BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

  Morning Report covered a story on kauri swamp logs that were allegedly being illegally exported to China. It reported that the company Oravida was one of the ‘kauri wholesalers’ involved. RNZ upheld a complaint from Oravida’s director that the broadcast was unfair as comment was not sought from Oravida. RNZ had removed the audio and written pieces that referred to Oravida and its director from its website, and two days later in a subsequent broadcast briefly reported Oravida’s position that it had never been involved in illegal trading. The Authority upheld the complaint that the action taken by RNZ in upholding the fairness complaint was insufficient and that the broadcast was also inaccurate. The Authority did not make any order noting that a full correction and apology was broadcast after the referral of the matter to this Authority.    Upheld: Fairness (Action Taken), Accuracy   No Order   

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Introduction 

[1]  On 16 June 2015 Morning Report covered a story on kauri swamp logs that were allegedly being illegally exported to China. It reported that the company Oravida was one of the ‘kauri wholesalers’ involved. The relevant excerpts were as follows:

The kauri logs are being carved at [name]’s depot in Awanui, north of Kaitaia, at the complex known as the Ancient Kauri Kingdom. [Name] says he carves some of them himself. …He says he’s also supplied the company Oravida with kauri. … An Auckland geologist and conservationist… says the kauri miners have in many cases broken through the hard pan that keeps groundwater close to the surface and sustains the wetlands and the lakes. He says the entire ecosystem’s now at risk and it’s inexplicable that the Authorities have done so little to prevent that or to monitor the industry. [Name] says with Oravida, one of the better-known companies involved in kauri wholesaling, it’s not a good look for Government ministries to appear flexible with export regulations, because the company’s director, David Wong-Tung, is the husband of the National MP Judith Collins.

[2]  David Wong-Tung, Oravida’s director, complained that the item was inaccurate as Oravida is not a kauri wholesaler, and unfair because it portrayed the company and himself as engaging in illegal activities. Radio New Zealand upheld the fairness complaint and said that it had ‘subsumed’ its consideration of the accuracy standard under its consideration of the fairness standard.   [3]  Mr Wong-Tung has referred the matter to this Authority on the grounds he is dissatisfied with the action taken by RNZ to address the breach.   [4]  The issues for our determination are:  

• whether the action taken by RNZ having upheld the fairness complaint was sufficient; and
• whether the broadcast breached the accuracy standard of the Radio Code of Broadcasting Practice, given that RNZ did not substantively address it.

[5]  The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.  

Did the broadcaster take sufficient action, having upheld the complaint under the fairness standard?

[6]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.¹    [7]  RNZ acknowledged that it had breached the fairness standard because Mr Wong-Tung was ‘not given the opportunity to respond to the references to [him] and [his] company before the programme was broadcast’. As a remedy, RNZ removed audio and text referring to Mr Wong-Tung and Oravida from the RNZ website, and also stated Mr Wong-Tung’s position in a subsequent broadcast on the issue on 18 June 2015 (two days after the original broadcast) as follows:

David Wong-Tung was adamant his company had always complied with the laws of New Zealand, had never traded or exported illegally and never would.

[8]  Mr Wong-Tung referred the matter to us on the basis that ‘mere removal of the material [was] insufficient’ and that the 18 June broadcast would not have sufficiently corrected listeners’ understanding. He argued that RNZ should broadcast a correction to the effect that Mr Wong-Tung and/or Oravida were not actually involved in the wholesale or export of raw swamp kauri.    [9]  We agree with the complainant that, as at the date of his referral (17 July 2015), the action taken by RNZ was insufficient to properly address the breach. There was a real likelihood that the allegations against Oravida and Mr Wong-Tung and the impression created by the 16 June item – namely, that Oravida was being supplied with, and illegally exporting, kauri logs – would be damaging to their reputation and business interests. It is usually the case that any person or organisation about whom something adverse or critical is to be said should be given some opportunity to comment in advance or at least an opportunity of contemporary reply. The item made adverse comment about Oravida and Mr Wong-Tung and did not include comment from either, nor reference any attempts to seek comment. Oravida was not given an opportunity to specifically address the issues raised in the item, and the subsequent brief statement presenting Oravida’s position made no reference to the kauri trade, saying only that the complainant ‘was adamant his company had always complied with the laws of New Zealand, had never traded or exported illegally and never would’. We therefore agree with the complainant that the steps taken by RNZ would not have adequately addressed the negative impression created for listeners by the 16 June item.   [10]  On this basis, we uphold the action taken complaint in relation to the fairness standard.    [11]  However, we are satisfied that RNZ adequately remedied the breach by broadcasting a comprehensive correction and apology on 11 August 2015, as follows: 

[The] story referred to Oravida, and one of its directors, David Wong-Tung, as a ‘kauri wholesaler’. Now, we accept that Oravida is not a kauri wholesaler and we did not intend to suggest that Oravida and Mr Wong-Tung were involved in the illegal export of swamp kauri logs, or that they had exported swamp kauri logs in breach of the Forests Act. Radio New Zealand unreservedly apologises to Oravida and Mr Wong-Tung for any error and any suggestion they have acted unlawfully.

[12]  For this reason we do not see that any further action or penalty is warranted beyond upholding this part of the complaint (see paragraph [17] below).  

Was the broadcast inaccurate or misleading?

[13]  The accuracy standard (Standard 5) 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.    [14]  In its decision on the original complaint, RNZ purported to ‘subsume’ the accuracy standard under its consideration of the fairness standard. The objectives of the two standards are different so we do not agree in principle with the idea of ‘subsuming’ one within the other. Fairness is concerned with protecting the interests, reputation and dignity of participants and their right to be dealt with justly and fairly (see paragraph [6] above), while the objective of the accuracy standard is to protect the audience (in this case listeners) from receiving misinformation and thereby being misled.²  Because the broadcaster did not deal substantively with the accuracy complaint and did not indicate whether it was upheld or not, we have assessed this part of the complaint as if it were not upheld.    [15]  Mr Wong-Tung argued that ‘the unavoidable implication is that Oravida has purchased superficially carved logs… with the intent of improperly passing those logs off as finished products for the purposes of export’. He said the broadcast ‘directly and by implication stated… that Oravida and therefore [himself] as a Director of the Company has been and is involved in breaching the law’. He argued that Oravida: has not exported any saw logs or stump logs with any carvings or ‘scratchings’; has not exported slabs of swamp kauri; is not a kauri wholesaler; was not involved in the extraction of logs; and did not request flexibility with export regulations.   [16]  It is clear from RNZ’s subsequent correction and apology in August (see paragraph [11]) that it ‘accept[s] that ‘Oravida is not a kauri wholesaler’ and that it should not have suggested that ‘Oravida and Mr Wong-Tung were involved in the illegal export of swamp kauri logs’. Therefore we believe that the complaint should be upheld under Standard 5. However, again, we are satisfied that RNZ’s correction and apology adequately remedied this breach.    For the above reasons the Authority upholds the complaint that the action taken by Radio New Zealand Ltd regarding the broadcast of Morning Report on 16 June 2015, having upheld the complaint under Standard 6, was insufficient.   The Authority also upholds the complaint that the broadcast breached Standard 5 of the Radio Code of Broadcasting Practice.   [17]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. Generally the most likely order in this type of situation would be a broadcast statement, which may include an apology. As we have noted in our findings, RNZ has already acknowledged its error and has broadcast a comprehensive correction and apology. We therefore find that our decision is sufficient in the circumstances and that no order is warranted.   Signed for and on behalf of the Authority       Peter Radich Chair 10 November 2015  

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:   1      David Wong-Tung’s formal complaint – 16 June 2015 2      Radio New Zealand Ltd’s response to the complaint – 19 June 2015 3      Mr Wong-Tung’s referral to the Authority – 17 July 2015 4      RNZ’s response to the Authority – 21 August 2015