BSA: Gower’s opinion irrelevant to the truth.

Summary

[This summary does not form part of the decision.]
The Authority did not uphold a complaint that a comment made by Patrick Gower during a Newshub segment about the presence of the far right in New Zealand breached the accuracy standard. The Authority found that Mr Gower’s comment that ‘the global far-right is here in New Zealand, influencing us and our politicians whether we realise it or not’ was not a statement of fact to which the accuracy standard applies. The Authority found the statement was one of comment and political analysis, the type of which is common in news and current affairs broadcasts and which viewers would have understood to be Mr Gower’s conclusion based on the information presented in the item.

Not Upheld: Accuracy

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The broadcast

[1]   A Newshub segment discussed the presence of the far right in New Zealand. During the item Patrick Gower discussed Rt Hon Winston Peters being threatened by a ‘known far-right extremist’. Mr Gower also discussed National Party Leader Simon Bridges’ position on the Global Pact for Safe, Orderly and Regular Migration (the Pact) and comment from Martin Sellner, leader of the Austrian far-right group Identitäre Bewegung Österreich (Identitarian Movement of Austria), supporting Mr Bridges’ position was also included. Mr Gower concluded the segment by saying ‘the global far-right is here in New Zealand, influencing us and our politicians whether we realise it or not.’

[2]  The segment was broadcast on 1 July 2019 on Three. In considering this complaint, we have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The complaint

[3]  Max Shierlaw complained that the broadcast breached the accuracy standard of the Free-to-Air Television Code of Broadcasting Practice for the following reasons:

• Mr Gower’s concluding comment was inaccurate and no evidence was broadcast to support it.
• Mr Gower’s statement was clearly made in reference to Mr Bridges as it was preceded by references to Mr Bridges’ and the National Party’s position on the Pact.
• ‘Just because two people share the same opinion on a matter does not mean they were influenced by each other.’

The broadcaster’s response

[4]  Mr Shierlaw submitted that MediaWorks’ response to the complaint should not be considered by the Authority as it was received outside the Broadcasting Act’s 20 working day response timeframe. MediaWorks advised that the complaint had not been sent to the complaints team email address but to another email address (within MediaWorks) and they calculated the response time from the point it was received by the complaints team.

[5]  We find MediaWorks’ original response to Mr Shierlaw was sent outside of the required timeframe (and consider the onus is on the broadcaster to ensure that any complaints received by them are directed to the right person or persons). If the email’s misdelivery affected MediaWorks’ ability to meet the statutory response timeframe, it could have exercised its s 8(1D) right to an extension.

[6]  In any event, we note that the Authority is required to give both the complainant and the broadcaster a reasonable opportunity to make submissions to it in writing in relation to a complaint.¹ Therefore, in the interests of natural justice, we have considered MediaWorks’ response in the determination of this complaint.

[7]  MediaWorks submitted the broadcast did not breach the accuracy standard for the following reasons:

• Mr Gower’s statement was a statement of analysis and comment, therefore the accuracy standard does not apply.
• Mr Gower told MediaWorks his statement was referencing Mr Peters being threatened by ‘a known far-right extremist’, not Mr Bridges’ or the National Party’s position on the Pact.

The relevant standards

[8]  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.²

Our analysis

Freedom of expression and public interest

[9]  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.

[10]  It is an important role of journalists and the media in general to report on issues that widely affect New Zealand society and promote frank public discourse and discussion, which is an important feature of the right to freedom of expression and our democratic society.

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.³ Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’⁴ Programmes may be misleading by omission.⁵

[12]  The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.⁶ 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.⁷ 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: the language used in the statements and in the item as a whole; the type of programme; and the subject matter, such as whether the topic discussed is controversial.⁸

[13]  Taking into account the above factors, we find Mr Gower’s comment was not a statement of fact for the purposes of this standard. It was clear Mr Gower was expressing a value judgement about the far-right’s influence in New Zealand politics in light of information broadcast within the segment. This type of political analysis about controversial subjects such as the far-right is common in news and current affairs programmes and viewers would have understood the comment to be Mr Gower’s analysis and interpretation of the story.

[14]  Therefore the accuracy standard does not apply and we do not uphold the complaint.

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                 Max Shierlaw’s formal complaint – 2 July 2019

2                 MediaWorks’ response to the complaint – 22 August 2019

3                 Mr Shierlaw’s referral to the Authority – 23 August 2019

4                 MediaWorks’ confirmation of no further comment – 17 September 2019

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¹ Broadcasting Act 1989, Section 10(a)
² Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
³ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁴ Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
⁵ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁶ As above
⁷ Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 62
⁸ As above

BSA Decisions