Evans and Radio New Zealand Ltd - 2016-080 (19 January 2017)
- Peter Radich (Chair)
- Paula Rose
- Leigh Pearson
- Amanda Evans
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand
[This summary does not form part of the decision.]
An item on Sunday Morning featured an interview with journalist Paula Penfold about the recently published book, Don’t Dream It’s Over: Reimagining Journalism in Aotearoa New Zealand. During the interview, Ms Penfold discussed the Stuff Circuit team’s investigation into the death of a teenage girl with Down Syndrome at the Gloriavale Christian community. Ms Penfold referred to the complainant’s documentary, Gloriavale: A Woman’s Place, saying, ‘And I know a little bit about how that works with Hopeful Christian, the leader at Gloriavale. You know, he will insist on editorial control’. The Authority did not uphold a complaint that Ms Penfold’s statements were inaccurate. Ms Penfold’s statement represented her own analysis, comment or opinion, based on her experiences at Gloriavale, and so was not subject to the accuracy standard. While Ms Penfold spoke authoritatively, in the context of her full statement, and the item as a whole, the Authority did not consider that listeners would have interpreted her comments as fact.
Not Upheld: Accuracy
 An item on Sunday Morning featured an interview with journalist Paula Penfold about the recently published book, Don’t Dream It’s Over: Reimagining Journalism in Aotearoa New Zealand. During the interview, Ms Penfold discussed the Stuff Circuit team’s investigation into the death of a teenage girl with Down Syndrome at the Gloriavale Christian community.1
 In response to the host’s reference to praise for the investigation, Ms Penfold said:
Ms Penfold: ...[a reporter] contrasted [the Stuff Circuit investigation] with a New Zealand On Air [NZOA]-funded documentary series which gives a very different picture of what life is like in Gloriavale.
Host: ...this is Amanda Evans’ piece which is seen as a bit of an ad – a promo – for Gloriavale.
Ms Penfold: And I know a little bit about how that works with Hopeful Christian, the leader at Gloriavale. You know, he will insist on editorial control. Now when we went in there, clearly we weren’t welcome because we were asking questions about the death of a child with Down Syndrome.
 Ms Penfold then went on to discuss the issue of NZOA funding for long-form, investigative journalism in the public interest.
 Amanda Evans, producer of three documentaries about Gloriavale, including the recent documentary, Gloriavale: A Woman’s Place, complained that this segment, and Ms Penfold’s statements in particular, were inaccurate. She maintained that no leader at Gloriavale had input or editorial control over the content or editing of her documentaries.
 The issue raised in Ms Evans’ complaint is whether the broadcast breached the accuracy standard, as set out in the Radio Code of Broadcasting Practice.
 The item was broadcast on 21 August 2016 on Radio NZ at 11.15am. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
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. The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.2
The parties’ submissions
 Ms Evans submitted that Ms Penfold’s reference to Hopeful Christian’s ‘editorial control’ was incorrect and damaged her professional reputation and credibility as an independent documentary producer. Ms Evans provided a signed statement from the community which she said confirmed Gloriavale leaders had no control over the documentary’s content.
 She argued that Ms Penfold was introduced in the item as a leading investigative journalist and presented herself as an expert on the Gloriavale community. This meant that listeners would assume her statements were factual as to how Gloriavale functioned, she said.
 Ms Evans further submitted that Ms Penfold used her position as a credible source to make untrue statements, deliberately devaluing the work of a competitor for documentary funding, and also bringing into question the credibility of NZOA and TVNZ’s commissioning team (the broadcaster that screened her documentary).
 RNZ submitted that the focus of the interview was the role Ms Penfold thought NZOA should play in the funding of investigative journalism. The comments referring to Ms Evans’ documentary were ‘tangential’ to the focus of the story, it argued, and it was therefore doubtful whether Ms Penfold’s comments amounted to material facts in the context of the item. It concluded that Ms Penfold’s statements were opinion, based on her own experiences, and not statements of fact as envisaged by the standard.
 In its comments on Ms Evans’ referral to the Authority, RNZ said that it was nevertheless happy to include a clarification summarising the comments from Gloriavale included in Ms Evans’ submissions, in a future Sunday Morning programme.
 The first issue for us to consider is whether Ms Penfold’s comments amounted to material points of fact which were subject to the accuracy standard, or whether they were distinguishable as her own analysis, comment or opinion.
 Guidance to the accuracy standard states that the following factors will be relevant when distinguishing fact from analysis, comment or opinion:3
- the language used, both in the statement subject to complaint and the rest of the item
- the type of programme and the role or reputation of the person speaking
- the subject matter
- whether evidence or proof is provided to support the comment.
 We acknowledge that Ms Penfold was introduced as an experienced investigative reporter. She spoke authoritatively and drew from her years of experience in the journalism industry and, at times, positioned herself as an expert on the issues presented throughout the segment.
 However, having listened to the entire programme, and having assessed the context in which Ms Penfold’s statement was made, we have reached the view that the statement complained about was clearly distinguishable as Ms Penfold’s own analysis, comment or opinion.
 The focus of the item as a whole was the issues raised in Don’t Dream It’s Over – namely, the changing landscape of the journalism industry in New Zealand. Ms Penfold spoke at length about her own experiences in the industry and her views on various topics, including the importance of a robust media presence for a healthy democracy and her view that NZOA had a greater role to play in funding long-form investigative journalism. She used comments about the complainant, Gloriavale and her own experiences to segue into her views on NZOA’s funding of investigative journalism.
 While Ms Penfold positioned herself as an authority on the issues raised during the item, including access to Gloriavale, we consider that reasonable listeners would have understood that she was not the single, expert source of information on these issues. The interview comprised Ms Penfold’s thoughts and views on a number of topics raised by Don’t Dream It’s Over, and this interview format, framed around one individual’s perspective and experiences, is familiar to RNZ listeners.
 The specific comments subject to complaint began with Ms Penfold’s statement, ‘And I know a little bit about how that works....’ She went on to say that, ‘clearly [the Stuff Circuit team] weren’t welcome because we were asking questions about the death of a child with Down Syndrome’.
 While Ms Penfold did not precede her comment with ‘I think’, her statement that she ‘knew’ how Gloriavale worked was modified by her later comments, which clearly based this knowledge on her own experiences at Gloriavale. Although her comment may have been framed as fact, in the context of her full statement, and the segment as a whole, in our view reasonable listeners would not have interpreted these comments to mean that the complainant’s documentary was, unequivocally, subject to the editorial control of the Gloriavale community. Rather, we think listeners would have understood that this was Ms Penfold’s own comment or analysis of the situation at Gloriavale, based on her own experiences.
 Section 14 of the New Zealand Bill of Rights Act 1990 recognises that everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind, in any form.4 This is a broad-based protection of all forms of speech – even false speech. Freedom of expression as preserved by the Bill of Rights therefore explicitly entitles Ms Penfold to hold and express an opinion, even if that opinion is incorrect or unpopular.5
 For these reasons, we do not uphold the accuracy complaint.
 Notwithstanding this decision, we note Ms Evans’ submissions that in her view this broadcast damaged her reputation, through Ms Penfold’s inference that Ms Evans’ documentary was not independent of Gloriavale and was therefore not ‘serious investigative journalism’ worthy of NZOA funding. The ‘fly-on-the-wall’ treatment used in Ms Evans’ documentaries is a recognised story-telling style, and we note that the Gloriavale series received an international award.6 We also recognise that a journalist’s integrity and independence go to the heart of that profession, and the comments made by Ms Penfold were, in our view, a slur on the complainant’s professionalism. Arguably, the host compounded the impact of this on the complainant and her reputation, by broadcasting her full name.
 These are, in essence, matters of fairness (Standard 11). The Authority’s established approach to the issue of the scope of complaints and their determination has been to accept jurisdiction over standards raised either explicitly or implicitly in the original complaint. While we have sympathy for the complainant’s position, the fairness standard has not been raised here, so we are unable to make a determination under that standard.
 We note however that in its response to Ms Evans’ referral to the Authority, RNZ offered to broadcast a clarification in a future Sunday Morning programme. While we have not upheld the complaint, in our view this would go some way towards addressing the complainant’s concerns about the broadcast.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
19 January 2017
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Amanda Evans’ formal complaint – 23 August 2016
2 RNZ’s response to the complaint – 27 September 2016
3 Ms Evans’ referral to the Authority – 13 October 2016
4 RNZ’s response to the Authority – 15 November 2016
5 Ms Evans’ further comments – 18 November 2016
6 Ms Evans’ final comments – 30 November 2016
7 RNZ’s final comments – 6 December 2016
2 Guideline 9a
3 See page 62 of the Broadcasting Standards in New Zealand Codebook
4 Radio New Zealand Ltd v Kerry Bolton HC WN CIV-2010-485-225, 19 July 2010 at 
5Dempsey and 3 Others and Television New Zealand Ltd, Decision No. 2014-047 at