Cape and MediaWorks TV Ltd - 2018-018 (21 May 2018)
- Peter Radich (Chair)
- Wendy Palmer
- Te Raumawhitu Kupenga
- Paula Rose QSO
- Christopher Cape
ProgrammeThe AM Show
BroadcasterMediaWorks TV Ltd
[This summary does not form part of the decision.]
The first segment of The AM Show’s daily panel, featuring panel guests Dr Don Brash and Newshub reporter Wilhelmina Shrimpton, discussed Dr Brash’s views on the use of te reo Māori in New Zealand, specifically in RNZ broadcasting without translation. The Authority did not uphold a complaint that this panel discussion lacked balance and was unfair to Dr Brash. The Authority found that, while the panel discussion was robust and Dr Brash’s opinion was tested by the panel, Dr Brash was given a fair and reasonable opportunity to present his point of view in the time allowed. Given the level of public interest in the issue discussed, Dr Brash’s position as a public figure and his experience with the media, the Authority found that the panel discussion did not result in Dr Brash being treated unfairly and viewers would not have been left misinformed as to his position on the issue.
Not Upheld: Fairness, Balance, Good Taste and Decency, Discrimination and Denigration
 The first segment of The AM Show’s daily panel, featuring panel guests Dr Don Brash and Newshub reporter Wilhelmina Shrimpton, discussed Dr Brash’s views on the use of te reo Māori in New Zealand, specifically in RNZ broadcasting without translation. The panel later went on to discuss other topics such as the ‘internet of things’, among others.
 Christopher Cape complained about the treatment, both visual and verbal, of Dr Brash during this panel discussion, submitting that the discussion lacked balance and was unfair to Dr Brash.1
 The issues raised in Mr Cape’s complaint are whether the broadcast breached the fairness, balance, good taste and decency and discrimination and denigration broadcasting standards. As Mr Cape has referred to visual elements of the panel discussion, we have assessed his complaint under the Free-to-Air Television Code of Broadcasting Practice.2
 The item was broadcast at 8.30am on Three on 29 November 2017. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Was any individual or organisation taking part or referred to in the broadcast treated unfairly?
 The fairness standard (Standard 11) 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.
The parties’ submissions
 Mr Cape submitted:
- Dr Brash’s view was not acknowledged or examined to the degree it should have been.
- His primary point (that when te reo is used it should be broadcast with translation) was ignored and overridden, as the panel focused on the implied or assumed criticism of te reo per se.
- Dr Brash was prevented from expanding on his point of view by interruptions from Mr Garner and was treated with disrespect.
 MediaWorks submitted:
- The discussion about Dr Brash’s views was robust, featuring Mr Garner’s trademark irreverence and humour, but Dr Brash was treated fairly throughout.
- Dr Brash is a high-profile public figure who is vastly experienced at dealing with the media and who contributed enthusiastically to the panel discussion.
 When we determine a complaint alleging a breach of broadcasting standards, we first consider the right to freedom of expression. We weigh the value of the broadcast, as well as the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused by the broadcast.
 We consider this broadcast had high value in terms of the right to freedom of expression. The panel discussion, though brief, referred to a topical and legitimate issue, about which people in the New Zealand community will hold a variety of views. Given the importance of this subject matter and Dr Brash’s position as a public figure, we consider there was a high level of public interest in this discussion and viewers were entitled, as part of the right to freedom of expression, to hear the panel’s differing points of view on the matter.
 In assessing the level of harm alleged to have been caused by the broadcast, we note the Authority has consistently recognised that the threshold for finding a breach of the fairness standard in relation to politicians or public figures is higher than for a lay person or someone unfamiliar with dealing with the media.3 We acknowledge that this was a robust discussion and that Dr Brash’s views were tested by the panel, particularly by Mr Garner. However, in our view this did not result in Dr Brash being treated unfairly and we do not think any harm was caused which outweighed the value in the item. Nor do we consider that the visual presentation of the broadcast caused any unfairness.
 Dr Brash was given a reasonable opportunity during this segment to communicate his point of view. He was able to articulate his reasons for holding this view, largely uninterrupted for the first part of the discussion, and present these comprehensively (in the time allocated). Dr Brash clearly stated numerous times the connection between his views and the fact that the broadcast of te reo on RNZ is not translated and explained. Any criticism expressed during the broadcast was directed at Dr Brash’s opinion on the subject, and did not stray into personal abuse.4
 We therefore do not uphold this aspect of Mr Cape’s complaint.
Was the panel discussion sufficiently balanced?
 The balance standard (Standard 8) states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest. The standard exists to ensure that competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.
The parties’ submissions
 Mr Cape submitted:
- The interview lacked balance and was biased, and viewers would have been misled as a result.
- Dr Brash’s stance (that when te reo Māori is used in broadcasts it should be translated into English) was misrepresented as ‘separatist’.
- The body language of Mr Richardson and Ms Gillies (arms folded), implied they were defensive and uncomfortable.
 MediaWorks submitted:
- Dr Brash’s view on the use of te reo in broadcasting was a controversial issue of public importance which was discussed during the segment.
- Dr Brash’s comments on te reo formed only one part of the panel discussion, which did not purport to be a balanced or in-depth discussion of the issue.
- In any event, the broadcast included a range of significant viewpoints, namely from Dr Brash, who expressed his opinion comprehensively in the context of what was a relatively brief discussion, along with alternative viewpoints from Mr Garner and Ms Shrimpton.
 A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.5
 The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.6 A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.7
 We have noted above that this broadcast carried a high level of public interest. We agree that the use of te reo in broadcasting amounts to a controversial issue of public importance, which was discussed during this segment and therefore triggered the requirements of the standard.
 However, we consider that Dr Brash was given adequate time, in the context of a short segment during a wider panel discussion, to present his point of view on RNZ’s use of te reo without translation. He was also given sufficient time to answer questions put to him by the panel. Devil’s advocate questioning and opinions from Ms Shrimpton and the presenters ensured alternative views to Dr Brash’s were also put forward during the segment.
 Dr Brash’s point of view was also available to audiences in surrounding media coverage, along with similar points of view regarding the use of te reo, within the period of current interest.8
 We therefore do not uphold the balance complaint.
Did the broadcast breach any other broadcast standards?
 In his complaint referral, Mr Cape also raised the good taste and decency (Standard 1) and discrimination and denigration (Standard 6) standards. We set out below our reasons for finding that these standards were either not applicable, or were not breached.
Good Taste and Decency
 Mr Cape submitted that Mr Garner’s approach during this segment was aggressive and accusatory, and Mr Garner and Ms Shrimpton could be seen smirking and sniggering during the discussion. This resulted in a lack of objectivity and respect for Dr Brash, as well as the ‘belittling’ of an important issue.
 MediaWorks submitted that the discussion was well within audience expectations of a news and current affairs programme, which often features robust discussion and the expression of strongly held viewpoints. The broadcast did not contain any material usually considered under the standard and was unlikely to have caused widespread offence or distress.
 We did not identify any smirking or sniggering by the presenters or other panel members during this discussion. At one point, in response to a remark made by Mr Garner (after he asked Dr Brash whether he had an objection to hearing ‘the odd word’ in te reo, Mr Garner replied ‘kia ora’), Ms Shrimpton smiled. This was in response to Mr Garner and was not at Dr Brash’s expense. All members of the panel discussion came across as respectful of each other and of the opinions put forward.
 While the panel discussed a potentially challenging issue in a robust way, we do not consider it was likely to cause widespread undue offence or distress or undermine widely shared community standards at a level requiring our intervention or the restriction of the right to freedom of expression.
 We therefore do not uphold the complaint under Standard 1.
Discrimination and Denigration
 In relation to this standard, Mr Cape submitted that Dr Brash was depicted by inference as representing the views of white, male, ‘conservative’ members of society, whose ‘ways were outdated’. This was discriminatory and defamatory.
 MediaWorks submitted that Dr Brash’s views were presented as his own and there was no suggestion of his views being representative of a wider group. Further, the broadcast fell within the category of ‘genuine expression of serious comment, analysis or opinion’, and was therefore not in breach of the standard.
 There was no suggestion during this broadcast that Dr Brash’s opinion was representative of ‘outdated’ or ‘conservative’ views, and we agree that his views were presented as his own. In any event, neither Dr Brash nor people who hold the same views, or people who may be considered to hold ‘conservative’ or ‘outdated’ views, are sections of the community to which this standard applies.
 As such, we do not uphold this aspect of Mr Cape’s complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
21 May 2018
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Christopher Cape’s formal complaint – 21 December 2017
2 MediaWorks’ response to the complaint – 8 February 2018
3 Mr Cape’s referral to the Authority – 15 February 2018
4 MediaWorks’ confirmation of no further comment – 7 March 2018
1 Mr Cape also made a similar complaint about an interview with Dr Brash on RNZ National, which was not upheld by the Authority: Cape and Radio New Zealand Ltd, Decision No. 2018-013
2 The AM Show is also broadcast on radio, on RadioLIVE. Therefore the radio broadcast of the programme is subject to the standards in the Radio Code of Broadcasting Practice.
3 See, for example, Holland and MediaWorks TV Ltd, Decision No. 2017-048
4 As we have noted above, the fairness standard does not prevent the criticism of public figures. In previous decisions, the Authority has recognised that it is an essential element of free speech that even the most trenchant criticism of public figures, in their professional capacity, be allowed. The question is whether such criticism overstepped the boundaries of fairness and strayed into personally abusive territory (see, for example, Bolster and Latimer and Television New Zealand Ltd, Decision No. 2010-186 at -).
5 Guideline 8a
6 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
7 As above
8 See, for example: https://www.odt.co.nz/opinion/haere-mai-everything-far-ka-pai (Otago Daily Times, 24 November 2017), http://www.newshub.co.nz/home/new-zealand/2017/11/don-brash-infuriated-by-reporters-speaking-te-reo.html (Newshub, 27 November 2017)