Durie & Hall and Māori Television Service - 2018-066 (18 February 2019)
- Judge Bill Hastings (Chair)
- Paula Rose QSO
- Susie Staley MNZM
- Wendy Palmer
- Sir Edward Taihakurei Durie & Donna Hall
Channel/StationWhakaata Māori (Māori Television)
[This summary does not form part of the decision.]
An item on Te Kāea reported on a new public interest defence recognised by the Court of Appeal in the complainants’ defamation proceedings against the Māori Television Service (MTS). The Authority did not uphold a complaint from the appellants in the Court of Appeal case that this item was inaccurate and unfair. The Authority found that the item accurately reported the essence of the Court of Appeal’s judgment and that the omission of further information about the technical or legal aspects of the case would not have significantly affected viewers’ understanding of the item as a whole. The Authority did not consider that the broadcast created an unfairly negative impression of the complainants and, as they were unlikely to be adversely affected by the broadcast, their comment was therefore not required to be included in order for them to be treated fairly. Overall, the Authority did not consider the harm alleged by the complainants outweighed the right to freedom of expression, and its intervention in upholding the complaint would therefore be unreasonable and unjustified.
Not Upheld: Accuracy, Fairness
 On 31 July 2018, the Māori Television Service (MTS) broadcast an item on Te Kāea, a news and current affairs programme broadcast in te reo Māori. The item reported on a new public interest defence that had been recognised by the Court of Appeal in the complainants’ defamation proceedings against MTS.
 Sir Edward Taihakurei Durie and Ms Donna Hall complained that this broadcast created a false impression that they had opposed the new public interest defence and lost the appeal. They submitted that the broadcaster, which had an interest in how the case was reported, misrepresented the Court’s findings and failed to include the complainants’ views on the outcome of the decision, which was unfair.
 The issue raised by the complainants is therefore whether the broadcast was in breach of the accuracy and fairness standards of the Free-to-Air Television Code of Broadcasting Practice.
 As part of our consideration of this complaint, we have viewed a recording of the broadcast (with English subtitles), reviewed a full transcription and translation of the broadcast and have read the correspondence listed in the Appendix. The translation we have relied on in making our decision has been agreed by the parties to the complaint.
 We have also been assisted in our determination by the engagement of an independent cultural advisor, to provide a Te Ao Māori perspective on the issues raised. We co-opted an independent advisor under section 26 of the Broadcasting Act 1989 to provide this assistance. While an advisor co-opted to the Authority does not have voting power, they are permitted to participate in the Authority’s deliberations. We are grateful for the assistance provided to us in this case.
 The defamation proceedings brought by the complainants against MTS relate to an item broadcast on Te Kāea on 3 August 2015, and two articles published on MTS’s website on 3 and 6 August 2015. These items reported that the Māori Council had ‘dumped’ Ms Hall as legal counsel, as a result of concerns about Sir Edward and Ms Hall’s conduct.
 MTS pleaded (among other defences) a new standalone public interest defence, arguing that its reporting about the Māori Council was in the public interest. The complainants applied to strike out all of the defences pleaded by MTS in the High Court, where Mallon J ruled that the defences, including a new public interest defence, were tenable.
 The complainants appealed this decision to the Court of Appeal, conceding that some form of new public interest defence might now exist. The Court:
- Recognised a new public interest defence to defamation claims arising from mass publications. The subject matter of the publication must be a matter of public interest and the communication must be responsible.
- Held that the publications in this case were in the public interest. The key issue was whether the communication was responsible. The Court held that the defence was untenable in relation to the 3 August 2018 website article, which reported on the allegations raised in the broadcast, for the period of time the article did not include the complainants’ response to the allegations. The Court recognised that MTS might face other ‘difficulties’ in arguing the communication was responsible, but these challenges were left for trial.
- Held that a defence of neutral reportage was unavailable in this case, as the most prominent assertion by MTS (that Ms Hall had been dismissed) was reported as fact, and not an allegation. This defence was therefore struck out in its entirety.
 The Te Kāea item broadcast on 31 July 2018, and which is subject to the complaint, reported on this decision of the Court of Appeal.
 The item was introduced by presenter, Piripi Taylor, as follows:
He whakataunga motuhake kātahi anō ka puta i Te Kōti Pīra e whakawāteahia ai he ara hōu hei wawao ake i ngā whakapae take tūtara. Ko tāna, he tautoko i te tū a Whakaata Māori ki te kawe kōrero kia tika mō te iwi tūmatanui te painga. Ka mutu, he tuatahi i ngā Kōti o Aotearoa te whakawā i te tū wawao nei, kia tika ai te kawe kōrero i tētahi take mō te iwi tūmatanui te painga.
[Subtitled] The Court of Appeal has made a ground-breaking ruling that provides a new defence in defamation cases. It has upheld Māori Television’s right to responsibly report in the public interest. The Court has ruled that a defence of responsible communication on a matter of public interest can be applied in New Zealand courts for the first time.
 Reporter, Semiramis Holland, explained:
Ko Whakaata Māori kei te pūtake o te whakataunga motuhake.
Ko te whakatau a te kōti pīra, ko ngā mahi tika a te hunga pāpāho mō ngā take e whai pānga ana ki te iwi whānui, ka taea hei wawao ake i ngā whakawātanga mō te tūtara tangata.
[Subtitled] It's a decision that's put Māori Television at the centre of a landmark ruling.
The Court of Appeal has ruled responsible communications on matters of public interest can be used as a defence against defamation.
 She went on to provide background to the defamation proceedings that led to the Court of Appeal’s decision, saying that the complainants had applied to ‘strike out’ MTS’ defence that ‘the story was in the public interest’. She went on to explain:
Heoi i te tau rua mano tekau mā whitu i taunaki te kōti teitei i a Whakaata Māori. Ka haria e Tā Taihakurei raua ko Hall taua whakatau ki te kōti pīra. Heoi i te ra nei i taunaki te kōti pīra i te mana o Whakaata Māori me tana tohe, he whakapaohotanga mō te iwi whānui te painga. Ahakoa kaare te pūrongo ki te ipurangi i puta mō te wā roa, kaare i whāi wahi ki ki te wawaonga hōu, he kawenga mana rite, ka whakakorehia te pīra a Tā Taihakurei raua ko Donna Hall.
[Subtitled] But in 2017, the High Court upheld Māori Television's argument. The decision was appealed to the Court of Appeal by Sir Taihakurei and Ms Hall. Today, however, the Court of Appeal upheld Māori Television's right to argue at trial that the broadcast was in the public interest.
While the Court said a web story that was posted for a very short time could not be included in the new defence, as well as neutral reportage, the appeal from Sir Taihakurei and Ms Hall was dismissed.
 The item also featured comment from a legal expert, who explained the significance of the Court’s ruling and how it might apply.
 The reporter ended the item by saying:
Ko te whakatau i te rā nei, ka taea te hari atu ki te Kōti Matua pīrahia ai. Ka hoki rānei ki te kōti teitei, whakawāngia ai.
[Subtitled] Today's ruling can still be appealed to the Supreme Court. Otherwise the case returns to the High Court for trial.
 Under the accuracy standard, Sir Edward and Ms Hall complained that:
- The presenter’s comment, ‘[The Court of Appeal] has upheld Māori Television’s right to responsibly report in the public interest’, conveyed the impression that MTS had been entirely successful in the Court of Appeal and that the Court endorsed the responsibility of MTS’ coverage.
- The broadcast minimised the Court’s finding that the public interest defence was struck out in part (in relation to the website article made available online without comments from the complainants) and that the defence of neutral reportage was struck out in its entirety.
- In relation to Ms Holland’s comment, ‘Today, however, the Court of Appeal upheld Māori Television’s right to argue at trial that the broadcast was in the public interest’, the complainants argued that the use of the word ‘however’ reinforced the impression that the complainants were opposed to the new defence, when in fact they supported it.
- The complainants’ support of the new defence was omitted from the broadcast entirely and reflected negatively on them.
- The reporter’s reference to the appeal being ‘dismissed’ was incorrect, as the appeal was in fact upheld in part and dismissed in part.
 In relation to fairness, the complainants submitted:
- MTS failed to include the complainants’ views on the outcome of the decision which were provided in a media release, in the Court’s release on the decision and in comments provided to MTS by the complainants’ legal counsel.
- The views omitted from the broadcast included the complainants’ ‘delight’ with the outcome of the case, their support of the new defence and their welcoming of the Court’s finding that MTS’ failure to include the complainants’ comment in its website story was a ‘fundamental failing’.
- The omission of the complainants’ response was unfair and contributed to the inaccurate impression conveyed by the broadcast.
The broadcaster’s response
 In response to the accuracy complaint, MTS submitted:
- The presenter’s comment that the Court of Appeal ‘upheld Māori Television’s right to responsibly report in the public interest’ reflected the essence of the judgment, which recognised a new defence available to MTS to argue at trial.
- The broadcast was clear that part of one of MTS’ website articles did not have the benefit of the new defence, and neutral reportage did not apply. MTS was not required to expand on these technical points.
- Ms Holland’s comment that the Court of Appeal ‘upheld Māori Television’s right to argue at trial that the broadcast was in the public interest’ confirmed that the defence was available to be argued by MTS.
- Overall, the broadcast was an accurate summary of the Court’s judgment. Given the context of the broadcast (a brief news report), there was no need to expand on the legal or technical aspects of the judgment, as MTS was only required to convey the essence of the Court’s decision for viewers.1
- As such, the omission of reference to the complainants’ concession (as to the existence of the new defence) was not misleading.
 Under the fairness standard the broadcaster submitted:
- The complainants’ media statement implied the complainants had won the appeal and this was reinforced by discussion between the reporter and the complainants’ legal counsel, who informed the reporter that his clients had won the case, and a text message received from Sir Edward which read ‘You lost, we won’.
- The broadcast did not reflect adversely on the complainants, aside from the natural consequences of reporting on the outcome of a court decision, and given MTS considered the complainants’ media statement and further comments did not accurately reflect the outcome of the case, the inclusion of these statements in the broadcast would have been misleading.
The standards and relevant guidelines
 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 standard applies only to material points of fact. Technical points unlikely to significantly affect the audience’s understanding of the item as a whole are not material.2
 The fairness standard (Standard 11) requires broadcasters to deal fairly with any person or organisation taking part or referred to in a broadcast. 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.
 It is a key principle of the standard that if a person or organisation referred to or portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment for the programme, before a broadcast. What is ‘fair and reasonable’ will depend on the circumstances.3
Freedom of expression
 When we consider a complaint that a broadcast has breached broadcasting standards, we first look at the important right to freedom of expression. Freedom of expression is critical to our democracy and includes the right of both broadcasters to impart, and audiences to receive, ideas and information. Our task is to weigh the value of the programme, and the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused by the broadcast, whether to individuals or to audiences generally.
 We acknowledge that this broadcast had high value in terms of the right to freedom of expression. It aimed to inform audiences about a significant legal precedent set by the Court of Appeal and there was high public interest in receiving accurate and impartial information about this case.
 However, the complainants have argued that this broadcast caused harm, both to the complainants as individuals and to audiences generally. They have submitted that the broadcast created a misleading impression of the outcome of the case and reflected negatively on them. As a result, audiences were likely to be left misinformed about the Court’s findings. Further, the complainants allege that they were not given a fair or reasonable opportunity to comment for the programme, which was unfair.
 Ultimately, we must strike the appropriate balance between the harm alleged to have been caused as a result of this broadcast and the right to freedom of expression. In this case, we have also given careful consideration to the nature of the broadcast (a news item prepared for a general audience, not a legal report prepared for lawyers) and the unusual circumstances in which the broadcaster, MTS, is also a party to the proceedings at the centre of the case, and therefore had an interest in how the outcome of the case was reported.
 In summary, we have found that the harm alleged to have been caused by the complainants did not reach the required threshold necessary for us to intervene and limit the broadcaster’s right to freedom of expression. Overall, we consider the broadcaster took reasonable steps to ensure this broadcast was accurate in relation to all material points of fact and to ensure the complainants were treated fairly.
 Taking into account the value and context of the broadcast as a news item reporting on significant court proceedings, we have found that our intervention in upholding the complaint would represent an unreasonable and unjustified limit on the right to freedom of expression.
 We expand on our reasons for this decision below.
 The two key questions we have considered in making our determination on this complaint are whether:
- MTS made reasonable efforts to ensure that all material points of fact in this broadcast were accurate and did not mislead;4 and
- the complainants (who were referred to in the item) were treated fairly. If there was a possibility the complainants might be adversely affected by the broadcast, MTS needed to provide them with a fair and reasonable opportunity to comment.5
 We have set out our findings in response to these questions under each standard raised below.
 We first asked whether the broadcaster made reasonable efforts to ensure the accuracy of this broadcast.
 We all agreed that, while this was not a brief news item (it was over three minutes in length), the factual background to the case is complex and some of the legal points discussed would be highly technical for the average viewer.
 Keeping this in mind, we initially had some reservations about the clarity of some of this reporting, particularly given MTS is a party to the proceedings and should be seen to report on the case in an impartial way. Another key issue was the omission of any reference to the complainants’ concession that a public interest defence of this kind may have existed in New Zealand. This was included in the Court of Appeal’s release on the case and was reported by most mainstream news outlets.6
 However, as we have said above, the accuracy standard applies only to material points of fact, and technical points unlikely to significantly affect the audience’s understanding of the item as a whole are not ‘material’ for the purposes of the standard.
 In our view, the overall focus of this item was the Court of Appeal’s finding that a new public interest defence existed in New Zealand and how this new defence might apply, with its secondary focus being the court proceedings that led to this outcome.
 We consider the item accurately reported the essence of the Court of Appeal’s judgment: that a new public interest defence existed in New Zealand and was available (in part) to MTS to argue at trial. It is clear from the front page of the Court’s judgment that this appeal was ‘allowed in part’, but ‘otherwise dismissed’, which was the impression conveyed by the broadcast. For example, Ms Holland’s comment that the appeal was ‘dismissed’ was in fact qualified by her previous statement, which explained to viewers that aspects of MTS’ pleadings had been struck out.
 The Authority has previously recognised that, in news broadcasting:7
…complex situations and facts will often necessarily be reduced to key points to convey the essence of the story to viewers… It is not usually possible, or reasonable, for every detail to be included. We would be concerned only if an item became misleading by omission in the sense that viewers were given a ‘wrong idea or impression of the facts’.
 We agreed that aspects of the Court’s decision could have been made more clear in the broadcast, particularly for non-lawyers who may have found terms such as ‘neutral reportage’ difficult to understand. However, we recognise the challenge facing broadcasters when it comes to reporting on complex legal proceedings and overall, these were technical legal points which were unlikely to affect a general audience’s understanding of the item as a whole. In these circumstances, we are satisfied that it was reasonable for MTS to deal with the more technical aspects of the case briefly in the item. We are not convinced that the omission of further detail on these points would have resulted in viewers being materially misled.
 In relation to the absence of reporting on the complainants’ concession, we have considered the harm that might have been caused, both to audiences and to the complainants, through this omission. Taking the item as a whole, we again find that the omission of information about the complainants’ support of the new defence would not have materially misled viewers about the focus of the item, which was the Court’s creation of a new defence for defamation. The purpose of the item was not to outline the position of the parties, but to provide contextual background for the outcome of the case.
 Overall, we do not consider that the accuracy concerns raised by the complainants in this case reached the required threshold for us to intervene and limit the broadcaster’s right to freedom of expression. We are satisfied that the alleged inaccuracies would not have significantly affected a lay audience’s understanding of the Court of Appeal’s judgment.
 Finally, we note that the item concluded by stating that, while the option of appeal was open, the case would return to the High Court for trial. This indicated to viewers that there was more to come in the resolution of this matter and accurately reflected that some of the key issues had not yet been determined.
 For these reasons, we do not uphold the accuracy complaint.
 In relation to the fairness standard, we do not consider this item reflected unduly negatively on the complainants. While they were referred to, the broadcast as a whole reported on the creation of a new defence for defamation, with the proceedings leading up to the case discussed as contextual background. As we have said above, the focus of the item was not on the parties’ positions on the appeal, or on who was the more successful party, but on the new public interest defence and how it might apply.
 The complainants were already parties to proceedings and, in our view, this reporting would not have aggravated any harm that may be alleged to have already occurred in the events leading up to the appeal. While the background to the case is complex, we consider MTS endeavoured to provide a straightforward news report on the creation of significant legal precedent, and our co-opted member confirmed for us that the tone of the te reo Māori broadcast was at all times neutral and professional.
 In these circumstances, we do not consider that the alleged inaccuracies in the broadcast led to any unfairness, or that the complainants were adversely affected by the programme. We therefore do not consider that MTS was required, in the interests of ensuring the complainants were treated fairly, to provide them with an opportunity to comment.
 MTS in any event sought comments from the complainants. According to the broadcaster’s submissions, on 31 July 2018 shortly after the Court of Appeal’s decision had been delivered, Ms Holland emailed and phoned Sir Edward seeking the complainants’ comment in response to the decision. She was later sent a copy of the complainants’ media release, which, in MTS’ view, did not accurately convey the outcome of the case.
 The broadcaster then submits that, later that afternoon, Ms Holland spoke with the complainants’ legal counsel who advised that the complainants would not be providing interviews to media and that his clients had ‘won’ the case. This message was allegedly reinforced by a text message sent from Sir Edward to MTS, stating that MTS had ‘lost’ and the complainants had ‘won’. This was not MTS’ assessment of the Court’s judgment.
 Given our view that the broadcast did not adversely affect the complainants, we consider it was then an editorial decision open to MTS as to whether the complainants’ comments in response to the Court of Appeal’s decision were included in the broadcast.
 We agree that the media statement provided by the complainants included only selected information about the Court’s decision and conveyed the impression that the complainants were entirely successful in the Court of Appeal, which in our view is incorrect. We have found above that this item accurately reported the essence of the Court’s judgment, and that audiences were unlikely to be left with a negative impression of the complainants. As such, the inclusion of the complainants’ comment on the decision may have resulted in viewers being misled or confused about the outcome of the appeal. We therefore do not consider comment from the complainants was required to be included in the item, in the interests of ensuring they were treated fairly.
 We therefore do not uphold this aspect of the complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
18 February 2019
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Sir Edward Taihakurei Durie and Donna Hall’s formal complaint – 2 August 2018
2 Māori Television’s response to the complaint – 3 August 2018
3 Sir Edward and Ms Hall’s referral to the Authority – 10 August 2018
4 Māori Television’s response to the referral – 23 August 2018
5 Sir Edward and Ms Hall’s further comments – 7 September 2018
6 Māori Televison’s final comments – 14 September 2018
1 Citing AFFCO Holdings Ltd and MediaWorks TV Ltd, Decision No. 2015-050 at 
2 Guideline 9b
3 Guideline 11d
4 Standard 9 – Accuracy
5 Guideline 11d
6 See, for example: Court of Appeal recognises new public interest defence to defamation claims (NZ Herald, 31 July 2018); Court recognises new public interest defence in defamation claims (RNZ, 31 July 2018); New public interest defence to defamation claims (Otago Daily Times, 31 July 2018)
7 AFFCO Holdings Ltd and MediaWorks TV Ltd, above