BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

On an episode of Simon Barnett and Phil Gifford Afternoons, an expert and the hosts made inaccurate statements about the Government’s COVID-19 economic recovery package shortly after its announcement. The Authority has not upheld a complaint that the broadcast breached the accuracy standard, finding that the broadcaster had made reasonable efforts to ensure the programme did not mislead and had promptly corrected the error. The Authority highlighted the importance of information broadcast by experts being accurate and, consequently, the importance of any errors being corrected as soon as possible.

Not Upheld: Accuracy

The broadcast

[1]  On 17 March 2020, an episode of Simon Barnett and Phil Gifford Afternoons, on Newstalk ZB, featured the Minister of Finance’s announcement of the COVID-19 emergency economic package. The announcement was followed by a discussion of the package by the hosts that started with the following statement:

Host 1: …but man, there’s a lot to digest there, pretty impressive, you’d have to say at first glance pretty impressive. To break it down for us Barry Soper is going to join us in 2 minutes.

[2]  During the segment at approximately 2.35pm, Bruce Bernacchi of KPMG was interviewed. He was introduced as follows:

Host 1: Well, lots and lots to discuss about the support package from the government. Bruce Bernacchi is the Head of Financial Services with KPMG, he joins us on the line now.

[3]  During the discussion the following exchange took place regarding the Government’s proposed wage subsidy programme (the relevant extracts are in italics):

Host 1: so it is basically just the government paying, you know, a part of their salary effectively to get us through the time.

Host 2:  yeah, yeah so that the company can keep operating, yeah.

Mr Bernacchi: Yeah absolutely, absolutely, and that’s why it is linked to a loss of revenues right you’ve got to certify that you’ve had a 30% drop in revenues before you’re able to apply for the subsidy, so it is really replacing lost revenues with the employing company.

Host 1: Bruce who is going to feel like they’ve missed out here?

Mr Bernacchi: Look there will be some right, so this is a subsidy for people who employ staff, but if you are a contractor, if you are self-employed, if you are a casual worker you’re potentially still at risk so for those people who are contractors or self-employed out there who are losing business out of this at the moment they are not going to benefit from this package unfortunately.

Host 1: So if you are an independent contractor is there anything in it for you?

Mr Bernacchi: Ah, no

…

Host 1: …this is a little bit of a negative text, but I’ll leave it with you, you might be able to shed some light on it. So let me get this right guys we are a self-employed husband and wife team, we work together with no staff. If we get the virus that means no money coming in at all, how do we feed the family?

Mr Bernacchi: Yea look, they do make a great point right, so as I said before, the self-employed and contractors, are not getting anything out of this, if that couple had a salary and wage earner I mean, they would actually get some replacement for their revenue and so all I can take from this is that this is the start, and you would hope that either in the May budget or if another announcement is needed that for small businesses that don’t employ staff, some relief might be forthcoming because that sector of small business is going to suffer.

Host 1: Bruce, excellent to get your thoughts mate, thanks so much.

[4]  After the interview, at around 2.56pm, the discussion continued as follows (the relevant extracts are in italics):

Host 1: Very quickly, um, I’ve had a feeling and I’ve just been going through these papers again and Barry Soper mentioned it, now it is not $585 a week for full-timers subsidy in effect for employers, but if you are self-employed then there is for up to 12 weeks $350 a week available for self-employed people…

Host 2: $350 a week

Host 1: $350 a week, not the $585 a week but $350 a week for self-employed people…

Host 1: So let me just quickly read it, what it actually says on the statement from the government. A wage subsidy for employers up to 12 weeks and up to $150,000 if they’ve suffered a 30% decline in revenue compared to last year. Now that subsidy will be allowed for $585 a week for full-timers and $350 a week for part-timers. It is available to all employers and self-employed. So in other words if you are self-employed and you’ve suffered more than a 30% decline in revenue…then there is a $350 a week subsidy available.

Host 2: If you are an independent contractor…

Host 1: Well, that’s what self-employed is isn’t it?

Host 2: Well, you’d think so.

Host 1: Yea surely it must be.

[5]  After the 3pm news, the programme resumed with an interview between the hosts and Leader of the Opposition, the Hon Simon Bridges (approximately 3.07pm). The issue of the wage subsidy scheme was further discussed:

Host 2: … we are getting like hundreds, literally hundreds of texts from people that are self-employed or independent contractors saying there’s nothing in it for them…but that is not actually strictly true is it?

Host 1: …it is actually just not true Simon is it?

Hon Simon Bridges: No, no, it’s not…business support, job support does apply to them as well.

Host 1: …so that is for up to 12 weeks…$585 per week full-timers, $350 a week for part-timers, and it does include self-employed. And just so people are very clear, and it’s partly our fault, I think before the news at 3, there was some confusion with us in there, because we weren’t sure ourselves, that self-employed and independent contractors, they are exactly the same thing, aren’t they?  

Hon Simon Bridges: Yeah, absolutely…

[6]  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

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

• Mr Bernacchi’s statements that there is nothing in the wage subsidy package for self-employed people were inaccurate.
• It was clear in Mr Robertson’s speech that self-employed people were covered and this was also confirmed in an earlier interview with Barry Soper on the programme.
• ‘I texted through to the show and told them this was untrue.’
• It is irresponsible to continue to broadcast inaccurate information that could cause panic for a lot of people.
• While there was recognition of the error the broadcaster still gave out inaccurate information that self-employed people would receive $350 per week when it is actually $585.

The broadcaster’s response

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

• ‘Having reviewed Minister Robertson’s speech we note that while he stated that the wage subsidy scheme would apply “to all firms, the self-employed and sole traders” he stated that the subsidies…would apply to full-time and part-time employees respectively.’
• The focus of the speech was on employers and employees rather than the self-employed.
• Mr Soper’s earlier interview did not confirm that the self-employed were covered. Mr Soper referred to ‘full-time and part time workers’.
• ‘In our view, Mr Bernacchi and the hosts were doing their best to summarise a comprehensive package of financial support moments after it has been announced.’
• Neither the hosts nor the contributor had the opportunity to review a written transcript of this speech prior to the broadcast.
• The hosts ‘were entitled to rely on the answers given by the contributor, who as Head of Financial Services at KPMG, is an experienced finance and tax specialist.’
• ‘In this case, Mr Bernacchi’s analysis…was incorrect, however in the circumstances it can be excused by the general nature of [the speech] and by the various references to “employees” and “workers”’.
• ‘Any uncertainty around eligibility of the self-employed to access the wage subsidy scheme was clarified in subsequent days on Newstalk’s shows.’

[9]  With respect to the correction and texts received by the broadcaster, NZME submitted that:

• ‘NZME receives a large volume of texts during our broadcasts and it isn’t always possible to review or respond to them all.’
• ‘(At 2.56pm) the hosts corrected the earlier statement to confirm that the wage subsidy would be available to self-employed persons and independent contractors.’
• The hosts clarified the issue again following the 3pm news when they interviewed Simon Bridges on whether the earlier statement had been incorrect.

Third party comments

[10]  As part of our consideration of the complaint, we also sought comment from Mr Bernacchi on a provisional draft of the decision. On reviewing the provisional decision, Mr Bernacchi did not seek to offer any comments or suggested amendments.

The relevant standard

[11]  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.¹

[12]  Determination of a complaint under the accuracy standard occurs in two stages. The first step is to consider whether the programme was inaccurate or misleading and the second is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme did not mislead. A programme may be inaccurate but may not breach the standard if the broadcaster took reasonable steps by, for example, relying on a reputable source.²

Our analysis

Freedom of expression and public interest

[13]  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.

Accuracy

[14]  The complainant has identified two alleged inaccuracies:

• Mr Bernacchi’s statements, in paragraph [3] above, that contractors and the self-employed were not covered by the wage subsidy package.
• The host’s subsequent statements, in paragraph [4] above, suggesting that contractors and the self-employed were covered but that their entitlements were limited to $350.

[15]  The accuracy standard applies only to news, current affairs and factual programming.³ We refer to the programme information on Newstalk ZB’s website which states that Simon Barnett and Phil Gifford Afternoons brings audiences the ‘latest in news and views’, and discusses and debates issues that ‘matter most to New Zealanders.’⁴ We therefore consider Simon Barnett and Phil Gifford Afternoons falls within the category of news and current affairs programming.

[16]  The accuracy standard does not apply to statements clearly distinguishable as analysis, comment or opinion.⁵ However, considering the following factors, we find that the statements complained about, were statements of fact to which the standard applies:⁶

• While the wider discussion about the recovery package was arguably analysis and contained some comment by the speakers, it contained unequivocal statements of fact by Mr Bernacchi and the hosts as to who would receive the benefit of the subsidy and to what extent.
• Both Mr Bernacchi’s and the hosts’ statements with regard to the scope of the subsidy package were verifiable statements that could be proven right or wrong.
• Neither Mr Bernacchi nor the hosts prefaced their comments with any indication that they were only providing an opinion or analysis. The language used in both cases was definitive.
• In clarifying his conclusion, in the comments referred to in paragraph [4], the host stated that he was reading from the Government’s statement.

[17]  In his announcement Mr Robertson said:

The scheme will provide support through employers and to sole traders and the self-employed for those people who are in self isolation and unable to work, or who are sick or caring for dependents who are in either of those situations…

The scheme will be available to all businesses in all sectors nationwide, and will include the self-employed and sole-traders. Eligible firms will be provided a lump sum payment of the equivalent of $585 per week per full-time employee and $350 per week per part-time employee…

[18]  Given this, we agree that the statements identified by the complainant were inaccurate and had the potential to mislead listeners.

[19]  However, our assessment does not end there. The next issue is whether the broadcaster made reasonable efforts to ensure that the programme was accurate, and did not mislead. The following factors are relevant to this assessment:

• This was a real time report of an important Government policy announcement concerning the COVID-19 economic recovery package.
• The broadcast offered live commentary and interpretation of the package immediately after its announcement.
• This was a highly important announcement that affected the New Zealand public during a pandemic, and the public had an interest in receiving information about it quickly.
• The statements complained about followed immediately after the broadcast of Mr Robertson’s announcement in which the hosts acknowledged that there was ‘a lot to digest’.
• This was a fast moving news story and steps were taken to seek advice from experts to help ‘break down’ different aspects of the announcement for the audience.
• Mr Bernacchi was presented as an expert and was the head of financial services at a reputable firm.
• The broadcaster was receiving a large number of text messages on the issue during the broadcast in real time including text messages from Ms Wilson identifying the inaccuracy.
• In the context of a live broadcast they picked up the inaccuracies and corrected them quickly.
• The hosts identified the first inaccuracy (that the subsidy package did not apply to contractors and the self-employed) and promptly sought to clarify the position on air only 10 minutes after the interview, in the same programme.
• A correct explanation of the subsidy package, to whom it applied and the rate that applied was ultimately provided in the interview with the Hon Simon Bridges at 3.07pm within the same programme and approximately half an hour after the original error.
• In the interview, the hosts acknowledged their earlier confusion regarding the application of the package to contractors and the self-employed.

[20]  We acknowledge Ms Wilson’s submission that it is irresponsible for broadcasters to allow, or continue broadcasting, inaccurate information, particularly when the information has the potential to cause distress. We consider that in the context of the fast-paced environment surrounding the Government response to the COVID-19 pandemic, the broadcasters made reasonable efforts to ensure that the programme did not mislead. The broadcaster was entitled to expect that an expert from a reputable firm would provide accurate statements about the package, and they picked up and corrected the error within the hour.

[21]  Considering the factors highlighted in paragraph [19], in our view the broadcaster did not ‘continue’ to broadcast inaccurate information. The hosts were clearly working to understand the new package and to correct any inaccuracies for their listeners – all live on air and very shortly after the package was announced. 

[22]  We also acknowledge Ms Wilson’s argument that text messages were sent during the broadcast that would have alerted the broadcaster to the mistake. However, as stated in the interview with the Hon Simon Bridges, the broadcaster was receiving ‘literally hundreds’ of texts and would have needed to verify any information received by text before taking any steps to clarify the statement on air. It is our view that the broadcaster endeavoured to do so within a reasonable timeframe.

[23]  In this case, the inaccuracy arose from advice provided by the expert. We acknowledge that Mr Bernacchi was also in the challenging position of having to interpret and unpack the policy immediately after its release. However, while the use of an expert is some evidence that a broadcaster has made reasonable efforts to ensure accuracy it is important that any experts that may be used make accurate statements of fact. Where an error is made by an expert, it is important that the broadcaster, having realised the error, corrects it as soon as possible (as occurred in this situation).

[24]  In this case, we are satisfied that the broadcaster made reasonable efforts to ensure that the broadcast did not mislead.

[25]  We therefore do not find a breach under the accuracy standard.

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

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

24 August 2020

Appendix

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

1  Grant Robertson’s Announcement of 17 March 2020

2  Lara Wilson’s text messages to NZME – 17 March 2020

3  Ms Wilson’s complaint to NZME – 18 March 2020

4  NZME’s response to Ms Wilson’s complaint – 20 April 2020

5  Ms Wilson’s referral to the BSA – 26 April 2020

6  NZME’s further comments – 15 May 2020

7  NZME’s further comments clarifying when corrections were made – 10 July 2020

8  Bruce Bernacchi’s confirmation of no comments on the provisional decision – 4 August 2020 

¹ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
² As above
³ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁴ <https://www.newstalkzb.co.nz/on-air/simon-barnett-and-phil-gifford-afternoons/>
⁵ Guideline 9a
⁶ Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 64