BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has declined to determine six complaints about various TVNZ broadcasts, under several standards, as the concerns related to the complainant’s personal preferences on what should be broadcast, issues raised had recently been dealt with and did not warrant further determination and/or the standards raised did not relate to the relevant complaint. Two complaints were also trivial.

Decline to determine (section 11(a) of the Broadcasting Act 1989 – trivial; and section 11(b) in all the circumstances the complaint should not be determined): Balance, Accuracy, Fairness, Discrimination and Denigration, Offensive and Disturbing Content

The broadcasts

[1]  Between January and March 2023, the Authority received six separate complaint referrals from Peter Wakeman concerning broadcasts by TVNZ, namely:

• Complaint A: Q+A (broadcast on 20 November 2022) – segment interviewed four candidates running in the Hamilton West by-election. The host noted Te Pāti Māori and the Green Party did not put up any candidate for the by-election and did not refer to any other running candidates.
• Complaint B: 1 News (1 December 2022) – item reported on a recent announcement on new laws to deal with drivers fleeing from police. The announcement was made in Hamilton West, ahead of the by-election in the area. The item included comments from four candidates in the by‑election and concluded with the political reporter (Jessica Mutch McKay) noting that as the Greens were not standing, Labour would have an advantage.
• Complaint C: Wasted (27 April 2022) – a documentary about drug policy and legislation in Aotearoa New Zealand since 1975. The broadcast discussed the treatment of many different drugs, including cannabis, as well as topics such as rehabilitation, drug smuggling and decriminalisation. In one section of the broadcast focused on the 2020 cannabis referendum, the broadcast included comments from various personnel who were opposed to the legalisation of cannabis, including former Prime Minister Robert Muldoon.
• Complaint D: Q+A (4 December 2022) – segment included interview with Finland’s Prime Minister Sanna Marin discussing her views on the Russia / Ukraine war, followed by a discussion about trade between New Zealand and Finland.
• Complaint E: 1 News (1 December 2022) – Item reported on the Ukrainian Government’s hotline for Russian soldiers to surrender, part of the ‘I Want to Live’ project. The correspondent noted callers would be provided with instructions once they surrender (but did not outline the instructions). The host concluded by noting more than 3,500 Russian soldiers as well as families contacted Kyiv officials.
• Complaint F: 1 News (30 January 2023) – Item discussing the recent Kantar Public poll referred to the Aotearoa Legalise Cannabis Party as the ‘Legalise Cannabis Party’, with a graphic showing ‘Cannabis Party’.

The complaints and the broadcaster’s response

[2]  The complainant submitted a substantial amount of material (introducing considerable detail which was peripheral to the core issues) in support of each of his complaints at both the formal complaint stage, and when he referred the complaints to the Authority. The complainant stressed the complaints should be treated together as they involve ‘interlinked information’.

[3]  TVNZ’s response to the referrals noted many of the sources relied upon by the complainant are unreliable, being known for the propagation of misinformation (eg RT News and Telegram).¹

[4]  For the purposes of our decision (which is concerned with whether the relevant broadcasts breached the applicable broadcasting standards) we briefly outline what we consider are the complainant’s key concerns for each complaint, along with TVNZ’s response.

Complaints A and B:

[5]  The complainant considered the broadcasts breached the balance, accuracy and fairness standards as they ‘excluded eight out of the twelve candidates’ running in the by-election, relied on political polls which did not include all candidates, and did not mention these candidates. Regarding the 1 News item, the complainant also considered McKay’s comments to be unscientific and/or unbalanced as the Aotearoa Legalise Cannabis Party was standing with their candidate.

[6]  TVNZ did not uphold the complaints, noting editorial constraints meant the programme could ‘host a limited number of candidates’ and the High Court has acknowledged media ‘have editorial discretion to choose how to run their debates’.² Further, the political poll relied on was conducted in accordance with relevant accepted Codes, and the broadcast advised viewers of its commission (by the ACT party).

[7]  It also considered McKay’s comments were clearly signalled as her opinion or analysis of the issue, which is not subject to the accuracy standard.

Complaint C

[8]  The complainant considered the broadcast breached the balance, accuracy and fairness standards as it was politically ‘imbalanced as there was no mention of the Political Party that has been fighting the subject of legalising cannabis since 1996 (The Aotearoa Legalise Cannabis Party.)’ Further, there was no request for comment from the Aotearoa Legalise Cannabis Party, or any other political party that supported the legalisation of some, or all, drugs in New Zealand.

[9]  TVNZ did not uphold the complaint, finding the broadcast was balanced (having included commentary from different perspectives, even though the Aotearoa Legalise Cannabis Party was not included). TVNZ did not consider the accuracy or fairness standards applied as the complainant did not allege any material point of fact was inaccurate, or that a person or organisation was treated unfairly. 

Complaint D

[10]  The complainant considered the broadcast breached the discrimination and denigration, balance, accuracy and fairness standards as, among other reasons, the host was not ‘substantiating his question that President Putin could not be trusted.’ The complainant also had concerns with how the Ukraine / Russia war was represented, particularly with comments which were contrary with what Russia has publicly stated (eg Russia targeting civilians) and the omission of the roles of US and NATO in the war.

[11]  TVNZ did not uphold the complaint, noting:

• The discrimination and denigration standard did not apply to the Russian Government which instigated the war. Similarly, there was ‘no criticism or negative statement’ made about the Government, resulting in the application of the fairness standard.
• The programme had a narrow focus, being Finland’s Prime Minister’s opinion on events in Ukraine and Russia. Viewers would not have reasonably expected to be presented with significant alternative perspectives, particularly many issues raised by the complainant which were out of scope of the interview (eg Elon Musk’s actions firing executives, US’s and NATO’s role years prior etc).
• The host’s questions to the Finnish Prime Minister were valid and her right to provide her perspective on these issues is protected by the right to freedom of expression (particularly as the statements reflected her analysis, comment or opinion).

Complaint E

[12]  The complainant considered the broadcast breached the discrimination and denigration, balance, accuracy and fairness standards as it was incorrect to state ‘no one knows what happens when the Russians surrender’ given ‘there is video evidence and a number of stories with the atrocities that the Ukrainians allegedly have committed’.

[13]  TVNZ did not consider the broadcast breached any of the nominated standards, noting:

• The discrimination and denigration standard did not apply to the Russian Government which instigated the war. Similarly, there was ‘no criticism or negative statement’ made about the Government, resulting in the application of the fairness standard.
• Information provided by the complainant is from unreliable sources which ‘could not be broadcast without breaching standards in any case.’
• The complainant did not make any ‘allegation that a material point of fact was inaccurate’, instead suggesting the broadcast was misleading by omitting allegations of Ukraine’s treatment of Russian soldiers (relying on ‘questionable at best’ sources).

Complaint F

[14]  The complainant considered the broadcast breached the offensive and disturbing content, balance, accuracy and fairness standards as the reporter did not state the legal name of the Aotearoa Legalise Cannabis Party, noting it was offensive ‘not to be called who you are’ and voters needed correct information to know who to vote for.

[15]  TVNZ did not consider the broadcast breached any of the nominated standards, noting the Aotearoa Legalise Cannabis Party has the recognised abbreviation ‘The Cannabis Party’ (as stated on the Electoral Commission’s | Te Kaitiaki Take Kōwhiri register of political parties).³ TVNZ considered the relevant statements were unlikely to offend or disturb a significant number of viewers.

Outcome: Decline to determine

[16]  Section 11(a) of the Broadcasting Act 1989 authorises the Authority to decline to determine complaints if it considers they are trivial.⁴ A ‘trivial’ complaint is one which is of little or no importance and is at such a level not to justify it being treated as a serious complaint.

[17]  Section 11(b) of the Broadcasting Act 1989 authorises this Authority to decline to determine a complaint if it considers, in all the circumstances of the complaint, it should not be determined by the Authority.⁵

[18]  In the circumstances, under s 11(b) of the Act, the Authority considers it should not determine the complaints:

• As in our previous decision concerning a complaint from Wakeman, we note much of the complaints relate to his personal views as to what information broadcasters should include and who they should be interviewing.⁶ These are matters of personal preference and editorial discretion which do not raise broadcasting standards issues.⁷ TVNZ is entitled to make its own judgement as to relevance and credibility when determining what to broadcast.
• The standards regime reflects the present broadcasting environment in Aotearoa New Zealand and the increased flows of information available from sources, and topics, of all kinds. The Code commentary expressly recognises that balance complaints will rarely be upheld given the proliferation of information available to today’s audiences. However, the balance standard is there to provide protection where balancing viewpoints on controversial issues are not available across time, different programmes or different media.⁸
• Further, the standards regime does not require broadcasters to present news or other content impartially or without bias.⁹ Provided broadcasters do not breach standards, broadcasters are free to promote or challenge particular ideas, philosophies or people.
• The Authority has recently dealt with issues concerning the omission of pro-Russian perspectives,¹⁰ and the issue of choice of interviewees in election debates has been dealt with by the High Court.¹¹ We consider these findings dismiss the majority of the complainant’s concerns.
• A number of the complaints raised standards which had no application to the particular complaint. For example, complaint D alleges breach of the discrimination and denigration standard in connection with comments about the Russian Government and President Putin (who are not protected ‘sections of the community’ for the purposes of the standard). Wakeman also raised the fairness standard in multiple complaints. The purpose of this standard is to protect the dignity and reputation of those featured in programmes. However, Wakeman’s complaints (for example complaints C & E) did not generally relate to any individual or organisation featured in the broadcast but to content not included in the broadcast.
• TVNZ provided substantive responses to each of the complaints. In the context of multiple complaints that have been adequately addressed by the broadcaster, we do not consider the concerns justify revisiting these issues.

[19]  Additionally, we decline to determine two complaints under s 11(a) of the Act:

• Complaint B – to the extent the complaint suggests McKay’s comments were ‘unscientific’, we consider this complaint is trivial as viewers would have understood this reflected McKay’s political comment in her role as the Political Editor (and the accuracy standard does not apply to such comments).¹²
• Complaint F – We consider this complaint to be trivial as viewers would have understand references to the ‘Cannabis Party’, or other abbreviations, were to the Aotearoa Legalise Cannabis Party. Our finding is supported by the Party having the recognised abbreviation: ‘The Cannabis Party’.

[20]  We note the complainant is persistent in his approach to have certain perspectives broadcast. However, the right to freedom of expression means broadcasters have the right to present their particular perspectives without the need to present alternatives (provided the broadcast does not breach standards). These concerns, essentially of personal preference, are not capable of being resolved by a standards regime.

[21]  We would also caution the complainant to consider whether this Authority is best placed to progress these concerns, which are essentially his personal preferences, and note it may be open to the broadcaster to request the Authority make an order against the complainant for reimbursement of reasonable costs incurred in dealing with similar complaints in the future.

For the above reasons the Authority has declined to determine these complaints.
Signed for and on behalf of the Authority

Susie Staley
Chair
30 May 2023    

Appendix

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

1  Peter Wakeman’s formal complaints to TVNZ between December 2022 and January 2023 (7 emails across 6 complaints)

2  TVNZ’s decisions on complaints between December 2022 and March 2023 (6 decisions)

3  Wakeman’s referrals to the Authority, and supporting information, between January and May 2023 (38 emails)

4  TVNZ’s response to referrals – 8 February and 17 March 2023

5  Wakeman’s further information to TVNZ – 26 April 2023, and TVNZ’s response – 27 April 2023

6  TVNZ’s confirmation of no further comments between February and May 2023 (5 emails)

¹ TVNZ criticised various sources Wakeman relied on, including: Telegram was being ‘used by the Russian government to feed pro-Kremlin narratives into cyberspace’ citing Chris Stokel-Walker “Russia’s battle to convince people to join its war is being waged on Telegram” MIT Technology Review (online ed, 24 September 2022); Sputnik is frequently described as a Russian propaganda outlet (see for example Kohei Watanabe “Conspiracist propaganda: How Russia promotes anti-establishment sentiment online?” (paper presented to ECPR General Conference, Hamburg, August 2018); OpIndia frequently publishes misinformation and has published fake news and Islamophobic commentary on multiple occasions (see Kalyani Chadha and Prashanth Bhat “Alternative News Media and Critique of Mainstream Journalism in India: The Case of OpIndia” (2022) 10 Digital Journalism 1283); Scott Ritter was added to the list of pro-Russia propagandists compiled by the Ukrainian Center for Countering Disinformation and is a contributor to RT / Russia Today (see Giulia Carbonaro “Tulsi Gabbard, Rand Paul Placed on List of Russian Propagandists by Ukraine” Newsweek (26 July 2022))
² Citing Ross v Mediaworks Holding Ltd [2020] NZHC 2574 at [49]
³ See Electoral Commission’s | Te Kaitiaki Take Kōwhiri “Register of political parties” <elections.nz>
⁴ Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Guidance: BSA power to decline to determine a complaint” <bsa.govt.nz>
⁵ Guidance: BSA power to decline to determine a complaint, Broadcasting Standards in New Zealand Codebook, page 67
⁶ Wakeman and Television New Zealand Ltd, Decision No. 2022-057 at [19]
⁷ See section 5(c) of the Broadcasting Act 1989, which states that complaints based merely on a complainant’s preferences are not, in general, capable of being resolved by a complaints procedure
⁸ Commentary, Standard 5, Broadcasting Standards in New Zealand Codebook at 15
⁹ Commentary, Standard 5, Broadcasting Standards in New Zealand Codebook at 15
¹⁰ See generally Wakeman and Television New Zealand Ltd, Decision No. 2022-057; and McArthur and Radio New Zealand Ltd, Decision No. 2023-004
¹¹ See Ross v Mediaworks Holding Ltd [2020] NZHC 2574 at [49]–[52] and Crawford and Television New Zealand Ltd, Decision No. 2009-093
¹² Guideline 6.1