Bowkett and Discovery NZ Ltd - 2020-103 (21 December 2020)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- Stephen Bowkett
BroadcasterDiscovery NZ Ltd T/A Warner Bros. Discovery
[This summary does not form part of the decision.]
The Authority has not upheld a complaint regarding the question ‘How can anyone trust anything that you say?’ put to Dr Ashley Bloomfield, Director-General of Health, following the positive tests of two women who were released from managed isolation on compassionate grounds. Dr Bloomfield’s answers to the question (which was posed twice) were shown on-air. Viewers would not have been left with an unduly negative impression of him. As a public health official he is reasonably subject to robust scrutiny, especially during a pandemic. The fairness standard was accordingly not breached and the remaining standards did not apply.
Not Upheld: Fairness, Accuracy, Balance, Discrimination and Denigration
 On 18 June 2020 Newshub Live at 6pm gave an update on the COVID-19 situation in New Zealand:
A Pandora's box of COVID botch-ups spilled open today. National MP Michael Woodhouse claims only half of people in quarantine have been tested. His boss, Todd Muller, called for the sacking of the health minister over the release of two women [from managed isolation] who tested positive this afternoon…Air Commodore Digby Webb, brought in by the Prime Minister to sort out our quarantine problems, has already been doing the job for four weeks, so he was actually the boss during the fiasco. By the way, New Zealand has a third case and an epidemiologist says it's likely there are people in our community with COVID-19.
 The item explored the political fallout from the two women’s release and included questions put to Dr Ashley Bloomfield, Director-General of Health, at that day’s press conference:
Dr Bloomfield: I know that the case of these two women will have upset people and shaken people's confidence. I've certainly been upset by it, and I apologise that we've ended up in this position.
Tova O’Brien: The Director-General of Health forced to correct the record after insisting the two women who were granted compassionate leave drove from Auckland to Wellington with no toilet, food or petrol stops and saw no one, stating it as a fact on Tuesday afternoon.
Dr Bloomfield: They then drove together all the way to Wellington and had no contact with anybody else during that trip.
Ms O’Brien: How can anyone trust anything that you say?
Dr Bloomfield: Well, I hope that people will trust what I say.
Ms O’Brien: You stated as fact what these women were telling you. It was wrong. So why should we trust anything that you say?
Dr Bloomfield: Because on Tuesday, that was the full extent of the information I had.
 Stephen Bowkett complained2 the question, ‘How can anyone trust anything that you say?’ was inherently disrespectful, personally insulting and openly hostile. It was not ‘searching for genuine information’ and was unfairly directed at ‘an interviewee who has been stating what they believe to be the truth’. He raised the fairness, discrimination and denigration, accuracy and balance standards.
The broadcaster’s response
 The broadcaster did not uphold the complaint for the following reasons:
- It is the role of the media to question and hold the government to account, ‘particularly in times of distress such as a global pandemic’.
- The questions did not go ‘beyond the level of robust scrutiny that the Director-General of Health could reasonably be expected to respond to in the face of the systemic failures being reported that day’.
- ‘It is well established that the threshold for finding a breach of the fairness standard in relation to public figures and politicians…is higher than for a layperson or someone unfamiliar with the media.’
- ‘[Dr Bloomfield] was provided with ample opportunity to respond to the question. He ably answered the questions put to him, explaining that the information he had provided the public was the full extent of information that he had been given at the time.’
- Ms O’Brien provided Dr Bloomfield with ‘the opportunity and platform to explain himself to the New Zealand public, which he did’.
- ‘Arguably the question and its answer served to put New Zealanders' minds at ease during a time when there were crucial mistakes being reported with the quarantine system.’
The relevant standard
 The fairness standard is most relevant to the complaint. Accordingly, we focused our determination on that standard. We briefly address the remaining standards at paragraph  below.
 The fairness standard protects the dignity and reputation of those featured in programmes.3 It requires broadcasters to deal fairly with any person or organisation taking part or referred to in any broadcast.
 We viewed a recording of the broadcast and read the correspondence listed in the Appendix.
 Our task is to weigh the value of the programme, in terms of the right to freedom of expression and the public interest in it, against the level of actual or potential harm caused by the broadcast. The harm alleged is hostility and disrespect towards Dr Bloomfield.
 For the reasons below, we have not found actual or potential harm which would warrant limiting the right to freedom of expression.
 Individuals and organisations have the right to expect they will be dealt with justly and fairly and protected from unwarranted damage.4 A consideration of what is fair depends on the nature of the programme and the context, as well as the nature of the individual or organisation referred to. Dr Bloomfield was treated fairly, taking into account the following factors:5
- Dr Bloomfield is a high profile public servant, Chief Executive of the Ministry of Health and Director-General of Health, who has been the subject of frequent media coverage and commentary. He can reasonably expect to have his actions scrutinised.
- The question ‘How can anyone trust anything you say?’ asked twice, and shown with Dr Bloomfield’s responses, would not have resulted in viewers being left with an ‘unduly negative’ impression of him.
- The programme and Ms O’Brien’s questioning carried public interest and value in terms of free speech, by scrutinising issues surrounding COVID-19 and the nation’s recovery.
 We therefore do not uphold the complaint under the fairness standard.
The remaining standards
 The remaining standards raised in the complaint are either not applicable, or have not been breached, for the following reasons:
- The accuracy standard applies to statements of fact6 and matters which are misleading. It cannot apply to the question posed by Ms O’Brien.
- The balance standard only applies to discussions of controversial issues of public importance.7 It does not apply to a question of this nature which, in any event, was answered, incorporating Dr Bloomfield’s perspective.
- The discrimination and denigration standard only applies to recognised sections of the community.8 It does not apply in respect of Dr Bloomfield as an individual.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
21 December 2020
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Stephen Bowkett’s original complaint – 18 June 2020
2 MediaWorks’ decision – 14 July 2020
3 Mr Bowkett’s second complaint (raising balance standard) – 14 July 2020
4 Mr Bowkett’s first attempted referral to the Authority – 11 August 2020
5 MediaWorks’ to BSA explaining second complaint – 12 August 2020
6 MediaWorks’ second decision – 21 August 2020
7 Mr Bowkett’s referral to the Authority – 21 August 2020
8 MediaWorks’ confirmation of no further comments – 10 September 2020
1 Discovery NZ Limited was previously known as MediaWorks TV Limited.
2 Mr Bowkett’s complaint departed from the standard process. He initially complained to the broadcaster under fairness, discrimination and denigration and accuracy; after receiving the decision he submitted a new complaint raising the balance standard. There was no difference in the substance of both complaints. We have considered both in this decision.
3 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
4 As above
5 As above
6 Guideline 9a
7 Guideline 8a
8 Guideline 6a