BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint that an interview with an Israeli soldier on Morning Report breached several standards. The complainant alleged statements made by the interviewee were inaccurate, discriminated against Palestinians and Middle Eastern people, and were offensive and disturbing and unbalanced. The Authority found that the statements of the interviewee were comment, analysis or opinion to which the accuracy standard does not apply and, if not, the broadcaster had made reasonable efforts to ensure accuracy. The Authority also found the comments were not directed at Palestinians and Middle Eastern people and were, in any event, serious comment, analysis or opinion to which the discrimination and denigration standard does not apply; the comments did not seriously violate community standards of taste and decency; and the interview did not breach the balance standard noting it was clearly signalled as presented from a particular perspective.

Not Upheld: Accuracy, Discrimination and Denigration, Offensive and Disturbing Content,  Balance

The broadcast

[1]  During the 27 November 2023 broadcast of Morning Report, an interview with Israeli soldier Benjy Treister aired. The interview was introduced as follows:

The four day truce between Israel and Hamas continues to hold with the release of 14 Israeli hostages, three Thai nationals and one Russian to the Red Cross. Today is the third day of the four day pause in fighting between Israel and Hamas in the Gaza Strip to facilitate the release of dozens of Israeli hostages and Palestinian prisoners. Benjy Treister is a Kiwi-Israeli soldier who was called on to serve in the conflict in Gaza. He is with us now on the line. Hi Benjy.

[2]  The interview then contained the following relevant excerpts:

Host:            Is there a hope Benjy, that this [ceasefire] will be extended though? That if 'so far so good', that both sides are getting what they want here, that there is the ability to extend this and get more hostages out? Is that what people in Israel want?

Treister:      Look, I think everybody in Israel would like to see all the hostages coming out, but it depends on the conditions. I think that after the 7th of October attack we understood, a lot of us understood, who is living beside us. In 2005, we tried to give them their own country. We tried to start the so-called two state solution. And till now all we've seen is war from their side. And I think the, you know, a lot of us changed our minds about what needs to be done with Hamas. I think today we realise that we cannot live with them living beside us. And, I don't see a possibility in which we get all our prisoners back, if we continue the ceasefire, I unfortunately, I don't see that happening.  

…

Host:            But, obviously there has been a huge death toll and the numbers of Gazans killed - in the thousands. Women and children, innocents, many homes flattened. And for many New Zealanders, they struggle, whilst they absolutely can understand the desire to get rid of Hamas. They find it very difficult - the numbers of civilians who are being killed here. How do you reconcile that?  

Treister:      I think as a Kiwi, it's very hard to explain to Kiwis the conditions in the Middle East. See, New Zealand is an island state. There has never been a battle on New Zealand soil, or at least not in the past 100 years. And it is very, very hard to explain to a Kiwi what it's like to live with a neighbour who wants to kill him. And that's the condition in which we're here at the moment. Now, of course, we, you know, we're a Western civilisation and we are not interested in innocent people being killed, and that is not our intention. But unfortunately, Hamas is using the civilians of Gaza as a human shield. As you could see, the videos, that are published online constantly is using hospitals. Hospitals that by the way, some of them were built by Israel back in the day. It's using them as a shield against us. They hid the prisoners in the bottom of hospitals. What would you expect us to do?

Host:            I understand the arguments about human shields and I think New Zealand can appreciate that argument. What they struggle with is simply the vast number of civilians and women and children that are being killed, and that there should be more effort. More, I guess, restraint shown to prevent the loss of innocent lives. 

Treister:      I can tell you, that we are doing all that is possible. I don't think there is any other army around the world that has done what we have done. And just some examples, okay. Before attacking a building that has many civilians in it, oftentimes we fire a small, you know, small missile that hits the roof. And that way everyone in the building gets scared and leaves the building, and that way we can shell the building with something bigger. That's one example. That's something that I'm not familiar with in any other army around the world. And another thing is, is that we requested all the civilians living in the north part of Gaza to leave, and we did this for about, we gave them about a week's notice. We phone called them, we sent them letters. We did all that is possible to get them to leave. A lot of them left to the south, by the way. A lot of them left. Some of them didn't. Whether they decided to stay or whether they were forced to stay that is a good question, but I can promise you the IDF is doing all that it can in order to minimise the numbers of civilian casualties in this conflict. I can tell you, I can promise you that Hamas is not doing the same.  

The complaint

[3]  Muhammad Zaky alleged the broadcast breached the accuracy, discrimination and denigration, offensive and disturbing content, and balance standards of the Code of Broadcasting Standards in New Zealand, citing the following reasons:

Accuracy

• ‘“Hamas is using the civilians of Gaza as a human shield.” – There is no evidence of this claim, all the available videos and media articles show the intentional and deliberate targeting of civilians, houses, mosques, churches, hospitals and UN refugee camps in schools.’
• ‘“In 2005, we tried to give them their own country. We tried to start the so-called two state solution.” – There is no evidence of this claim, the available evidence shows the opposite and that Gaza and the West Bank are both under the full control of Israel, evidenced by the recent Israeli siege and the cut of electricity, water, medical supplies on Gaza, and the Israeli occupation of the West Bank.’
• ‘“The videos that are published online constantly is using hospitals.” – There is no evidence of this claim – even the published videos by IDF were criticised by CNN recently as they showed weapons being deliberately placed in the hospitals behind MRI machine that didn’t exist in initial footage when the reporters walked into the hospital.’
• ‘“Hospitals that by the way some of them were built by Israel back in the day is using them as a shield against us” – There is no evidence of this claim, Israel didn’t build any hospital in Gaza.’
• ‘“They hid the prisoners in the bottom of hospitals.” – There is no evidence of this claim, Israel didn’t find any prisoners in the bottom of any hospital.’
• ‘“Before attacking a building that had many civilians in it, oftentimes we fire a small, you know, small missile that hits the roof and that way everyone in the building gets scared and leaves the building and that way.” – There is no evidence of this claim, the available videos from both sides even IDF shows the carpet bombing of buildings, and the most recent available evidence shows a direct bombing of school used by the UN as a refugee camp and the killing of more than 300 innocent civilians and children.’
• The reporter failed to adequately challenge the interviewee on the veracity of his claims.

Discrimination and Denigration

• ‘The Israeli soldier made statements to portray and stereotype the Middle Eastern (and Middle-Eastern people implicitly) as well as Palestinians as savages who want to kill the Jews.’ This was a justification ‘for killing innocent civilians and children’.
• ‘The interview content may also be seen as contributing to an environment of hostility against specific ethnic groups, Palestinian and Middle Eastern.’

Offensive and Disturbing Content

• ‘The interview with the Israeli soldier, particularly his justifications for civilian deaths, caused significant distress to our Palestinian community members who have lost loved ones as a result of the Israeli indiscriminate killing of civilians in Gaza.’
• The discussion of ‘human shields’, which the reporter tacitly agreed with, is a racist trope that has been rejected by many human rights organisations.

Balance

• ‘The interview lacked a balanced perspective on a controversial issue’.
• ‘The interview with the soldier presented a singular perspective on the conflict in Gaza without providing equivalent time or consideration to contrasting viewpoints, particularly those from the Palestinian side or someone from Gaza.’

The broadcaster’s response

[4]  RNZ did not uphold the complaint for the following reasons:

Accuracy

• ‘The Israeli government has for decades consistently said, and attempted to prove, that Gaza is underpinned by a network of tunnels that enables Hamas militants to come and go, disappearing into civilian life and buildings. While the evidence for these claims is sometimes difficult to source, it is not misleading to report that some Israelis believe this and that it is central to the IDF’s strategy and tactics.’

Discrimination and Denigration

• ‘Nothing in this interview or the wider broadcast programme can be considered to encourage discrimination against any section of the community. Israeli commentators including Benjy Treister, other representatives of the Israel Defence Force, the Israeli Prime Minister and other politicians have for many years subscribed to and promulgated a view that Israel “lives next door to” a population that wants to attack and kill it. RNZ does not encourage that view but it is free to examine and evaluate it, journalistically.’

Offensive and Disturbing Content

• ‘RNZ is New Zealand’s public broadcaster/media organisation. Morning Report is RNZ’s main daily news and current affairs programme, which is aimed at an adult audience. Morning Report’s coverage of the war in Gaza includes a range of views and perspectives. The experience, views and opinions of a New Zealand Israeli fighting with the Israeli Defence Force are a legitimate area of journalistic enquiry, appropriate to the expectations of the audience. It is clear from the introduction and framing of this interview that it explores a single perspective on the war. This is not a surprise, or shocking or alarming to an adult news and current affairs audience.’

Balance

• ‘Morning Report devotes considerable time and resources to reporting the deaths, injuries and the displacement of Palestinians in Gaza. This coverage is balanced by reports and interviews that interrogate Israeli views of the conflict, some of which are quite pro-Palestinian and others that are not.’
• ‘The standard specifically allows for (5.4) interviews that are signalled as approaching an issue from a particular perspective. Such treatment does not constitute a breach of the standard.’

The standards

[5]  The purpose of the accuracy standard¹ is to protect the public from being significantly misinformed.² It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

[6]  The discrimination and denigration standard³ protects against broadcasts which encourage the discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief.

[7]  The purpose of the offensive and disturbing content standard⁴ is to protect audiences from viewing or listening to broadcasts that are likely to cause widespread disproportionate offence or distress or undermine widely shared community standards.⁵ The standard takes into account the context of the programme, and the wider context of the broadcast, as well as information given by the broadcaster to enable the audience to exercise choice and control over their viewing or listening.

[8]  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

[9]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[10]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.⁹

Accuracy

[11]  The harm that the complainant is concerned about is that the public may be misled by the following statements (which the complainant argues are not supported by any evidence):

• ‘Hamas is using the civilians of Gaza as a human shield.’
• ‘In 2005, we tried to give them their own country. We tried to start the so-called two state solution.’
• ‘The videos that are published online constantly is using hospitals.’
• ‘Hospitals that by the way some of them were built by Israel back in the day’
• ‘They hid the prisoners in the bottom of hospitals.’
• ‘Before attacking a building that has many civilians in it, oftentimes we fire a small, you know, small missile that hits the roof. And that way everyone in the building gets scared and leaves the building.’

Does the accuracy standard apply to the soldier’s statements?

[12]  The requirement for factual accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.¹⁰ An opinion is someone’s view; it is contestable, and others may hold a different view.¹¹ It is not always clear whether a statement is an assertion of fact or an opinion - this will depend on the context, presentation, and how a reasonable listener would perceive the information.¹² In assessing whether a statement was a statement of fact, or was analysis, comment or opinion, the following factors may be relevant:¹³

• the language used
• the type of programme
• the role or reputation of the person speaking
• the subject matter
• whether the statement is attributed to someone
• whether evidence or proof is provided.

[13]  In this case, each of the statements is expressed definitively. There are no ‘I think’ or ‘in my opinion’ qualifications. However, for the reasons below, we consider listeners are likely to interpret most of the statements as the soldier’s analysis, comment or opinion:

• The programme was an interview with a single soldier, rather than an in-depth investigatory piece featuring multiple interviewees or experts to establish facts.
• The interviewee was introduced as a Kiwi-Israeli soldier in the Israeli Defence Force. While a soldier might have first-hand knowledge of some of the matters mentioned (for example the use of small ‘warning’ missiles), the soldier does not purport to speak from personal experience, or about what he has himself witnessed (and we note two of the relevant matters were historical events).
• No evidence was provided for the interviewee’s claims. In one case he simply references videos ‘that are published online constantly’.
• The subject matter was the ongoing Israel-Hamas conflict. Listeners can be expected to understand the complexity and emotionally charged nature of this conflict as well as the challenges of obtaining accurate information in wartime situations.

[14]  A reasonable listener can therefore be expected to understand they are hearing a one-sided, partisan interpretation of the subject matter from an Israeli soldier’s point of view. We have made similar findings in the past concerning the presentation of a Palestinian perspective.¹⁴ For the reasons above, we consider the accuracy standard does not apply to most (if not all) of the relevant statements.

Did the broadcaster make reasonable efforts to ensure accuracy?

[15]  To the extent the soldier’s comments could be interpreted as statements of fact to which the standard applies, the Authority’s task is not to confirm their accuracy or inaccuracy.¹⁵ It is to assess whether the broadcaster has made reasonable efforts to ensure accuracy.

[16]  We have previously recognised the importance for broadcasters of striking a balance between informing the public and avoiding being used as a vehicle for propaganda.¹⁶ In this case, even if some of the soldier’s statements were unverifiable or ultimately prove incorrect, we are satisfied RNZ exercised reasonable efforts and struck the appropriate balance:

• In our view, there was no reason to suspect the soldier’s comments to be anything other than the soldier’s genuinely held perspectives and beliefs.
• Many of the statements were consistent with other reporting¹⁷ and would not be readily identified as false.

Freedom of expression

[17]  Finally, and importantly, the Israeli-Hamas conflict carries high public interest. There was accordingly a high public interest in an interview which questioned the Israeli military’s justification for the humanitarian cost of its military strategy. The interview offered an Israeli perspective on events and there is significant benefit in the public understanding the perspectives of both sides in a conflict. The free and frank expression of opinions is a hallmark of the right to freedom of expression and of critical importance when it comes to the broadcasting of news and current affairs. As outlined in paragraph [10] we may only intervene when limitation of the right to freedom of expression is justified by the level of harm likely to result from a broadcast. In this case, we have found no harm sufficient to outweigh the broadcaster’s right to freedom of expression.

[18]  For these reasons, we do not uphold the complaint under the accuracy standard.

Discrimination and Denigration

[19]  The discrimination and denigration standard protects against broadcasts that encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief. The standard only applies to recognised ‘sections of the community’, which is consistent with the grounds for discrimination listed in the Human Rights Act 1993.¹⁸ We consider Palestinian and Middle Eastern people to be relevant ‘sections of the community’ for the purposes of the standard.

[20]  The programme included the following comment from the interviewee: ‘it is very, very hard to explain to a Kiwi what it's like to live with a neighbour who wants to kill him. And that's the condition in which we're here at the moment.’ However, in the context of an interview about the current conflict with Hamas, we do not consider this comment, or other comments in the broadcast, would be reasonably regarded as directed at Palestinians, or at Middle Eastern people in general. We consider the comments are more readily interpreted as a reflection on the Hamas regime (which is not a ‘section of the community’ protected under this standard).

[21]  In any case, given the importance of freedom of expression, the standard is not intended to prevent the broadcast of material that is a genuine expression of serious comment, analysis or opinion.¹⁹ In the context of an interview of this nature, we consider any comments made constituted serious comment, analysis or opinion and would not have the impact of encouraging discrimination or ‘contributing to an environment of hostility’ as alleged.

[22]  On this basis, the standard was not breached.

Offensive and Disturbing Content

[23]  This standard regulates broadcasts that contain sexual material, nudity, violence or coarse language, or other material that is likely to cause offence or distress. The context in which content occurs and the wider context of the broadcast are relevant to assessing whether a broadcast has breached this standard.²⁰ Relevant factors in this instance include:

• Morning Report is a news and current affairs programme. News and current affairs programmes are not subject to classification.²¹
• Morning Report is aimed at an adult audience, and it is unlikely children would be listening unsupervised.²²
• The item included an introduction that made it clear the Israel-Hamas conflict would be discussed, and that a Kiwi-Israeli soldier would be interviewed, allowing the audience to exercise choice and control over their listening.
• An interview such as this was not outside the audience’s expectations for Morning Report, neither was a report on such subject matter.
• As outlined under ‘accuracy’ above, there is high public interest in reporting on this topic.

[24]  We acknowledge the complainant’s concerns (including regarding the discussion of ‘human shields’ and ‘justification for civilian deaths’). We also appreciate the complainant and their community may have found the content offensive. However, in the context above, we do not consider that the broadcast seriously violated community standards of taste and decency, or would have disproportionately offended or disturbed the audience of Morning Report. On this basis we do not uphold the complaint under this standard.

Balance

[25]  The Authority does not consider the balance standard was breached by the broadcast. Consistent with our previous decisions,²³ we consider the broadcast discussed a controversial issue of public importance (the issue of the ongoing Israel-Hamas conflict). Accordingly, the standard applies.

[26]  However, as we have previously determined regarding this issue, we consider the audience could reasonably be expected to be aware of significant viewpoints from other media coverage.²⁴ Further, the interview was clearly signalled as providing the perspective of Benjy Treister, rather than claiming to be a balanced examination of perspectives on the conflict.²⁵ Accordingly, we do not uphold the complaint under this standard.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
20 March 2024   

Appendix

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

1  Muhammad Zaky’s complaint to RNZ - 29 November 2023

2  RNZ's response to the complaint - 20 December 2023

3  Zaky’s referral to the Authority - 16 January 2024

4  RNZ providing further comments - 28 February 2024

5  Zaky confirming standards raised - 4 March 2024

6  Zaky’s further correspondence concerning social media campaign – 4-5 March 2024

¹ Standard 6, Code of Broadcasting Standards in New Zealand 
² Commentary, Standard 6, Code of Broadcasting Standards in New Zealand, page 16
³ Standard 4, Code of Broadcasting Standards in New Zealand
⁴ Standard 1, Code of Broadcasting Standards in New Zealand 
⁵ Commentary, Standard 1, Code of Broadcasting Standards in New Zealand, page 8
⁶ Standard 5, Code of Broadcasting Standards in New Zealand
⁷ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand, page 14
⁸ Guideline 5.1
⁹ Introduction, Code of Broadcasting Standards in New Zealand, page 4
¹⁰ Guideline 6.1
¹¹ See Buchanan and Discovery NZ Ltd, Decision No. 2022-087 at [10]
¹² As above
¹³ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand
¹⁴ See for example Anderson, The Auckland Jewish Council and Leverton and Television New Zealand Ltd, Decision No. 2003-028, 2003-029, 2003-030 at [68]
¹⁵ As above, following a similar approach
¹⁶ NT and Television New Zealand Ltd, Decision No. 2019-028 at [70]
¹⁷ See for example: Jonathan Landay and Kanishka Singh “US believes Hamas used Al Shifa Hospital but evacuated before Israeli operation- source” Reuters (online ed, 3 January 2024);  “Thousands trapped as Israeli forces raid Gaza’s al-Shifa Hospital” Al Jazeera (online ed, 15 November 2023); Julian Borger “IDF evidence so far falls well short of al-Shifa hospital being Hamas HQ” The Guardian (online ed, 18 November 2023); Dominic Waghorn “Israel presents most convincing evidence yet of Hamas military activity at Gaza's largest hospital” Sky News (online ed, 20 November 2023); “Former Israeli Prime Minister Ehud Barak on Israel's Al-Shifa hospital claims” CNN (online ed, 20 November 2023); Ruth Michaelson “‘Bombs are falling all around us’: fear in Gaza as Israel vows to tighten siege” The Guardian (online ed, 10 October 2023) See: ‘During past assaults, Israeli military forces routinely used a tactic they describe as “roof knocking”, in which a smaller explosive is dropped on a building as a warning for people to evacuate before it is destroyed. But reports from across the Gaza Strip suggested buildings were hit without either a warning or a message to those inside that their lives were in danger.’
¹⁸ Commentary, Standard 4, Code of Broadcasting Standards in New Zealand at page 12
¹⁹ Guideline 4.2
²⁰ Guideline 1.1
²¹ Guideline 1.4
²² Williamson and Television New Zealand Ltd, Decision No. 2022-010 at [11]
²³ See, for example, Maasland and Radio New Zealand Ltd, Decision No. 2018-065 at [13]
²⁴ See, for example, Lafraie and Discovery NZ Ltd, Decision No. 2023-114 at [14] and [18]
²⁵ Guideline 5.4