BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The majority of the Authority did not uphold a complaint that a comment made by Mike Hosking during a ‘Mike’s Minute’ segment of Mike Hosking Breakfast about the government’s surplus breached the accuracy standard. The majority found that, considering a number of contextual factors, the statement was one of comment and political analysis, the type of which is common in news and current affairs broadcasts to which the accuracy standard does not apply. The minority view was that Mr Hosking’s comment was an inaccurate statement of fact on which he then based his opinion and that the broadcaster did not make reasonable efforts to ensure the accuracy of the statement on which the following comments were based.

Not Upheld by Majority: Accuracy

The broadcast

[1]  During a ‘Mike’s Minute’ segment in Mike Hosking Breakfast, host Mike Hosking discussed his concerns about the economic future of New Zealand and the government’s fiscal policy. During the segment Mr Hosking said New Zealand has 'a surplus that’s basically vanished.’

[2]  The segment was broadcast on 27 June 2019 on Newstalk ZB. In considering this complaint, we have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The complaint

[3]  Chris Wilson complained that the broadcast breached the accuracy standard of the Radio Code of Broadcasting Practice for the following reasons:

• Mr Hosking’s statement that New Zealand has 'a surplus that’s basically vanished’ was inaccurate.
• A news article released the same day stated that the surplus was ‘up more than half on what was forecast.’¹
• Mr Hosking’s statement was central to his argument that New Zealand has a weakening economy.
• NZME needs to correct this statement so listeners can make conclusions based on true information.

The broadcaster’s response

[4]  NZME submitted the broadcast did not breach the accuracy standard for the following reasons:

• ‘Mike’s Minute’ is well known as an opinion piece and the statements made within it are not statements of fact, but Mike’s opinion as to the forecasted narrowing of the government surplus over the next few years, due to increased spending.
• ‘Mike’s Minute’ is not a news or current affairs programme.
• In this particular Mike’s Minute, the piece was marked with the usage of personal pronouns “we/I think” and analysis and opinion by Mike Hosking. 
• ‘Mike’s Minute’ is clearly known as an opinion piece that cannot reasonably be subject to the accuracy standard, unless Mr Hosking is ‘citing or quoting a news fact.’
• The government surplus was forecast to decrease.² While it may be an exaggeration to say the surplus has ‘basically vanished’, Mr Hosking also stated that policies which were not costed ‘will most likely eat whatever is left of the surplus’ thereby qualifying his opinion.

The relevant standards

[5]  The accuracy standard (Standard 9) states that 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. The objective of this standard is to protect audiences from being significantly misinformed.³

Jurisdiction

[6]  We note the complainant heard the relevant broadcast on Facebook on this occasion. The Authority has previously accepted that it may consider complaints about a programme listened to or watched on the internet where it has also been broadcast on the radio or in another format subject to the Authority’s jurisdiction.⁴

[7]  We agree that this principle should apply in this case. If the programme has been broadcast on television or radio the relevant broadcasting code will apply to it and a complaint may be made about it. The only limitation is that the complaint must be made within 20 working days of the broadcast, which we understand was done in this case.

Our analysis

Freedom of expression and public interest

[8]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[9]  We have previously recognised that programme hosts and presenters such as Mr Hosking have an important and influential role, particularly in the lead up to a democratic process such as an election.⁵ Conversely we also note the importance of listeners and the general public being discerning about the information they receive and encourage them to seek out a range of perspectives on controversial and political issues to help them arrive at informed and reasoned opinions.

[10]  It is an important role of the media in general to discuss issues that widely affect New Zealand society and promote frank public discourse and discussion, which is a valuable feature of the right to freedom of expression and our democratic society. We consider the standards provide guidance to broadcasters and media figures about how to promote and participate in this public discourse in constructive ways that minimise the potential for harm to the audience.

Majority view (Paula Rose QSO and Susie Staley MNZM)

Accuracy

[11]  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.⁶ Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’⁷ Programmes may be misleading by omission.⁸

[12]  The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.⁹

[13]  The standard only applies to news, current affairs and factual programming.¹⁰

[14]  We, the majority, first considered whether the Mike Hosking Breakfast programme and specifically ‘Mike’s Minute’ amounts to a news or current affairs broadcast. While there is an element of talkback in Mike Hosking Breakfast, to which the standard will not usually apply,¹¹ the programme and the ‘Mike’s Minute’ segment focus on the discussion of the latest news and events through Mr Hosking’s perspective, promising to ‘ensure the audience is up to date and informed…’¹² Therefore we find that Mike Hosking Breakfast amounts to a news and current affairs programme to which the accuracy standard applies.

[15]  We now proceed to consider whether Mr Hosking’s statement was a statement of fact or ‘analysis, comment or opinion’. A fact is verifiable: something that can be proved right or wrong. An opinion is someone’s view. It is contestable, and others may hold a different view.¹³ However, it is not always clear whether a statement is an assertion of fact or opinion and every case must be assessed on its merits. Relevant factors that can assist in our determination include:¹⁴

• The language used in the statement.
• The language used in the rest of the item. For example, a statement made in a programme hosted by a person of known outspoken views is more likely to be opinion.
• Whether evidence or proof is provided. The audience is more likely to interpret a statement as fact if supporting evidence is given.
• The type of programme and the role and reputation of the person speaking.
• The subject matter, including whether the topic discussed is controversial.

[16]  Looking first at the language used in the statement itself, outside of the qualifier ‘basically’, the language used by Mr Hosking was reasonably definitive regarding the state of the government’s surplus. We also note the language used during the segment surrounding the statement was a mix of similar assertions from Mr Hosking and statements that were clearly distinguishable as Mr Hosking’s analysis and opinion.

[17]  However, the majority of the factors listed above suggest Mr Hosking’s statement was one of opinion, comment and analysis rather than fact.

[18]  Mr Hosking did not present any proof to support his statement, instead choosing to move on to other economic issues in quick succession.

[19]  With respect to the reputation of the programme, the ‘Mike’s Minute’ segment and Mr Hosking, there is an audience expectation that, while Mr Hosking will discuss current events during this segment, he will do so from a particular political perspective and in a way that focuses significantly on his opinion and analysis of these events.  The particular comment was part of a recognised ‘opinion piece’ where Mr Hosking expresses his concerns.

[20]  Finally, the subject matter of this segment of ‘Mike’s Minute’, the economic health of New Zealand and fiscal management of the government, is controversial and subject to ongoing political debate and discourse in the media and the general public.  Political analysis about controversial subjects such as the economy is common in news and current affairs broadcasts like this and, as mentioned above, there is an audience expectation that Mr Hosking will approach subjects like this from a particular perspective.

[21]  Taking into account the above factors, on balance we find Mr Hosking’s comment was not a statement of fact for the purposes of this standard. While we have recognised the influence hosts like Mr Hosking have and their potential to cause harm through misinformation, on this occasion we find Mr Hosking’s statement was clearly his analysis and opinion.

[22]  On this basis the majority view is that the accuracy standard does not apply and the complaint should not be upheld.

Minority view (Judge Bill Hastings)

[23]  I, the minority, agree with the general principles which have been expressed by the majority. It is in the application of those principles to the facts of this case that we diverge.

[24]  I agree that that Mike Hosking Breakfast amounts to a news and current affairs programme to which the accuracy standard applies. However I differ from the majority as I have found Mr Hosking’s assertion that New Zealand has ‘a surplus that’s basically vanished’ to be a statement of fact which was demonstrably wrong, but which he relied upon to advance his opinion. In my view Mr Hosking used an incorrect fact to strengthen the opinion he was expressing.

[25]  In an environment in which we are surrounded with increasing levels of analysis and opinion, it is sometimes difficult to distinguish fact from opinion in a definitive manner. The increasing trend of hosts and presenters to use their platforms to present statements of opinion as fact creates a higher potential for harm to the audience through the spread of misinformation. Minimising the risk of such harm is an important aspect of promoting valuable public discourse, particularly in the lead up to an election. The standards are intended to operate to strengthen the protections available in the broadcasting environment.

[26]  Looking first at whether Mr Hosking’s statement was one of fact, I considered a number of factors relevant to my determination.¹⁵ During the ‘Mike’s Minute’ segment Mr Hosking commented on a wide variety of political issues in quick succession. Mr Hosking’s statement that New Zealand has 'a surplus that’s basically vanished’ had no connection to the surrounding statements, except for a comment about the effect of the firearms ‘buyback’ policy on the surplus. Mr Hosking’s statement was also definitive and authoritative in its language and tone. Finally, considering the nature of the programme, I note that listeners tune in to the Mike Hosking Breakfast for updates on the latest news and current affairs, not just Mr Hosking’s opinion. Accordingly the audience are expecting to hear comments about actual news and current affairs matters like this and will consider them to be based on authoritative statements of fact.

[27]  In addition to being a statement of fact to which the accuracy standard applies, it is clear that the statement was demonstrably false. Several weeks before the broadcast the Treasury released the government’s financial statements from the previous 10 months which showed the government’s tax revenue was significantly higher than initially forecast.¹⁶ This suggested the government would record a surplus at the end of the financial year that was larger than what had previously been forecast and larger than the previous financial year. This was widely reported by the media in the period prior to the broadcast.¹⁷ Therefore I find Mr Hosking’s statement that New Zealand has 'a surplus that’s basically vanished’ to be inaccurate.

[28]  In my view Mr Hosking made a false statement of fact, but presented it as true and then used this as the basis for his opinion.  I consider this to be a clear breach of the standards, which risked leaving listeners misinformed.

[29]  I now turn to whether the broadcaster made reasonable efforts to ensure the accuracy of the statement. There are a range of factors relevant to whether reasonable efforts have been made to ensure accuracy.¹⁸ Considering the widespread media coverage of the government’s larger than expected surplus in the period prior to the broadcast and the information available to the public at the time about the government’s financial forecast, the broadcaster should have been aware that there was obvious reason to question the accuracy of the statement contained in this piece. Had they done so, the inaccuracy of Mr Hosking’s statement, upon which his opinion was then based, could have been reasonably determined. I therefore find reasonable steps were not taken by the broadcaster to ensure the accuracy of Mr Hosking’s statement.

[30]  Therefore I, the minority, find Mr Hosking’s statement breached the accuracy standard.

Conclusion

[31]  In conclusion, while there is agreement amongst us regarding the principles that govern our decision, there is a difference in position with respect to the application of these principles to this specific situation. As the majority of the Authority members have found the broadcast did not breach the accuracy standard, the complaint is not upheld.

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

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

22 January 2020

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

1                 Chris Wilson’s formal complaint – 28 June 2019

2                 NZME’s response to the complaint – 19 July 2019

3                 Mr Wilson’s referral to the Authority – 30 July 2019

4                 NZME’s further comments – 18 September 2019

¹ See Cash windfall: Tax take almost $2b higher than forecast (RNZ, 27 June 2019)
² See ‘Finance Minister Grant Robertson delivers $3.5 billion budget surplus; Big-ticket items include spending on rail and reducing child poverty; Higher expenses to create more debt’ (Interest.co.nz, 30 May 2019)
³ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁴ McKenzie and 95bFM, Decision No. 2005-090 at [12]; Phillips and Racing Industry Transition Agency, Decision No. ID2019-044 at [11]
⁵ See: McCaughan and Television New Zealand Ltd, Decision No. 2017-083 at [39]
⁶ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁷ Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
⁸ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁹ As above
¹⁰ As above
¹¹ Guideline 9d
¹² <https://www.newstalkzb.co.nz/on-air/mike-hosking-breakfast/>
¹³ Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 62
¹⁴ As above
¹⁵ Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 62
¹⁶ Interim Financial Statements of the Government of New Zealand (Treasury, 6 June 2019)
¹⁷ See for example: New accounts show surplus could be billions larger than expected in Budget (Stuff, 6 June 2019), Cash windfall: Tax take almost $2b higher than forecast (RNZ, 27 June 2019) and Crown accounts show strong economic fundamentals (Beehive, 27 June 2019)
¹⁸ Guideline 9e