massacre and kidnappings fit these definitions of terrorism as a glove fits a hand.’
• ‘Calling Hamas mere "militants" trivialises their true nature and intent, and is an affront to all civilised readers and listeners. It demeans the seriousness and barbarity of Hamas' objectives and its repeated atrocities…The events of October 7th are, like 9/11, indisputably terrorist atrocities. Hamas, which carried them out, is undeniably a terrorist organisation.’
• ‘[CBC has] used the word terrorism multiple times including the Air India bombing but I guess they just refuse to use it when Jews are involved – this has the markings of institutional racism…’

The broadcaster’s response

[4]  TVNZ did not uphold the complaint under each of the nominated standards, advising:

Discrimination and Denigration

• TVNZ did not agree that the broadcast denigrated the people killed or taken hostage, or Israeli people in general; nor could the broadcast reasonably be described as encouraging discrimination against, or the denigration of, a section of the community.
• ‘The viewer hears from the families of people taken hostage in the report and their grief is plain to see.’
• ‘1News has frequently reported the attack as being a “terrorist attack” in comments’ from various people and entities.¹

Accuracy

• ‘“Fighters” is not an incorrect term.’
• ‘1News has referred to the October 7th event as an act of terrorism throughout [its] reporting.² However, in line with other media, such as [the Associated Press] and the BBC, 1News is careful with the use of the term’.³

Balance

• ‘The story contained significant viewpoints on [the conflict], including from Gazan people affected by the conflict, Israeli people calling for the return of their loved ones held hostages by Hamas, the US, and Israeli President Benjamin Netanyahu.’
• ‘Balance does not hinge on a word but on the overall reporting within the period of interest, as well as within the story.’

Fairness

• The complainant did not specify who they considered had been treated unfairly; and TVNZ did not consider the fairness standard applied to Israel or the IDF.⁴

The standards

[5]  We focused our consideration on the discrimination and denigration and accuracy standards as those were most relevant to the substance of the complaint. We deal briefly with the balance and fairness standards below at [17].

• The discrimination and denigration standard⁵ protects against broadcasts which encourage the discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief.
• The purpose of the accuracy standard⁶ is to protect the public from being significantly misinformed.⁷ 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. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

Our analysis

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

[7]  This complaint relates to the choice of word the broadcaster used in connection with the attack by Hamas on Israel on 7 October 2023. The issue for the Authority is to determine whether in this news report, the broadcaster has fulfilled the responsibilities that go with the right to freedom of expression.⁸ In New Zealand we value the right to freedom of expression enshrined in the New Zealand Bill of Rights Act 1990. When we determine a complaint we weigh the value of the programme, and the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused by the broadcast. This could be harm to an individual, or, as alleged in this case, harm to Jewish or Israeli people generally, and in particular, those harmed in the 7 October attack. In this case, we do not consider the broadcaster’s use of the word ‘fighters’ caused harm that could reasonably be argued to outweigh the broadcaster’s right to freedom of expression. We expand on this finding below.

Discrimination and Denigration

[8]  In the Code of Broadcasting Standards in New Zealand, ‘discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community to their detriment, and ‘denigration’ is defined as devaluing the reputation of a particular section of the community.⁹

[9]  The importance of freedom of expression means a high level of condemnation, often with an element of malice or nastiness, will usually be necessary to find a broadcast encouraged discrimination or denigration in breach of the standard.¹⁰ Broadcast content which has the effect of reinforcing or embedding negative stereotypes may also be considered.¹¹ The standard is not intended to prevent the broadcast of material that is factual, or a genuine expression of serious comment, analysis or opinion.¹²

[10]  The complainant alleged the ‘fighters’ description denigrated the victims of the 7 October attack. The complainant’s submissions also suggest the term was discriminatory towards Jewish or Israeli people.

[11]  The discrimination and denigration standard does not apply to groups such as ‘victims of an attack’ (who are defined by a shared experience rather than a shared sex, sexual orientation, race, age, disability, occupational status or religious, cultural or political belief).¹³ However, Jewish and Israeli people do come within the protections of the standard and we have accordingly addressed the complainant’s concerns in relation to these groups.

[12]  While we acknowledge the sensitivity around reporting on the Israel and Hamas war, we do not uphold the complaint under the discrimination and denigration standard for the following reasons:

• Serious comment, analysis and opinion: The broadcast was a genuine expression of serious comment, analysis and opinion.
• Encouraging the different treatment or devaluing the reputation: We do not consider the use of the word ‘fighters’ could reasonably be considered to encourage the different treatment of Jewish or Israeli people to their detriment, or devalue their reputation.
• Malice or negative stereotypes: There was no malice or nastiness in the broadcast, and the use of the word ‘fighters,’ could not reasonably be said to embed negative stereotypes about Jewish or Israeli people.
• Freedom of expression: The broadcaster’s choice of word did not create any harm outweighing its right to freedom of expression.

[13]  For the above reasons we do not uphold this complaint under the discrimination and denigration standard.

Accuracy

[14]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.

[15]  The standard is concerned only with material inaccuracies. Technical or unimportant points that are unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.¹⁴

[16]  The Authority does not consider the broadcaster’s use of the term ‘fighters’ to be a breach of the accuracy standard for the following reasons:

• Not an inaccurate description: The word ‘fighters’ is one of many words that could reasonably be used to describe the attack’s perpetrators. Its focus on their actions (rather than purpose) does not make it incorrect and, in the context of the broadcast, the choice of this word could not reasonably be said to mislead the audience as to the nature of the attack. 
• Not material to the item as a whole: We do not consider this word choice material in the context of the item as a whole.¹⁵ The item focussed on the ongoing war and experiences of those caught up in the conflict – including two displaced Gazan women and the Israeli relatives of two hostages – and viewers would have been primarily concerned with this focus.
• Editorial independence and freedom of expression: The broadcaster has the right to freedom of expression, including the right to use the wording it chooses in its broadcasts (provided the broadcasts do not cause harm at a level requiring our intervention). It is not the Authority’s role to dictate what words broadcasters use.

The remaining standards

[17]  The remaining standards either were not breached or did not apply:

• Balance:¹⁶ the balance standard ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.¹⁷ The complainant’s concern addresses the accuracy of a word choice rather than the broadcast’s wider treatment of an issue in a one-sided manner. The complainant’s concerns are appropriately dealt with above under accuracy, at [14].
• Fairness:¹⁸ the fairness standard requires broadcasters to deal fairly with any ‘person or organisation’ taking part or referred to in any broadcast.¹⁹ The complainant has not specified the person or organisation that he alleges was unfairly treated by the broadcast. However, we have previously found the standard does not apply to nations (such as Israel) and we do not consider the victims of the attack to be an ‘organisation’ for the purpose of the standard.²⁰ This element of the complainant’s concerns is appropriately addressed under discrimination and denigration above at [10] – [13].

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
22 April 2024    

Appendix

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

1  Neville Waisbrod’s formal complaint – 18 January 2024

2  TVNZ’s response to the complaint – 16 February 2024

3  Waisbrod’s referral to the Authority – 21 February 2024

4  TVNZ’s confirmation of no further comment – 4 March 2024

¹ “PM Says Gaza ceasefire call comes with conditions” 1News (online ed, 7 December 2023); “Father describes recognising daughter in video of Hamas attack” 1News (online ed, 20 November 2023); “Mother of missing Israeli ‘very worried’ about son” 1News (online ed, 25 October 2023); Anna Harcourt “New poll shows 60% of Kiwis want Israel-Gaza ceasefire” 1News (online ed, 17 November 2023); “Israel-Gaza conflict: Helen Clark critical of Winston Peters’ call” 1News (online ed, 8 December 2023); Caitlin McGee “How to make sense of what’s going on in Gaza” 1News (online ed, 20 October 2024)
² As noted above at footnote 1, it does so when quoting others.
³ The Associated Press advised their staff against the use of the words “terrorist” and “terrorism” ‘other than in direct quotations or when attributed to authorities’ because the words ‘have become politicized and often are applied inconsistently.’ ‘This particular word is so vague and so loaded that different people will disagree about who is a terrorist and who is not’; The BBC’s guidelines advise that the word ‘terrorist’ can be a ‘barrier rather than an aid to understanding’, and that the BBC ‘should convey to its audience the full consequences of the act by describing what happened’. The BBC guidelines further state that they should use words which specifically describe the perpetrator such as ‘bomber,’ ‘attacker,’ ‘gunman,’ ‘kidnapper,’ ‘insurgent,’ and ‘militant’. “[The BBC] should not adopt other people’s language as our own; our responsibility is to remain objective and report in ways that enable our audience to make their own assessments about who is doing what to whom.”
⁴ Wakeman and Television New Zealand Ltd, Decision No. 2022-057
⁵ Standard 4, Code of Broadcasting Standards in New Zealand
⁶ Standard 6, Code of Broadcasting Standards in New Zealand 
⁷ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand, page 16
⁸ Hall & Large and Television New Zealand Ltd, Decision No. 2018-061
⁹ Guideline 4.1
¹⁰ Guideline 4.2
¹¹ As above
¹² As above
¹³ For similar findings, see O’Sullivan and Television New Zealand Ltd, Decision No. 2022-138; McCracken and Radio New Zealand Ltd, Decision No. 2022-099; and Cycling Action Network and NZME Radio Ltd, Decision No. 2021-092
¹⁴ Guideline 6.2
¹⁵ Guideline 6.2
¹⁶ Standard 5, Code of Broadcasting Standards in New Zealand 
¹⁷ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand, page 14
¹⁸ Standard 8, Code of Broadcasting Standards in New Zealand 
¹⁹ Standard 8, Code of Broadcasting Standards in New Zealand
²⁰ Wakeman and Television New Zealand Ltd, Decision No. 2022-057 at [16]