Diprose and Television New Zealand Ltd - 2017-067 (16 November 2017)
- Peter Radich (Chair)
- Te Raumawhitu Kupenga
- Paula Rose QSO
- Jason Diprose
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
An item on Seven Sharp discussed the UK’s move to ban the sale of petrol and diesel cars by 2040, to encourage the use electric vehicles (EVs). Following the item, presenter Mike Hosking outlined the ‘hurdles’ to be overcome before a similar move could be made in New Zealand, stating that there was ‘no charging network’ in New Zealand and that the cost of EVs was ‘too high’. The Authority did not uphold a complaint that Mr Hosking’s statements were inaccurate and misleading. Noting that the accuracy standard does not apply to statements of analysis, comment or opinion, the Authority found that, in this case, Mr Hosking’s statements on the cost-effectiveness of EVs, and the lack of charging network in New Zealand, represented his own opinion and analysis on the topic, which viewers would not have expected to be authoritative. While the complainant may have disagreed with Mr Hosking’s views, the Authority found that these were opinions which were open to Mr Hosking to express, noting that the free and frank expression of opinions is an important aspect of the right to freedom of expression.
Not Upheld: Accuracy
 An item on Seven Sharp discussed the UK’s move to ban the sale of petrol and diesel cars by 2040, to encourage the use of electric vehicles (EVs). Following the item, presenter Mike Hosking outlined the ‘hurdles’ to be overcome before a similar move could be made in New Zealand, stating that there was ‘no charging network’ in New Zealand and that the cost of EVs was ‘too high’. Co-presenter Toni Street then remarked, ‘Of course you’re coming from a biased position, because you are one of these men that gets their jollies out of petrol, aren’t you?’
 Jason Diprose complained that the statements made by Mr Hosking, regarding the cost-efficiency of EVs and the lack of charging network in New Zealand, were inaccurate. He argued that the scale of New Zealand’s EV charging network could not be easily determined (taking into account the ChargeNet network1, other available public charging stations and the ability for users to charge EVs at home), and that the total cost of ownership of an EV was substantially lower than for petrol or diesel-run cars.
 The issue raised in Mr Diprose’s complaint is whether the broadcast breached the accuracy standard of the Free-to-Air Television Code of Broadcasting Practice.
 The programme was broadcast on 27 July 2017 on TVNZ 1. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Nature of the programme
 Seven Sharp is a current affairs and entertainment programme which departs from the orthodox news and current affairs model, in that it often applies a non-traditional, light-hearted or comedic treatment to serious issues.2 Additionally, the programme presenters are known to offer their own views and opinions on a wide range of topics, including in their ‘final word’ segments which feature at the end of each episode.3
 In the present case, the item featured a pre recorded segment following a reporter as he interviewed various people in New Zealand about the move to EVs. The reporter interviewed a leading EV seller, a representative of the Automobile Association, and a supporter of V8 engines.
 Following the pre-recorded item, in the studio Mr Hosking outlined what he believed to be the hurdles to be overcome before New Zealand could move to ban the sale of petrol and diesel cars by 2040. He said:
Now our Government today, not surprisingly, told us it is not, not following Britain and like most other countries never will. Why? Well, there’s a whole bunch of hurdles, the cost of EVs, electric vehicles, is too high, of course, to bring them down you need subsidies as you saw in the piece, well who pays for those for goodness’ sake?
There is no charging network. To produce one you need subsidies, who pays for that? The cost of oil can barely get above 50 bucks a barrel these days, actually running a car on petrol is actually cost-effective and people like things – think about it – that are cost-effective, which ironically is why the electric vehicle never took off in the first place, which of course is the ultimate irony in this whole debate.
People think the electric vehicle is in fact new – it is not. They toyed with them a hundred years ago but they worked out that if you take 70 litres of petrol and you make it fuel a car for 1,000 kilometres why wouldn’t you do it, and that basic formula not only hasn’t changed, it’s actually improved.
Not to say that it won’t ever happen of course but for now the tipping point for electric vehicles, which is the critical part of all of this, is still many, many years away.
 As noted in paragraph , the segment concluded with a comment in response from Ms Street, who said to Mr Hosking, ‘Of course you’re coming from a biased position, because you are one of these men that gets their jollies out of petrol, aren’t you?’
Was the broadcast inaccurate or misleading?
 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.
 Guideline 9a to the standard states that the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.
The parties’ submissions
 Mr Diprose submitted that:
- Mr Hosking’s statements, that EVs were not cost-effective and that there was no charging network in New Zealand, were inaccurate.
- ChargeNet was not the only provider of public charging stations in New Zealand. Public charging was available through other providers (shown on the Plugshare app),4 and EVs were able to be charged at home. This, and the fact that the number of charging stations was growing substantially, made it difficult to easily determine the exact scale of New Zealand’s charging network.
- The total cost of ownership of an EV over the lifespan of an average New Zealand car showed EVs represented a total cost saving of around $32,000 over an equivalent internal combustion vehicle (accounting for initial purchase, ongoing running costs and maintenance costs).
 TVNZ submitted that:
- It did not agree that the statement ‘there is no charging network’ was inaccurate. At the time of writing (August 2017), ChargeNet had 32 chargers connected to the nationwide network, with 50 active stations. It aimed to have 100-105 charging stations in place by the end of 2018, but advised it ‘cannot in the short term place our DC Fast Chargers in every town/suburb in NZ’. In contrast, in 2012 it was reported that there were 1,070 manned petrol stations in New Zealand.
- While Plugshare was a useful tool, its numbers were not substantiated and included residential chargers. The issue of whether EVs could be charged in the home was not discussed by Mr Hosking and was not the same issue as whether a charging network was available.
- Analysis by Bloomberg New Energy Finance predicted that ‘the total cost of ownership – combining purchase price and running costs – of battery-only cars will dip below those with internal combustion engines in 2022, even if the conventional cars improve their fuel efficiency by 3.5% a year’.5
- Mr Hosking’s comments were clearly his opinion and his position on the issue was outlined by Ms Street when she noted that he came from a ‘biased position’. While EVs had benefits outside the cost discussion, it did not consider Mr Hosking’s comments were misleading in the context of the discussion.
 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. We may only interfere and uphold complaints where the resulting limitation on the right to freedom of expression is reasonable and justified.6 Our task is to weigh the value of the programme and the importance of freedom of expression, against the level of actual or potential harm that may be caused by the broadcast. In this case, Mr Diprose has complained that Mr Hosking’s statements about EVs were inaccurate and misleading, and would have impacted on viewers’ understanding of EVs and how they operate.
 The accuracy standard applies only to material points of fact in news, current affairs and factual programming. Therefore the first question is whether Mr Hosking’s comments (taking each separately and then together), amounted to material points of fact, or whether they were distinguishable as analysis, comment or opinion, rather than statements of fact.7
 A fact is verifiable: it is something that can be proved right or wrong, while an opinion is someone’s view: it is contestable, and others may hold a different view.8 In determining whether a statement is fact or opinion, the following factors are relevant:9
- the language used in the statement
- the language used in the rest of the item (there could be a statement of fact within an opinion piece or surrounded by opinions)
- the type of programme and the role or reputation of the person speaking
- the subject matter
- whether evidence or proof is provided
- whether the statement is attributed to someone.
 In this case, we consider the statements by Mr Hosking at issue are:
(i) ‘…there’s a whole bunch of hurdles, the cost of EVs, electric vehicles, is too high, of course, to bring them down you need subsidies…’
(ii) ‘…There is no charging network – to produce one you need subsidies, who pays for that?’
 Having given careful consideration to Mr Hosking’s statements, the factors listed above, and the parties’ submissions, we have found that Mr Hosking’s statements were not in breach of the accuracy standard, for the reasons set out below and which we expand upon in our analysis:
- the language used by Mr Hosking, both in the above identified statements and surrounding discussion, which reflected a subjective analysis
- it was implied in Mr Hosking’s second statement that there was not yet a sufficient or adequate network of public charging stations in New Zealand, which was a contestable opinion open to Mr Hosking to express
- Ms Street’s response to Mr Hosking’s comments, which contextualised his statements as opinion
- audience expectations and knowledge of Mr Hosking and his presentation style
- the format of Seven Sharp, as a current affairs and entertainment programme
- the style and presentation of the pre-recorded item.
 In our view, the first statement, regarding the cost of EVs, was distinguishable as a statement of analysis, comment or opinion, rather than a statement of fact. Whether something is too expensive, or ‘cost-effective’, attracts a subjective analysis and is contestable, rather than being a fact that can be easily proven as right or wrong. As the broadcaster has noted in its submissions, information and evidence is available to support the view that conventional engines are more cost-effective than EVs. While Mr Hosking did not provide the opposing arguments (for example, lower running and maintenance costs, the availability of second-hand EVs, or their climate change impact), this was an opinion that, while critical, was open to Mr Hosking to express.
 We are also satisfied that the second statement regarding the charging network, could be distinguished as analysis, comment or opinion. When assessing the language used in the specific statement, as well as the language used by Mr Hosking throughout the segment, we consider it was clear that Mr Hosking was expressing his own opinion and analysis on the topic.
 Mr Hosking did not make an authoritative statement of fact. Rather, it was a highly generalised statement which in our view could be inferred as referring to the adequacy of the network. In the context of his comments overall, it was implicit in Mr Hosking’s statement that he considers there is not yet an ‘adequate’ or ‘sufficient’ charging network in New Zealand. This is a subjective assessment and a contestable opinion. While we accept that there are a number of public charging stations available throughout New Zealand, and that this number is increasing rapidly, it was open to Mr Hosking to suggest that this did not amount to a fully operational system or ‘network’ of charging stations.
 While the complainant may disagree with this view, we are satisfied that Mr Hosking’s comment amounted to his opinion only, and viewers would not have received his comment in this respect as an authoritative assessment or a statement of fact. We also consider that viewers could reasonably be expected to be aware that EVs can be charged in owners’ homes, and we do not consider it was necessary for Mr Hosking to provide that information as part of his analysis.
 In making this assessment we have also taken into account the type of programme, the role and reputation of the person speaking, and the audience’s expectations. In previous decisions by the Authority, we have recognised the now familiar format and style of presentation on Seven Sharp.10 This item was presented in the programme’s well-known informal and colloquial style. It provided viewers with a light-hearted look at some Kiwis’ views about the ban of diesel and petrol cars, rather than providing extensive coverage of the benefits and drawbacks of EVs.
 We have also previously acknowledged that the presentation of comments by Mr Hosking, and his tendency to offer his opinions on topics discussed during the programme, are familiar to viewers. Focus group testing of a decision on Mr Hosking’s ‘final word’ segment demonstrated that viewers expect Mr Hosking to offer his opinion on a wide range of topics, and understand when Mr Hosking is presenting his own opinion rather than making authoritative statements.11
 Finally, Mr Hosking’s comments in this case were also contextualised retrospectively by Ms Street, who raised his bias and made viewers aware that his comments amounted to his own (and not impartial) opinion.
 Overall, taking the item as a whole and examining Mr Hosking’s comments together and in context, we are satisfied that Mr Hosking’s statements amounted to his own opinion and therefore did not breach the accuracy standard. The free and frank expression of opinions, even when those opinions are critical or unpopular, or others disagree with them, is an important aspect of the right to freedom of expression. We do not consider that any potential harm alleged to have been caused by this broadcast outweighed the broadcaster’s right to freedom of expression in this case.
 We therefore do not uphold the complaint under Standard 9.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
16 November 2017
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Jason Diprose’s formal complaint – 28 July 2017
2 TVNZ’s response to the complaint – 25 August 2017
3 Mr Diprose’s referral to the Authority – 25 August 2017
4 TVNZ’s response to the referral – 28 September 2017
5 Mr Diprose’s further comments – 29 September 2017
1 ChargeNet is a private company currently in the process of building a nation-wide network of rapid chargers, which allow EV owners to quickly recharge their vehicles for free. For more information about ChargeNet, see: www.charge.net.nz
2 For example see McMillan and Television New Zealand Ltd, Decision No. 2013-025 at 
4 Plugshare is an international crowd-sourced map app which shows the location of EV chargers around the world. See: www.plugshare.com
6 See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6.
7 Guideline 9a
8 Guidance: Accuracy – Distinguishing fact and analysis, comment or opinion, Broadcasting Standards in New Zealand Codebook, page 62
9 As above
11 Litmus Testing 2015, Broadcasting Standards Authority