Andrews & Murray and Radio New Zealand Ltd - 2020-153 (13 May 2021)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- Brodie Andrews and Sandra Murray
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand
[This summary does not form part of the decision.]
A number of news bulletins on Morning Report reported findings from fact-checking group First Draft about political spending on Facebook advertising in the lead-up to the 2020 General Election and referendums. Two complaints alleged the bulletins inaccurately reported pro-cannabis group Make It Legal NZ had misleading ads removed from Facebook. The Authority did not uphold the complaints, finding although the morning bulletins were misleading and the broadcaster did not make reasonable efforts to ensure the accuracy of those reports, a later news bulletin during Midday Report was sufficient to clarify and correct the misleading impression created earlier. The Authority also found Make It Legal was not treated unfairly, as it is a lobby group that could reasonably expect a level of public scrutiny, and it was given a fair and reasonable opportunity to respond to the morning news items.
Not Upheld: Accuracy, Fairness
 An RNZ news bulletin, repeated at least five times throughout Morning Report on 15 October 2020 (two days before the 2020 General Election and referendums), reported on recent findings from fact-checking organisation First Draft:
Dozens of misleading and false ads by local referendum lobby groups and fringe political parties have been removed from Facebook in the past two months. A fact checking organisation, First Draft, says the same ads are reappearing just days out from the election despite breaching standards. First Draft says some of the biggest spenders on ads, excluding the Electoral Commission and major parties, were the same groups that frequently had them removed. Groups such as pro-cannabis Make It Legal NZ, anti-euthanasia group Risky Law NZ and the Advance Party have been called the worst offenders.
 A later item on Midday Report the same day clarified the earlier reports and included comment from Sandra Murray on behalf of Make It Legal NZ (Make It Legal):
Reporter: The Make It Legal campaign says it has not been putting out false information and uses information from credible sources only. Fact-checking organisation First Draft says Facebook has removed misleading and false ads by local referendum lobby groups. It says the pro-cannabis campaign has not had any of its ads removed from the social media site, but that a lot of the content in its ads has been problematic and misleading. But Make It Legal denies that. Its campaign manager, Sandra Murray, says the group wants to hear from First Draft about what the misinformation is.
Murray: We’re not aware of any misinformation and we will take our facts and figures that we use from sources such as the Chief Science Advisor to the Prime Minister’s office. We’re very careful to check our sources.
 Sandra Murray and Brodie Andrews complained the morning news bulletins inaccurately reported Make It Legal was posting misleading information in its paid promotions on Facebook, and suggested some of these ads had been taken down, but recently re-posted.
 Ms Murray argued the item on Midday Report was also inaccurate:
First Draft did not accuse Make It Legal of putting out misinformation at all – and the organisation which was accused of misinformation… was not mentioned on either broadcast.
Make It Legal provided an email response from First Draft received the week after the broadcast, which said:
To the claim that we said Make It Legal was a repeat offender of Facebook ads being taken down with ads re-[e]merging, please note that [First Draft] was talking about [another organisation] repeating inaccurate claims, not Make It Legal.
 Mr Andrews argued the subsequent report on Midday Report was insufficient to correct the earlier story, including because many early morning listeners would have missed the midday news.
 Ms Murray also complained the broadcasts were unfair to Make It Legal, saying:
…this incident caused Make It Legal reputational damage just two days out from the election when they were campaigning in the cannabis referendum. The timing of the incident was unfortunate and harmful to the campaign. The [clip] was circulated on social media by our opponents and we received multiple negative comments on our social media pages.
 Ms Murray was concerned RNZ focused unfairly on Make It Legal even though there were other campaigns identified as ‘much worse for misinformation’.1
The broadcaster’s response
 RNZ did not uphold either complaint:
- ‘Nothing in this story would have misled our audience.’ First Draft published statements which said (in reference to advertising spending on Facebook outside of political parties and the Electoral Commission): "….The top spend is Make It Legal NZ, a page campaigning for the legislation of cannabis. Make It Legal NZ has spent over $101,000 on 456 ads, many of which have misleading content.”
- First Draft was accurately ‘quoted as saying that statements made by “Make It Legal” in their Facebook advertising [were] problematic and misleading. Where there may have been some confusion arise is that the quotes attributed to [First Draft] were contained in an item which also stated that “…Facebook has had to take down dozens of misleading and false ads from referendum lobby groups and fringe political parties in the past two months.”’
- ‘The matter was clarified to the satisfaction of “Make It Legal” in the Midday News bulletin’ and ‘as any confusion was quickly addressed on air at the time’ the complaint was not upheld.
- In addition, RNZ ensured none of the morning news reports were made available online, to avoid repeating any confusion.
 The purpose of the accuracy standard2 is to protect the public from being significantly misinformed.3 It states broadcasters should make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.
 The fairness standard4 protects the dignity and reputation of those featured in programmes.5 It ensures individuals and organisations are dealt with justly and fairly and protected from unwarranted damage.
 We have listened to five bulletins from Morning Report as well as the later Midday Report item, and read the correspondence listed in the Appendix.
 The right to freedom of expression is an important right in a democracy and it is our starting point. When we determine a complaint, our task is to weigh the right to freedom of expression and the value and public interest in the programme, against the harm potentially caused by the broadcast(s). We may only intervene and uphold a complaint where the level of harm warrants placing a reasonable and justified limit on the right to freedom of expression.
 Looking first at the value of these programmes, we note the broadcasts carried public interest given the subject matter and the proximity to the referendum, meaning ensuring accuracy was important. However, the likelihood of harm in terms of influencing the referendum was reduced, given the wealth of other coverage and information available to the public, the online presence and resources available to Make It Legal to promote its position, and the high voter turn-out during the advance voting period.
 Overall, we have not found actual or potential harm that justifies regulatory intervention or upholding either complaint.
 Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programmes contained an inaccurate ‘material point of fact’, or were misleading. In this instance we are concerned with the second aspect; that is whether the programmes were ‘misleading’. Being ‘misled’ is defined as being given a ‘wrong idea or impression of the facts’.6
 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.7 In the event a material error of fact has occurred, broadcasters should correct it at the earliest appropriate opportunity.8
Were the programmes misleading?
 The complainants are concerned the programmes wrongly gave the impression Make It Legal had been publishing misleading content, and had ads removed from Facebook which it had continued to republish.
 On listening to the Morning Report news bulletins, we agreed they were likely to leave listeners with the impression Make It Legal, along with two other organisations, was one of the ‘worst offenders’ with ‘dozens of misleading and false ads’ removed from Facebook and then reappearing online. As acknowledged by RNZ, this was a result of the way separate ideas were combined within the items; the ‘biggest spenders’ on advertising were reported immediately alongside the statement that some of those were also the ‘worst offenders’ when it came to having misleading content taken down. It was clarified in the Midday Report item, on behalf of First Draft, that Make It Legal had not in fact had any ads removed on Facebook. Therefore we find the morning news bulletins were misleading by creating that impression.
 We did not find any issue of accuracy with respect to Midday Report. It was not inaccurate or misleading to report First Draft had found some of Make It Legal’s ads were ‘problematic and misleading’. The comments from First Draft provided by Ms Murray (paragraph  above) only addressed ads being taken down and re-emerging. The broadcaster relied on a quote from First Draft, ‘Make It Legal NZ has spent over $101,000 on 456 ads, many of which have misleading content’. It was also publicly reported elsewhere that First Draft found Make It Legal produced some ads which were misleading.9 In any event, Make It Legal’s position in response – that ‘it has not been putting out false information’ – was stated upfront at the beginning of the item. Therefore, we do not uphold the accuracy complaint in relation to Midday Report.
Did the broadcaster make reasonable efforts to ensure the programmes were not misleading?
 As we have said, by combining two distinct ideas attributed to First Draft (those who were the ‘biggest spenders’ on advertising, and those who were the ‘worst offenders’ for having misleading content removed), RNZ conflated Make It Legal, who First Draft later confirmed did not have ads removed, with the other big spenders who did have ads removed.
 Statements such as ‘First Draft says some of the biggest spenders on ads, excluding the Electoral Commission and major parties, were the same groups that frequently had them removed’ were qualified to a limited extent by referring to ‘some’, but reasonable listeners would have understood follow-up statements like ‘Groups such as pro-cannabis Make It Legal NZ… have been called the worst offenders’ to mean those worst offenders had ads removed and were not simply posting misleading information.
 The key question, in our view, is whether the later Midday Report item sufficiently clarified and corrected the misleading impression created by the earlier morning items.
 Taking into account the following factors, we found this item was sufficient to clarify the earlier bulletins and the broadcaster met its obligation to make ‘reasonable efforts’ to ensure accuracy overall:
- The midday news bulletin directly responded to the earlier bulletins, including Make It Legal’s denial of the claims.
- It led with the statement, ‘The Make It Legal campaign says it has not been putting out false information and uses information from credible sources only.’
- The item also clearly stated (attributed to First Draft) that Make It Legal had not had any ads removed.
- RNZ ensured the morning bulletins weren’t available online, so any misleading impression created was not repeated or causing ongoing harm.
 We also considered the likelihood of harm was reduced, and the morning news bulletins were unlikely to have a material impact on the Make It Legal referendum campaign, given:
- The items were broadcast two days before the 2020 General Election, by which stage advance voting had been open for 11 days with 1,565,056 votes cast,10 being 54% of total votes cast (2,894,486).11
- Make it Legal was well-resourced and its level of presence and advertising spend on Facebook arguably meant it also had the resources to further respond and promote its own position in the remaining two days before Election Day.
- There was extensive coverage of the referendum on cannabis legalisation in the lead-up to the Election meaning a wealth of information was available to audiences on ‘vote yes’ and ‘vote no’ viewpoints.
 In these circumstances we have not found harm that justifies limiting the right to freedom of expression, and we do not uphold the complaints under the accuracy standard. The midday news bulletin adequately made up for what was broadcast earlier by correcting and re-balancing the morning news within reasonable proximity, and by giving Make It Legal a right of reply.
 A key principle of the fairness standard is that where an individual or organisation might be adversely affected by a broadcast, they should usually be given a fair and reasonable opportunity to comment (what is ‘fair and reasonable’ will depend on the circumstances).12 The Codebook and past Authority decisions also recognise the nature of the individual or organisation (among other factors) are relevant to assessing what is fair; for example, there will usually be a higher threshold for finding unfairness to a public figure or organisation, as opposed to an ordinary person with little or no media experience.13
 We found overall Make It Legal was not treated unfairly and was given a fair and reasonable opportunity to respond to the story:
- The subject matter of the items carried public interest in the lead-up to the General Election and referendums.
- By their nature, lobby groups seek publicity for their cause.
- Similar to politicians and political parties,14 lobby groups can reasonably expect to be subject to media scrutiny, and have avenues for responding (for example, as mentioned under accuracy, Make It Legal’s significant advertising expenditure and social media presence).
- Make It Legal’s position and comments in response were the leading focus of the midday news item which was sufficient to constitute a ‘fair and reasonable opportunity to comment’ on the earlier items. Although its response was not presented in the morning items, it was broadcast within reasonable proximity and directly responded to the claims raised.
- This right of reply in the midday broadcast was also sufficient to address Make It Legal’s concern it was ‘unfairly singled out’ despite other groups being ‘worse’ offenders.
- Overall, the likelihood of actual harm to Make It Legal’s reputation was minimal, especially given the right of reply, RNZ’s steps to ensure the morning items were not available online after the original broadcasts, and the factors noted in paragraph .
 In these circumstances we have not found actual or potential harm under the fairness standard that warrants regulatory intervention or limiting the right to freedom of expression. We do not uphold the fairness complaint.
For the above reasons the Authority does not uphold the complaints.
Signed for and on behalf of the Authority
Judge Bill Hastings
13 May 2021
The correspondence listed below was received and considered by the Authority when it determined this complaint:
Brodie Andrews’ complaint
1 Brodie Andrews’ formal complaint – 17 October 2020
2 RNZ’s response to the complaint – 30 October 2020
3 Mr Andrews’ referral to the Authority – 4 November 2020
4 RNZ’s comments on the referral – 14 December 2020
5 Mr Andrews’ final comments – 18 December 2020
Sandra Murray’s complaint
6 Sandra Murray’s formal complaint – 28 October 2020
7 RNZ’s response to the complaint – 7 December 2020
8 Ms Murray’s referral to the Authority – 17 December 2020
9 RNZ’s confirmation of no further comments – 10 February 2021
10 RNZ confirming no further related news bulletins after midday – 23 March 2021
1 With reference to Jihee Junn “Analysis: The online ad campaigns fought over the weed and euthanasia referendums” The Spinoff (online ed, New Zealand, 9 November 2020)
2 Standard 9 of the Radio Code of Broadcasting Practice
3 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
4 Standard 11 of the Radio Code of Broadcasting Practice
5 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
6 Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
7 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
8 Guideline 9c
9 See, for example, Jihee Junn “Analysis: The online ad campaigns fought over the weed and euthanasia referendums” The Spinoff (online ed, New Zealand, 9 November 2020)
10 Electoral Commission “Advance Voting Statistics for the 2020 General Election” (see Cumulative Advance Votes for 14 October) <www.elections.nz>
11 Electoral Commission “Voter Turnout Statistics for the 2020 General Election” <www.elections.nz>
12 Guideline 11d
13 See Commentary: Fairness, Broadcasting Standards in New Zealand Codebook. Also see, for example, Newton and Television New Zealand Ltd, Decision No. 2020-137 from .
14 As above