BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has upheld an accuracy complaint about RNZ news bulletins broadcast on 19 and 20 April 2022 reporting on the Government’s apparent delay in ending the MIQ system, despite recently released public health advice from November 2021 noting that a changed risk assessment meant MIQ would no longer be justified. The Authority found the items were misleading by omission as they gave a strong impression the advice stated MIQ should be wound up immediately (rather than through a ‘carefully managed transition’ to safely shift to a new system), and the Government had acted contrary to that advice. The Authority did not uphold the complaint under the balance standard. While finely balanced, noting the standard allows balance to be achieved over time, the Authority found RNZ’s later coverage (particularly on 20 April) adequately conveyed the Government’s perspective.

Upheld: Accuracy.
Not Upheld: Balance
Order: Section 13(1)(a) broadcast statement

Background

[1]  On 14 April 2022, the Ministry of Health | Manatū Hauora (MOH), released a memorandum of advice entitled ‘Updated Public Health Risk Assessment for international arrivals transmitting COVID-19’ under the Official Information Act 1982 (OIA).

[2]  The memo, dated 12 November 2021, was from Director of Public Health Dr Caroline McElnay to MOH Director General Dr Ashley Bloomfield, seeking agreement to an updated Public Health Risk Assessment (PHRA). The PHRA determined the risk posed by international arrivals transmitting COVID‑19 was no longer higher than the domestic transmission risk. It noted the effect of the updated PHRA would be that MIQ would no longer be justified on public health grounds as the ‘default’ for people travelling to New Zealand, as a period of home isolation would be considered a more proportionate measure.

[3]  The memo noted:

The implications of the PHRA are that we need to shift from managing international arrivals predominantly in Managed Isolation, to predominantly through self-isolation in the community. To do this safely, there will need to be a carefully managed transition from one system to another, noting that any transitional plan will need to be developed in line with our legislative responsibilities under the NZBORA. This will impact the timeframes in which that transition can lawfully be made.

…

Despite the assessment now indicating a lower level of public health risk generally, we are mindful that any transition will need to be carefully managed to reduce potential impacts on the communities and the health system resulting from the risks of changing from one system to another too quickly.

[4]  The memo outlined several policy and implementation considerations that would need to be worked through before MIQ should be lifted, including:

• mitigations to address residual public health risks
• the updated PHRA’s relationship with other work programmes, including the Traveller Health Declaration System, COVID-19 Vaccine Certification, and health system preparedness
• new variants and testing requirements (the international situation, including any reports of new variants emerging, would continue to be monitored)
• further modelling to ascertain the level to which the increase in the number of cases ‘imported’ would present a public health concern.

[5]  The memo recommended Dr Bloomfield:

• agree to a revised PHRA that the risk posed by international arrivals transmitting COVID-19 was no longer higher than the domestic transmission risk of COVID-19
• note the effect of the revised PHRA was that MIQ for all international arrivals may no longer be justified on public health grounds as self‑isolation was now considered a more proportionate management measure for most arrivals
• note the policy and implementation issues that would need to be considered because of the revised PHRA
• agree to brief the COVID-19 Response Minister on the revised PHRA; and
• agree that MOH work with relevant agencies to develop a plan for the safe transition to self-isolation as the default setting for international returnees, for Cabinet consideration.

[6]  Dr Bloomfield’s and Dr McElnay’s signatures agreeing to the memo’s recommendations, including the updated PHRA, were dated 15 November 2021.

The broadcasts

[7]  Having received the memo under the OIA, on 19 and 20 April 2022 RNZ published stories on its website, and broadcast numerous stories in news bulletins, Morning Report, and Checkpoint on RNZ National, reporting on the Government’s apparent delay in ending the MIQ system despite public health advice noting that a changed risk assessment meant MIQ would no longer be justified.

[8]  Associate Professor Hanna Wilberg’s original complaint to RNZ identified on‑air news bulletins of 19 and 20 April as well as Morning Report on 20 April, as being of concern. Her referral to the Authority was more limited, concerning RNZ ‘news bulletins in the evening of 19 April and morning of 20 April 2022’ reporting on this story, as well as the 1pm bulletin of 20 April. Given this, we have included the bulletins that ran between 4pm on 19 April and 1pm on 20 April 2022 in our consideration of this complaint.

[9]  The essence of the bulletins overall was that health officials had agreed MIQ was no longer justified on public health grounds in November 2021, ‘but it took another three and a half months, and seven rounds of the room release lottery until the system was wound up.’

[10]  The first of the bulletins we have considered, broadcast at 4pm on 19 April, stated (in its entirety):

Top health officials agreed last November that managed isolation was no longer justified for most returnees, but it took 15 weeks and nearly 40,000 MIQ stays before most incoming travellers could enter freely. A memo released today shows the Director of Public Health Caroline McElnay wrote to the Director General of Health, Ashley Bloomfield with an updated risk assessment of international arrivals. She notes they didn’t pose a higher risk of transmitting COVID-19 than people in the community, and that MIQ would no longer be justified on public health grounds as the default option for returnees.

[11]  The majority of the subsequent bulletins contained comment that was strongly critical of the Government’s approach in continuing with MIQ notwithstanding the advice in the memo (as reported above). This included:

• University of Waikato Law Professor, Al Gillespie: ‘You’ve had people who’ve had their liberty interrupted by them being in MIQ, you’ve had people who’ve paid thousands of dollars for being in MIQ and you’ve had those who haven’t been able to access MIQ.’
• Neil Protheroe, who was ‘stuck in France at that time’: ‘To learn that actually this was all, let’s be kind and say not entirely necessary, adds insult to injury, it adds salt in the wound of those people who have been really badly treated, in some cases traumatised by the whole thing.’
• Martin Newell from Grounded Kiwis: ‘If you were sitting in that MIQ lottery in November last year, trying to get home, and you read this news today, that oh actually Dr Bloomfield and McElnay thought that it was fine for overseas arrivals to come into New Zealand and not increase the risk, then you would be pretty devastated.’
• ‘Martin Newell from Grounded Kiwis says today’s revelation confirms what his group was saying back then. He told Checkpoint the evidence shows the Government wasn’t following the best public health advice at the time, and the question has to be asked; why did it wait so long to re-open the border?’
• ‘Richard Lemare says that people who stayed in MIQ from November should be paid back, and those who suffered emotionally should receive a meaningful apology: The lottery came in and that was just shocking. As they described it themselves, it was a lolly scramble. And when I say inequity the most important thing was the lack of compassion.’
• ‘Tepene Marsden shifted his wedding date to accommodate MIQ spots for relatives from Canada, and says the thought that his stressful experience was avoidable is infuriating: Yeah it makes me very frustrated, it’s incredibly frustrating to know that we didn’t have to be on edge – well also during a pandemic and all sorts.’
• ‘The journalist Charlotte Bellis who was stranded in Afghanistan while pregnant in January, says many women were hurt by the managed isolation system, which wasn’t fit for purpose. …She says MIQ was painful and gruelling for a lot of vulnerable women, and the Government should acknowledge the sacrifice they made: Just to say, you know, we appreciate the sacrifice that you made, and that, you know, that you did do this to protect other New Zealanders and you know, we’re incredibly grateful for it and we’re sorry that it took so long to find a way to get you back in the country.’

[12]  Brief statements acknowledging the Government’s perspective on the matter were included at the end of the 5pm, 10pm, 12am, 4am, 6am, 7am, 7.30am and 8am bulletins:

• The 5pm and 10pm bulletins included comment from COVID-19 Response Minister Chris Hipkins that ‘officials were advised there should be a considered transition to self-isolation, and that’s what happened.’
• The 12am bulletin included comment from Hipkins that the 12 November memo was not the final advice on the topic.
• The remaining bulletins (4am, 6am, 7am, 7.30am, 8am on 20 April 2022) stated MOH said the removal of MIQ requirements was delayed by the Omicron outbreak.

[13]  The bulletins of 5am, 6am, 6.30am and 1pm on 20 April 2022 focused on the National Party’s perspective on the matter, reporting ‘The National Party says revelations MIQ could have ended sooner shows the Government was not following public health advice.’ These bulletins included comment from National Party COVID-19 Response spokesperson Chris Bishop, who said the delay meant thousands more New Zealanders could have freely travelled home sooner, and the revelations confirmed a need for a Royal Commission of Inquiry into the Government’s response to COVID-19.

[14]  The bulletins at 8.30am, 9am, 10am, and 11am on 20 April 2022, gave more airtime to the Government’s perspective. The bulletin at 8.30am stated:

The Acting Prime Minister says Omicron held up an end to MIQ recommended last year. The Government’s facing heavy criticism for waiting until February to ditch the hotel isolation, even though Dr Caroline McElnay and Dr Ashley Bloomfield told the Government from November last year it was no longer justified.

Grant Robertson says the Government held back when the new variant spread wildly overseas. He says a delayed end to MIQ bought time to lift vaccination rates.

[15]  The 9am bulletin stated:

The Acting Prime Minister says the arrival of the Omicron variant delayed an end to managed isolation. The Government’s facing criticism for waiting until February to ditch the hotel isolation, even though health officials told the Government it was no longer justified in November last year. Grant Robertson says the Government held back on a change when the new variant spread wildly overseas:

(Robertson) We had to delay those plans through until February, and so actually, this is the system working how it’s meant. Officials developed this advice, got it peer-reviewed, we came up with a plan, we implemented that plan and MIQ did eventually get removed.

Mr Robertson says a delayed end to managed isolation bought time to lift vaccination rates.

[16]  The 10am bulletin stated:

The Acting Prime Minister says the Government’s not considering compensation for MIQ returnees since November. The Government’s facing heavy criticism for waiting until February to ditch the hotel isolation, even though Dr Caroline McElnay and Dr Ashley Bloomfield advised from last November it was no longer justified.

Grant Robertson says the Government kept MIQ when the new variant suddenly spread overseas. He says he understands returnees’ frustration, but MIQ was lifesaving.

[17]  The 11am bulletin focused on the perspective of leading epidemiologist Professor Michael Baker, who stated:

Unlike much of the world, we were spared having this really intense Omicron wave over the Christmas/New Year period. I think we all benefitted from that, and as a result I think the overall impact of this Omicron wave has been much less in New Zealand than it would have been.’ 

The complaint

[18]  Wilberg complained the news bulletins breached the accuracy and balance standards, saying:

• The essence of the stories was that top public health officials had on 12 November 2021 signed off advice that MIQ was no longer justified, yet there was a delay of over three months before MIQ was finally abolished in March, resulting in 40,000 Kiwis being wrongly subjected to MIQ. This was not accurate or balanced.
• It was inaccurate for the stories to have claimed the Government had continued MIQ for three months during which there was no public health justification, given the memo recommended a carefully managed and staged transition away from MIQ, and Omicron was first identified by WHO as a variant of concern around the end of November.
• The stories lacked balance as they ‘criticised government decisions on continuing MIQ, while giving no or very little space to a very cogent explanation that had been provided by government.’
• The Government had provided a statement by way of explanation, which had been reported by RNZ in an online article at 5.56pm on 19 April,¹ and by Minister Grant Robertson on Morning Report at 7.50am on 20 April.² ‘Yet RNZ continued to report that there was a three-month delay, without any reference to the reasons, stating or implying that for those entire three months MIQ was unjustified…’
• ‘Many of the news bulletins made no reference at all to any explanation for the delay in opening up.’
• ‘I suggest accuracy and balance in the reporting of this story was of special importance precisely because so many people had to make huge sacrifices due to MIQ. They deserved not to be misled about the basis for the relevant decisions. They may disagree with the judgments government made, and many of them probably will disagree. But they should know that there was a genuine and honest balance being struck.’
• ‘RNZ claims that the gaps in its stories were due to government’s failure to provide the relevant information. I agree that MoH must be criticised for failing to include the other relevant memo in its OIA response. However, RNZ did have the relevant information about the subsequent appearance of Omicron and its relevance.’

The broadcaster’s response

[19]  RNZ did not uphold Wilberg’s complaint, however focused its response predominantly on written articles published on its website rather than the broadcasts referred to. Wilberg had submitted her complaint via RNZ’s online complaints form for written content, so RNZ considered the complaint only in relation to the written articles.

[20]  When Wilberg referred her complaint to the Authority, RNZ argued the Authority did not have jurisdiction to consider the complaint, as the original complaint did not amount to a formal complaint under the Broadcasting Act 1989. The Authority issued an interlocutory decision on this point, finding the original complaint constituted a ‘formal complaint’ for the purposes of the Broadcasting Act, and accepting jurisdiction to consider it.³

[21]  On the substance of the complaint, in its initial response to Wilberg, RNZ stated:

• ‘It was clear from the range of coverage provided by RNZ that the MoH recognised in November 2021 that MIQ could no longer be justified and were on the face of it breaking the law, that the MoH did not recommend an immediate cessation of MIQ facilities but did recommend that a transition to self-isolation as the "default" mechanism required management and some coordination with other ministries. RNZ has not denied that, indeed we reported that, but also pointed out that in the time it took from the receipt of the initial advice that the imposition of MIQ facilities was on the face of it ultra vires of the Public Health Response Act, that up to a further 40,000 MIQ stays had occurred, seven voucher lotteries had been conducted and some 14 weeks had elapsed.’
• ‘RNZ observes that while the spread of Omicron was cited as a reason to delay the cessation of MIQ facilities, there is no published record of the MoH conducting a fresh Public Health Risk Assessment to indicate that continued operation of MIQ could be justified as a proportionate response under the Public Health Response Act.’
• ‘It is entirely legitimate to include the comments and opinions of those affected by a government policy when reporting [on] a government policy.’
• ‘The coverage of the story which broke on April 19 followed that of the classic news cycle of a significant story... Once reaction had been received from the New Zealand government via statements from Covid‑19 Response Minister Chris Hipkins, that material was covered on April 19 and statements from the acting Prime Minister Grant Robertson were covered the following day.’
• ‘RNZ was somewhat blindsided as the further advice to the Minister Chris Hipkins on 22 November was not included in the OIA release, when the MoH had been asked to provide "…any correspondence between the Ministry of Health and the Prime Minister's Office and the office of Chris Hipkins that discusses allowing international arrivals to return to self-isolate in the community prior to Christmas". Had RNZ had the benefit of receiving a copy of the November 22 advice to the Minister then that further information could have been included in the articles but that information was not supplied.’
• ‘None of this amounts to a breach of the balance standard which calls for a range of perspectives to be reported over the period of current interest in a topic, and there is nothing which RNZ has reported which was inaccurate.’

[22]  RNZ did not provide any further comments on the issues raised in the complaint following the referral.

The standards

[23]  The accuracy standard states broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead.⁴ Its purpose is to protect the public from being significantly misinformed.⁵

[24]  The balance standard⁶ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.⁷ The standard only applies to news, current affairs and factual programmes which discuss a controversial issue of public importance.⁸

Our analysis

[25]  We have listened to the broadcasts and read the correspondence listed in the Appendix.

[26]  Our starting point when we look at any complaint is to consider the important right to freedom of expression, which includes both the broadcaster’s right to offer information and the audience’s right to receive it. Our task is to weigh the right to freedom of expression, and the value and public interest in the broadcasts, against any harm potentially caused. We may only intervene and uphold a complaint as a breach of standards where the resulting limit on the right to freedom of expression is reasonable and justified in a free and democratic society.⁹

[27]  Broadcasts which scrutinise or which are critical of the actions of the Government are a vital component of freedom of expression. The media has a significant role to play in keeping the public informed and holding our Government to account.

[28]  The broadcasts subject to this complaint carried high public interest. They reported on a recently released memo concerning an updated PHRA in relation to the MIQ system while it was operating, and raised the issue of whether MIQ should have ceased operating sooner than it did. MIQ had been a matter of much contention during its operation as it was a measure implemented by the Government during the COVID-19 pandemic to protect Aotearoa New Zealand’s borders from the virus, which made it difficult for New Zealanders overseas to return home. As highlighted in the broadcasts, this was a highly emotional matter for many New Zealanders whose family members, or they themselves, were unable to return home for occasions like Christmas, weddings or to see sick family members. It had also been subject to claims that it breached the New Zealand Bill of Rights Act 1990.¹⁰

[29]  In these circumstances and given the very high level of public interest, ensuring accuracy and balance in the reporting of this story was particularly important.

[30]  With this in mind, we concluded the broadcaster did not make reasonable efforts to ensure the coverage accurately presented the full picture. Having regard to the 12 November 2021 memo the coverage was, in our view, misleading by omission. The items gave a strong message the Government had ignored public health advice to discontinue MIQ immediately and delayed it another three to four months, without adequate acknowledgement that the memo made clear recommendations regarding a ‘carefully managed transition’, or (to a lesser extent) the impact of the Omicron variant.

[31]  As a result, we consider there was a real risk that New Zealanders could be misled about matters of public importance through the exclusion of important contextual information, and therefore a restriction on freedom of expression is justified in this case.

[32]  In relation to the balance standard, while finely balanced, ultimately we found the items met the requirements of the standard by adequately including the Government’s response/perspective on the matter within the period of current interest, particularly on the morning of 20 April 2022.

[33]  We expand on our reasons below.

Accuracy

[34]  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 the programme was accurate and did not mislead. This means a programme may be inaccurate or misleading, but nevertheless may not breach the standard, if the broadcaster took reasonable steps to ensure accuracy.¹¹

Were the bulletins inaccurate or misleading?

[35]  The complainant states it was inaccurate for the bulletins to have said the Government had continued MIQ for three months during which there was no public health justification.

[36]  Under the standard, the audience may be misinformed in two ways: by incorrect statements of fact within the programme; and/or by being misled by the programme. Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’¹² Programmes may be misleading by omission, or as a result of the way dialogue and images have been edited together.

[37]  The bulletins all reported, in reliance on the memo of 12 November 2021, that top health officials had agreed MIQ was no longer justified on public health grounds in November 2021. All bulletins (except for 1pm on 20 April 2022) noted that, despite this, the system was not abandoned until almost four months later, or some variation of this assertion. The fact of the delay was not in itself inaccurate. However, the overall – in our view, strong – impression given by the bulletins was that the memo had advised MIQ should be wound up immediately, and the Government had acted contrary to that advice.

[38]  We consider this was misleading and ignored important contextual information. While public health officials had determined MIQ was no longer justified on public health grounds, the memo did not recommend an immediate end to MIQ. Instead, it recommended a ‘carefully managed transition’ to safely shift away from MIQ, and outlined the numerous policy and implementation issues that would need to be considered before MIQ was lifted. It was very clear from the memo there was a process that needed to be followed and that it would take some time (as described in paras [3]–[5] of this decision). However, none of the bulletins included any qualification to the assertion that top health officials had agreed MIQ was no longer necessary on public health grounds in November 2021.

[39]  The memo also stated any emerging new variants would continue to be monitored. We note the Omicron variant, identified as a variant of concern by the World Health Organisation on 26 November 2021,¹³ arrived in New Zealand soon after, impacting the Government’s original plans to cease MIQ.¹⁴

[40]  Any mention of the Government’s perspective in the bulletins did not, in our view, serve to correct the misleading impression created of the memo’s content. The 5pm and 10pm broadcasts included brief comment from the COVID-19 Response Minister that officials were advised there should be a considered transition to self-isolation, but no qualifying statements were included to indicate the 12 November memo itself recommended a staged transition, and that numerous policy and implementation issues needed to be worked through, and considered by the Minister and Cabinet, before lifting MIQ. The broadcasts continued to portray Dr McElnay’s advice as recommending an immediate end to MIQ.

[41]  The impression was reinforced by the significant airtime given to commentators criticising the Government following the release of the memo, including the National Party, and individuals who felt wronged by MIQ continuing after the memo was considered and signed. This commentary further gave the impression the advice was that MIQ should have been wound up immediately and did not acknowledge the advice was qualified to allow for a safe transition. We are not suggesting the reports should not have included commentators criticising the Government's actions or speaking negatively about the MIQ system, but that in this context their comments added to the overall inaccurate representation of advice contained in the original memo.

[42]  For the above reasons, we consider the broadcasts did not accurately convey the full picture of the content of the memo, and in our view this was likely to significantly affect listeners’ understanding of the facts being reported on.

Did the broadcaster make reasonable efforts to ensure accuracy?

[43]  Having found the bulletins were misleading, the next question is whether, despite this, the broadcaster made reasonable efforts to ensure accuracy.

[44]  The assessment of whether the broadcaster has made reasonable efforts to ensure accuracy includes consideration of the following factors particularly relevant to this case:

• the source of material broadcast¹⁵
• the extent to which the issue of accuracy was reasonably capable of being determined by the broadcaster¹⁶
• whether the broadcaster sought and/or presented comment, clarification or input from any relevant person or organisation¹⁷
• the effect of any subsequent or follow-up coverage (eg where information has been updated or corrected as part of a developing story; or there is a delay between the time of broadcast and when the content has been accessed).¹⁸

[45]  RNZ had a full copy of the 12 November memo, on which its reports were based, available before its reporting on this story. Given this, we were not persuaded it was a ‘developing story’ where the factual basis for the story was coming to light over the relevant time period. While comment from the Government in response may have come later, the qualified nature of the advice should have been apparent to RNZ from the outset. We therefore do not consider the brief references to the Government’s perspective in a small number of the later bulletins had the effect of clarifying the misleading impression, as they did not give any indication the original advice in the memo was heavily qualified.

[46]  While RNZ also noted MOH did not provide it with a further memo of advice to Minister Hipkins dated 22 November 2021, which was within the scope of its OIA request, we do not consider this to be relevant to the complaint. Regardless of the content of the later memo, RNZ was reporting on the content of the 12 November memo, and we have found this was inaccurately portrayed. 

[47]  Limited other RNZ coverage of this story, including an article posted at 5.56pm on 19 April on its website,¹⁹ and a 10-minute interview with the Acting Prime Minister Grant Robertson on Morning Report at 7.50am on 20 April 2022,²⁰ did include comment from Government representatives to the effect that the advice was qualified (particularly through Robertson’s interview). However, RNZ continued to report in its bulletins up to 1pm on 20 April that the memo had advised MIQ was ‘no longer justified’ with no qualifications.

[48]  For these reasons, we concluded the broadcaster did not make reasonable efforts to ensure accuracy, and we find the broadcasts breached the accuracy standard.

Balance

[49]  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.²¹

[50]  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. A controversial issue will be one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.²²

[51]  Considering the bulletins as a whole, we found they did amount to a discussion of a controversial issue of public importance. The subject matter of the bulletins was clearly a controversial issue of public importance, given the contention around when MIQ should have been discontinued and the significance the system had for New Zealanders during the COVID-19 pandemic. While separately they were brief news bulletins, we consider that cumulatively they amounted to a ‘discussion’ for the purposes of the standard, as they offered multiple perspectives on the issue from third parties (albeit most of them being from a similar position).²³

[52]  The complainant considered the stories lacked balance as they ‘criticised government decisions on continuing MIQ, while giving no or very little space to a very cogent explanation that had been provided by government.’ She noted many of the news bulletins made no reference at all to any explanation for the delay in opening up.

[53]  The purpose of the balance standard is to ensure competing viewpoints about significant issues are presented, to enable the audience to arrive at an informed and reasoned opinion.²⁴ The standard does not require equal time to be given to each significant viewpoint on a controversial issue of public importance. Broadcasters should, however, give a fair voice to alternative significant viewpoints, considering the nature of the issue and coverage of that issue.

[54]  We acknowledge the complainant’s concerns under this standard. The airtime given to the Government’s perspective on the issue was significantly less than that given to those who felt wronged by MIQ continuing, and the National Party. This compounded the inaccurate impression created by the broadcasts, through RNZ’s failure to accurately convey the full picture of the content of the memo. For these reasons, we gave serious consideration to upholding this complaint under the balance standard.

[55]  Ultimately however, we were of the view that the key issue with these bulletins was the inaccuracy of the reporting, omitting important factual information from the memo, rather than failing to include a significant perspective.²⁵ In other words, if the full picture of the content of the memo had been conveyed in the first place, there would be far less cause to question whether the balance standard was breached.

[56]  The balance standard allows for balance to be achieved over time, within the period of current interest.²⁶ While the Government’s perspective was sometimes included only briefly or not at all in certain broadcasts, it was mentioned in 11 out of the 22 bulletins, and its perspective was a focus of the 8.30am, 9am and 10am bulletins of 20 April. The 11am bulletin focused on the perspective of epidemiologist Professor Michael Baker who was supportive of the Government’s position. RNZ’s article of 5.56pm on 19 April,²⁷ and its interview with the Acting Prime Minister Grant Robertson on Morning Report on 20 April,²⁸ also discussed the Government’s perspective in more detail.

[57]  In our view, these bulletins, along with RNZ’s other coverage on this subject, meant the requirements of the balance standard were met, albeit marginally. In addition, we note reporting by other media outlets focused more on the Government’s perspective.²⁹

[58]  Accordingly, notwithstanding our finding the broadcasts conveyed a misleading impression of the facts, we consider RNZ met the requirements of the balance standard and we do not uphold this part of the complaint.

For the above reasons the Authority upholds the complaint that broadcasts by Radio New Zealand Ltd on 19 and 20 April 2022 breached Standard 9 (Accuracy) of the Radio Code of Broadcasting Practice.

[59]  Having upheld the complaint under the accuracy standard, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on our provisional decision and appropriate orders from the complainant and the broadcaster.

Submissions on provisional decision

[60]  On the Authority’s findings, RNZ submitted:

• It was concerned the decision did not reflect that there was also high public interest in highlighting that the updated PHRA meant the Government was acting outside the bounds of the COVID-19 Public Health Response Act 2020, ie acting illegally (specifically at paragraph [28] where the Authority outlines the public interest in the broadcasts). It noted ‘From the RNZ’s audience’s perspective, the only reason the MoH considered the ongoing operation of MIQ facilities was because they could no longer be justified by the MoH itself.’
• In the discussion on whether RNZ made ‘reasonable efforts’ to ensure accuracy, the Authority should have given more prominence to the fact that MoH did not release the further memo of 22 November 2021 to RNZ at the same time as the 12 November 2021 memo.

[61]  The complainant did not make any further submissions on the provisional decision, noting she found it ‘accurate and appropriate’. In response to RNZ’s submissions, she submitted that the 12 November 2021 memo did not state MIQ was illegal at that point, and a High Court case had subsequently determined that MIQ was justified and lawful at the relevant time (the one exception being the lottery system for allocating places).³⁰

Authority’s response to submissions

[62]  After considering RNZ’s submissions, we were not persuaded any changes to our decision were necessary.

[63]  The 12 November 2021 memo asked officials to note that ‘the effect of the revised Public Health Risk Assessment is that Managed Isolation for all international arrivals may no longer be justified on public health grounds as self-isolation is now considered a more proportionate management measure for most arrivals’ [our emphasis]. It did not state the Government was acting illegally. Therefore we consider the description of the public interest in the broadcasts as set out in the decision at paragraph [28] is sufficient and fairly reflects the circumstances.

[64]  We deliberately did not give prominence to MoH’s further memo of 22 November 2021 as we did not consider it to be of relevance to the complaint, since the broadcasts were based on information available in the 12 November memo. This is addressed at paragraph [46] above.

Submissions on orders

[65]  RNZ submitted that publication of the decision would be sufficient penalty as:

• Only one aspect of the accuracy complaint was upheld in the decision, and the balance aspect was not upheld.
• ‘Further, the complaint itself addresses matters which now occurred some 16 months ago and New Zealand has moved on a great distance from the strictures that were in place at that time around travellers arriving in, and Kiwis returning to, New Zealand.’
• Responding to the complainant’s suggestion RNZ was largely responsible for that time lapse (last point below): RNZ is not responsible for the time it takes for the Authority to process submissions, particularly given ‘issues of double jeopardy whereby a publisher faces two sets of regulatory action for the one issue’ which the publisher does not take lightly. It is ‘reasonable that these issues be raised, considered and dealt with in a proper manner’.
• ‘…any uphold of a complaint by the BSA has a considerable chilling effect on our news activity and editorial decision-making processes…’

[66]  The complainant submitted:

• an appropriate order would be a broadcast statement correcting the broadcasts, and:
  …the order should require the correction to be broadcast at a similar time and with similar prominence to the original broadcast. That is to say, it should be broadcast as part of a series of news bulletins on two weekdays from 4pm one day through to 12 noon the next day, and it should be one of the first items in those bulletins.
• The accuracy complaint was upheld in its entirety, not only on one aspect.
• A ‘large part of that time lag [16 months since the broadcasts] is due to RNZ’s decision to challenge the BSA’s jurisdiction to determine this complaint.’

Authority’s decision on orders

[67]   In determining whether orders are warranted and the type of order to impose, we consider the following factors:

• the seriousness of the breach and the number of upheld aspects of the complaint
• the degree of harm caused to any individual, or the audience generally
• the objectives of the upheld standard
• the attitude and actions of the broadcaster in relation to the complaint (eg whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated the breach and any harm caused)
• whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
• past decisions and/or orders in similar cases.

[68]  We consider the following aggravating and mitigating factors are relevant in this case:

Aggravating factors

• The overarching thrust of the bulletins was misleading, even despite intervening RNZ coverage which included comment from Government representatives to the effect that the advice was qualified, as referred to above at paragraph [47].
• There was a high level of public interest in matters concerning MIQ at the time, and a level of controversy, meaning it was important for reporting on the subject to be accurate.
• There is also a strong public interest in accurate information around political matters generally, given its importance to a functioning democracy.
• RNZ was in a position to easily discern the true position as it had a copy of the relevant memo it was reporting on and interviewed relevant officials who provided some of this detail.
• The broadcaster initially argued the Authority did not have jurisdiction to consider this complaint on the basis it was made through its complaints form for online written content.³¹ We found the original complaint did constitute a ‘formal complaint’ for the purposes of the Broadcasting Act, and accepted jurisdiction to consider it, noting that the complaints process is intended to be an accessible one, not impacted by undue formality.

Mitigating factors

• We have no evidence the story resulted in significant ongoing reputational damage to the Government – the subject matter of the reporting is now somewhat historic, and matters have moved on, with MIQ no longer in operation.
• The complaint under the balance standard was not upheld.
• RNZ has not objected to our overall decision to uphold the complaint under the accuracy standard.
• In the past five years, RNZ has only had three complaints upheld under the accuracy standard.

[69]  Weighing these factors, while we do not have evidence of any significant ongoing harm as a result of RNZ’s reporting in these bulletins, and we acknowledge a considerable amount of time has passed since, we were swayed by the significant public importance in the information at the time as well as the particular public interest in broadcasters reporting political matters accurately. Audiences should be entitled to rely on information conveyed as part of RNZ’s current affairs and news reporting. In this case, what we have found to be a misleading narrative could have been shut down or adjusted earlier had RNZ been more querulous in evaluating the available information.

[70]  Accordingly, we consider orders are warranted in this case beyond mere publication of the decision.

Broadcast statement – section 13(1)(a)

[71]  A broadcast statement is typically ordered where we consider publication of the decision is insufficient to publicly denounce the breach of broadcasting standards, censure the broadcaster, or rectify the harm caused.

[72]  We consider a broadcast statement is appropriate in this case to publicly notify the breach of the accuracy standard and correct the record, given the significance of the matter at the time.

[73]  While the complainant has submitted that multiple statements should be broadcast, we consider one statement during RNZ’s morning news would be proportionate, and sufficient to reach a large proportion of a similar audience.

[74]  Consistent with the Authority’s usual practice, the broadcaster will draft a statement summarising the upheld aspects of our decision, for approval by the Authority.

Order

Under section 13(1)(a) of the Act, the Authority orders Radio New Zealand Ltd to broadcast a statement. The statement shall:

• summarise the upheld aspects of the Authority’s decision
• be approved by the Authority prior to being broadcast
• be broadcast immediately after the 8am Morning Report news bulletin on a working day
• be broadcast within one month of the date of this decision.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority and the complainant of the manner in which the above order has been complied with.

Signed for and on behalf of the Authority

Susie Staley
Chair
1 May 2023

Appendix

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

1  Associate Professor Hanna Wilberg’s formal complaint to RNZ – 20 April 2022

2  RNZ’s decision on complaint – 12 June 2022

3  Wilberg’s referral to the Authority (including copy of 12 November 2021 memo) – 30 June 2022

4  RNZ’s confirmation of no further comments – 24 November 2022

5  Wilberg’s submissions on provisional decision and orders – 13 March 2023

6  RNZ’s submissions on provisional decision and orders – 17 March 2023

7  Wilberg’s final submissions – 27 March 2023

8  RNZ’s final submissions – 27 March 2023

¹ Katie Todd “MIQ not justified beyond November, health officials told govt last year” RNZ (online ed, 19 April 2022)
² “MIQ ending delay justified – Grant Robertson” RNZ (online ed, 7.50am on 20 April 2022)
³ Wilberg and Radio New Zealand Ltd, Decision No. ID2022-071
⁴ Standard 9 of the Radio Code of Broadcasting Practice
⁵ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁶ Standard 8 of the Radio Code of Broadcasting Practice
⁷ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁸ As above
⁹ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
¹⁰ “Grounded Kiwis files judicial review claim in High Court over MIQ” Stuff (online ed, 8 October 2021)
¹¹ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
¹² Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [98]
¹³ World Health Organisation “One year since the emergence of COVID-19 virus variant Omicron” (25 November 2022) <www.who.int>
¹⁴ Manatū Hauora | Ministry of Health “First Omicron case detected in New Zealand” (16 December 2021) <www.health.govt.nz>
¹⁵ Guideline 9e
¹⁶ As above
¹⁷ As above
¹⁸ This was a relevant factor taken into account in Andrews & Murray and Radio New Zealand Ltd, Decision No. 2020-153 at [17]–[25]
¹⁹ Katie Todd “MIQ not justified beyond November, health officials told govt last year” RNZ (online ed, 5.56pm on 19 April 2022)
²⁰ “MIQ ending delay justified – Grant Robertson” RNZ (online ed, 7.50am on 20 April 2022)
²¹ Guideline 8a
²² Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
²³ For a similar finding, see Ministry of Education and Radio New Zealand Ltd, Decision No. 2017-076
²⁴ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
²⁵ See John Burrows “External Review of Decisions 2020 – Accuracy Standard” (9 July 2020) Broadcasting Standards Authority | Te Mana Whanonga Kaipāho <www.bsa.govt.nz>
²⁶ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
²⁷ Katie Todd “MIQ not justified beyond November, health officials told govt last year” RNZ (online ed, 5.56pm on 19 April 2022)
²⁸ “MIQ ending delay justified – Grant Robertson” RNZ (online ed, 7.50am on 20 April 2022)
²⁹ Michael Daly “No ‘great conspiracy’ to keep memo on MIQ wind down secret, Hipkins says” Stuff (20 April 2022); Mark Quinlivan “COVID-19: Chris Hipkins can’t say if his office knew MIQ memo from Ministry of Health was being withheld” Newshub (online ed, 20 April 2022)
³⁰ Grounded Kiwis Group Incorporated v Minister of Health [2022] NZHC 832
³¹ Wilberg and Radio New Zealand Ltd, Decision No. ID2022-071