Forbes & Lee and UMA Broadcasting Ltd - 2015-058 (1 March 2016)
- Peter Radich (Chair)
- Paula Rose QSO
- Leigh Pearson
- Mihingarangi Forbes, Annabelle Lee
BroadcasterUMA Broadcasting Ltd
Te Raumawhitu Kupenga declared a conflict of interest and did not participate in the determination of this complaint.
[This summary does not form part of the decision.]
During Paakiwaha, host Willie Jackson interviewed the Head of News and Current Affairs at Māori Television about the recent resignation of senior staff, among other things. Mihingarangi Forbes and Annabelle Lee, two of the individuals referred to, complained that the interview was unfair, inaccurate and unbalanced. The Authority upheld aspects of the accuracy complaint, as Mr Jackson claimed Ms Forbes leaked information to media (which was also unfair) and declined an invitation to appear on the programme, which was inaccurate. The Authority also found the item was unfair to Ms Forbes, Ms Lee and another former staff member as the discussion reflected negatively on their professional ability and they were not given a timely and relevant opportunity to respond or give comment. The Authority did not uphold the balance complaint as the interview did not discuss a controversial issue of public importance.
Upheld: Accuracy, Fairness
Not Upheld: Controversial Issues
 During Paakiwaha, host Willie Jackson interviewed Maramena Roderick, Head of News and Current Affairs at Māori Television, about the state of affairs at the broadcaster. They discussed the recent resignation of senior staff members, specifically journalists Mihingarangi Forbes and Jodi Ihaka and producer Annabelle Lee.
 Mihingarangi Forbes and Annabelle Lee complained that the interview was unfair, inaccurate and unbalanced.
 The issue is whether the broadcast breached the fairness, accuracy and controversial issues standards as set out in the Radio Code of Broadcasting Practice.
 The item was broadcast on Radio Waatea on 6 July 2015.The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Nature of the programme and freedom of expression
 Paakiwaha (‘The News Bearer’) is described as an ‘exciting weekly two hour current affairs programme hosted by Willie Jackson and featuring topical national kaupapa from a Māori perspective’.1 Paakiwaha is broadcast on Radio Waatea, a bi-lingual station featuring news, current affairs, talkback and music programming in English and te reo Māori.2
 The programme in question was introduced as follows:
We go to the Head of News at Māori Television, we have Maramena [Roderick] on line... we just thought it was time to have a catch up with you given there’s a lot of speculation over Māori Television. Plus, you have a new team on Native Affairs, so... a chance to give a bit of tautoko for the show tonight and a bit of korero on the state of affairs at Māori Television. What do you make of it all, Maramena...? You see all the different speculation, particularly in mainstream, and if we were to believe mainstream, Paora Maxwell is Satan and everybody’s been sacked by Paora Maxwell... and you’re the witch. Would that be far from the truth, Maramena?
 The discussion which followed between Mr Jackson and Ms Roderick centred on recent changes and developments at Māori Television, including the speculation and media coverage of the reasons behind the departure of senior staff members. Mr Jackson referred to Mihingarangi Forbes, Annabelle Lee and Jodi Ihaka by name and questioned Ms Roderick about ‘what happened there’. While Ms Roderick noted she would not discuss individual colleagues, past or present, she spoke generally about staff and Māori Television. Mr Jackson continued to refer by name to the three individuals. Ms Roderick also rejected criticism alleging that political interference was behind some of the recent changes at the broadcaster, such as in programming, and elaborated on the reasons for these changes. The item concluded with a brief discussion of upcoming programmes on Māori Television.
 We acknowledge that there was a level of public interest in this broadcast. The interview discussed one of New Zealand’s state broadcasters, which had been subject to recent media coverage and speculation, and was therefore valuable in terms of the exercise of the right to freedom of expression – both the right of the broadcaster to impart the information and also of the audience to receive that information. This value in the broadcast and the importance of the right to free expression must be weighed against the level of harm alleged to have been caused by the broadcast, in terms of the underlying objectives of the relevant broadcasting standards.3
Were the complainants treated unfairly?
 The fairness standard (Standard 6) 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.4
 Ms Forbes and Ms Lee maintained that they and Ms Ihaka were not informed of the nature of the programme, nor invited to comment or participate, which meant they were unable to defend themselves from criticism, either overt or implied. They argued a number of statements in the programme would have left listeners with a negative impression of their reputation, work ethic, professionalism, conduct and editorial judgement, for example:
- ‘I did introduce new policies and processes, raised the bar in terms of what I expect in terms of punctuality, in terms of attendance, in terms of checks on stories probably more so than they ever had before at Māori Television...’ (Ms Roderick)
- ‘Change is difficult, I understand, for some who haven’t known any other way but when you’ve been in the industry for as long as we have, Willie, change happens every other day...’ (Ms Roderick)
- ‘I want to support the other 97 per cent who are here and who are willing to change and who are willing to give anything a go... and those policies I’ve brought are based on fairness for everyone so that the whole team is valued rather than just individuals’. (Ms Roderick)
- ‘We need to hear these things. I want to hear from some of them, too. That’s why I say to Mihi, let’s have a korero kanohi ki te kanohi. You know, [if you’re] going to make some criticism, make it, instead of leaking stuff to the Pākeha reporters’. (Mr Jackson)
 Ms Forbes argued that while Ms Roderick did not explicitly name her, or Ms Lee or Ms Ihaka, it was clear she was speaking about these three individuals.
 UMA maintained it gave Ms Forbes an opportunity to tell her side of the story before and after the interview, but she declined. It said it did not invite Ms Lee on the programme because ‘We wanted Mihi, as she was the main item of the news story’. UMA said that the invitation was still open for Ms Forbes and/or Ms Lee to ‘come in and debate with Willie’ or whoever they choose, to discuss their departure from Māori Television. In any case it considered that both Ms Forbes and Ms Lee were referred to in a positive light, noting Mr Jackson’s statement:
Mihi, Annabelle and Jodi – I’m sure you respect their work – I certainly do. It seems a shame that they haven’t been able to gel with you because they have opened up some stories and they been quite – and I think you’d agree – they’ve been quite courageous in some of the past stories, haven’t they, in terms of Native Affairs...
 Overall, we have reached the view that Ms Forbes, Ms Lee and Ms Ihaka were treated unfairly. Several statements made during the interview reflected negatively on these individuals and had the potential to impact on their reputations, which was unfair given they were not given a reasonable opportunity at the time to respond to the matters raised in the programme or to defend themselves.
 First, as well as being inaccurate (discussed further below in relation to Standard 5), Mr Jackson’s statement that Ms Forbes leaked information to the media was unfair to her because it was unsubstantiated and implied that Ms Forbes was dealing with her departure from Māori Television in an improper way. We also consider that the statements about issues related to work performance were unfair to Ms Forbes, Ms Lee and Ms Ihaka. Although Ms Roderick couched her comments in broader terms and did not name individuals, Mr Jackson did. He did not separate the general discussion from the personal, which linked Ms Forbes, Ms Lee and Ms Ihaka to Ms Roderick’s statements about sub-standard work performance. These would have created the impression for listeners that: there were problems with the complainants’ punctuality and attendance; they did not adequately check stories; they were unwilling to adopt new policies and processes; and they were not team players. Mr Jackson did acknowledge that Ms Forbes’, Ms Lee’s and Ms Ihaka’s work was respected, but we do not think this was sufficient to mitigate the multiple statements which could have been seen to reflect negatively on their professional ability and integrity.
 In the application of the rules of fairness it is usually the case that somebody about whom something adverse is to be said should be given an opportunity to comment.5 Ms Forbes had been invited to participate in a Paakiwaha programme, but this was prior to the interview in question and for an entirely unrelated matter. There are several ways in which the broadcaster could have given Ms Forbes, Ms Lee and Ms Ihaka the opportunity to comment, which would have mitigated any potential unfairness during the item. As well as direct participation in the programme, the broadcaster could have included statements from the individuals or invited them to participate in a later Paakiwaha programme. We do not think that UMA’s invitation to Ms Forbes and Ms Lee to appear on Radio Waatea, made during the course of correspondence about these complaints, was sufficient to remedy the unfairness caused by the original broadcast.
 We are satisfied that upholding this part of the complaints would not unreasonably limit the broadcaster’s right to freedom of expression. In this instance, while there was a level of public interest in the subject matter of the broadcast, this was outweighed by the complainants’ right to be treated fairly and to avoid undue harm to their reputations.
 Accordingly we find that Standard 6 was breached and we uphold this part of the complaints.
Was the broadcast inaccurate or misleading?
 The accuracy standard (Standard 5) 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 receiving misinformation and thereby being misled.6
 Ms Forbes and Ms Lee considered that several aspects of the interview were inaccurate.
Ms Forbes leaked information to Pākeha reporters.
 The relevant exchange about the leak of information to the media was as follows:
Mr Jackson: We need to hear these things. I want to hear from some of them too, that’s why I say to Mihi, let’s have a korero kanohi ki te kanohi. You know, [if you’re] going to make some criticism, make it, instead of leaking stuff to the Pākeha reporters.
Ms Roderick: I would have valued the opportunity to come to me first before you believe in hearsay or second-hand that didn’t happen. I don’t know who leaked and I don’t want to criticise any employee who is here or who has left.
 Ms Forbes and Ms Lee argued these statements about Ms Forbes leaking information were presented as fact, but were incorrect.
 UMA acknowledged that Mr Jackson ‘probably went too far when he talked about [Ms Forbes] leaking to Pākeha media’ and apologised for this statement in the course of correspondence with the Authority. However, it still declined to uphold the complaint.
 This was a serious accusation against Ms Forbes, who was the individual mentioned most frequently throughout the item. It was material in our view because it contributed to the overall picture created of her conduct and reasons for resigning. The broadcaster has acknowledged Mr Jackson’s allegation ‘went too far’, and no reasonable basis for the statement was given by Mr Jackson or has been demonstrated to us by the broadcaster. We therefore find that this statement was inaccurate.
Ms Forbes was invited to participate on the programme but declined.
 Ms Forbes and Ms Lee argued that Mr Jackson misleadingly implied Ms Forbes had been invited to take part in the interview but declined, when in fact none of the three individuals referred to had been invited to speak on that occasion (and as Ms Lee noted, may not have been in a position to comment due to ongoing contractual and legal issues).
 We agree that the implication that Ms Forbes was invited to participate in the programme, but declined, was misleading. Ms Forbes had been invited by the broadcaster to speak on a prior Paakiwaha programme about a debate that Māori Television’s Native Affairs was hosting, but had declined due to her workload. Ms Forbes had not been contacted at the time of the broadcast to discuss her departure from Māori Television, her work ethic or the allegation that she had leaked information to the media on Paakiwaha (see further discussion of this at paragraph ).
‘Change is difficult, I understand, for some who haven’t known any other way but when you’ve been in the industry for as long as we have Willie, change happens every other day.’ (Ms Roderick)
 Our understanding of Ms Forbes’ concerns about this statement is that she considered it to be inaccurate because it implied the three individuals discussed were inexperienced and unfamiliar with the industry, when in fact their respective careers spanned between 14 and 20 years.
 Guideline 5a to the accuracy standard states that it does not apply to statements that are clearly distinguishable as analysis, comment or opinion. In our view, Ms Roderick’s generic comments about ‘change’ fell within this category. She did not make any statements of fact about the careers or experience of the individuals referred to elsewhere in the interview. Having said that, we think any inferences which may have been drawn from this comment regarding the professional adaptability of the individuals have been adequately addressed as a matter of fairness (see paragraph ).
Conclusion on accuracy
 For the above reasons we uphold two aspects of the complaints under Standard 5. Again, we are satisfied that upholding these parts of the complaints would not unreasonably restrict the broadcaster’s right to freedom of expression. They were material to the discussion and would have affected listeners’ understanding of the facts, in particular because they contributed to the impression created of the complainants, and in the absence of any contrary view or a response from them.
Did the item discuss a controversial issue of public importance which required the presentation of alternative viewpoints?
 The balance standard (Standard 4) 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 arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.7
 Ms Forbes and Ms Lee argued that Mr Jackson only explored one side of a topical and widely reported story, and did not present other significant points of view. They considered that Ms Roderick’s assertions regarding the issues surrounding their (and others’) departure and their characters went unchallenged during the interview. In particular, Ms Forbes felt Ms Roderick’s following statement reinforced the idea that the former staff members behaved as individuals rather as a team, which was unbalanced:
[I want to support] the 97 per cent who are here and who are willing to change and who are wanting to give anything a go... and those policies I’ve brought are based on fairness for everyone so that the whole team is valued rather than just individuals.
 UMA argued that it was not Mr Jackson’s job to be an ‘advocate’ for Ms Forbes or for Ms Lee, or to represent their views. Rather, his job was to ‘find out what was really going on at Māori Television’, it said. UMA maintained Ms Roderick was not ‘coerced into following a particular line’ and that ‘it was her opportunity to put a view that our listeners hadn’t heard before’.
 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’.8
 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’.9 A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.10
 In our view, the complainants’ concerns are better addressed as matters of fairness and the failure of UMA to give them any opportunity to respond to the matters raised in the broadcast. In any case, we do not consider that the focus of the interview, namely the resignation of senior staff from Māori Television, amounted to a discussion of a controversial issue of public importance. While this issue received coverage and generated some speculation in the media, this in itself did not necessarily trigger the application of the standard. The nature of the discussion as it was positioned in the introduction, and as it continued, was more focused on internal employment matters and differences of opinion within Māori Television, than any wider issue which required the presentation of alternative viewpoints. We think any perceived imbalance would have been remedied had the complainants been able to respond to the matters raised and invited to comment.
 For these reasons we decline to find a breach of Standard 4.
Tikanga and the role of the Authority
 In the course of correspondence about this complaint UMA expressed disappointment that Ms Forbes and Ms Lee made formal complaints and that they had ‘chosen such a Pākeha route to find a resolution’. UMA felt that Radio Waatea was ‘the appropriate place to settle things particularly from a tikanga perspective’.
 Ms Lee responded that if UMA ‘were sincere about resolving this issue using a tikanga Māori framework then [it] would’ve contacted me when I lodged the initial complaint... and perhaps initiated a hui or hohou te rongo process. Instead [it] chose to ignore my concerns leaving me no choice but to pursue my complaint [to the Authority]’. Ms Lee was offended at the assertion that she and Ms Forbes had chosen a Pākeha route to find a resolution. She said, ‘As a Māori my right to fair, balanced and accurate reportage should not be considered any lesser than that of Tauiwi (non-Māori) and I don’t accept that a broadcaster may take liberties with those rights simply because of my ethnicity’. She felt UMA’s references to tikanga Māori were disingenuous, as ‘it implied that acceptable broadcasting standards can be set aside on supposed cultural grounds’.
 The Authority’s role, as established by the Broadcasting Act 1989, is to receive and determine formal complaints about broadcasting standards from any member of the New Zealand public. We acknowledge that the Authority, along with other adjudicative bodies, is merely one avenue for resolving disputes. In some circumstances broadcasters may succeed in satisfactorily dealing with issues outside of the formal complaints process. However, the Act explicitly affords all New Zealanders the right to refer their complaints to the Authority when this is not able to be achieved. In carrying out our role and functions we endeavour to have regard to relevant cultural frameworks in a way which is appropriate and respectful in each given situation, and we agree with Ms Lee’s comment that ‘good tikanga practice and broadcasting practice are not mutually exclusive concepts – in fact the two support one another’.
 UMA’s correspondence in response to these complaints has caused us considerable concern in terms of its appreciation of the need to respect and adhere to broadcasting standards, and also the complaints process. For example, it said:
[Mr Jackson] is a provocative interviewer and is probably the country’s most experienced Māori interviewer on radio and TV so the last thing he’s going to worry about are [Ms Forbes’] rights... and whether he’s breached the [Broadcasting Act].
Obviously the Act is important and [Radio] Waatea does try to uphold [b]roadcasting [s]tandards however we like to give our interviewers, particularly Willie, flexibility and now and then he, like many other current affairs hosts around the country, [pushes] things close to the wire and letter of the law. Which as you well know any interviewer or current affairs host should do if they want an interesting interview or programme.
 While we accept that, sometimes, broadcasters necessarily ask the hard questions and take a strong line in the public interest and in investigating important issues, this does not absolve them from adhering to the standards. As we have said, the Authority’s task in any complaint is to attempt to strike an appropriate balance between the broadcaster’s right to freedom of expression and the public interest in a broadcast, with the broadcaster’s obligation to avoid undue harm to individuals or society, having regard to the objectives of the standards. We have found in this case that the importance of maintaining standards of accuracy and fairness outweighed the value in the programme as it was presented.
 We also note that UMA did not respond to Ms Lee’s formal complaint within the required statutory timeframe. Subsequent to her referral to the Authority, it responded in full and we considered the response as part of our determination of the complaint, but we remind UMA of its obligation to adhere to the prescribed time limits when responding to complaints.
 Additionally, we are concerned that the nature of UMA’s correspondence to Ms Forbes and Ms Lee about this complaint was at times personally critical, in particular towards Ms Lee. Complainants should be dealt with courteously and professionally and we urge UMA to keep this in mind when dealing with any future complaints.
For the above reasons the Authority upholds the complaints that the broadcast by UMA Broadcasting of Paakiwaha on 6 July 2015 breached Standards 5 and 6 of the Radio Code of Broadcasting Practice.
 Having upheld aspects of the complaints, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions from the parties on our provisional findings and on what orders, if any, should be imposed.
Submissions on provisional decision and orders
 Ms Forbes submitted that UMA should make an on-air and online apology in English and Te Reo addressing the fairness and accuracy issues in the original broadcast, as well as apologising for several statements made in the course of correspondence about the complaint.
 Ms Lee also submitted that UMA should apologise for the breach of standards, and this should be broadcast on the various platforms that featured the original interview and follow-up articles. She submitted that she and Ms Forbes should be given the opportunity to approve the text of the apology prior to broadcast.
 Neither Ms Forbes nor Ms Lee sought a financial penalty, but submitted that if UMA was to be fined then a payment should be made in the form of a donation to the New Zealand Centre for Investigative Journalism.
 UMA disagreed with the Authority’s findings that the broadcast breached the accuracy and fairness standards. It provided new information about offers made to Ms Forbes to appear on Paakiwaha, which it felt proved that she (and Ms Lee) had ‘considerable opportunities’ to defend themselves and therefore were not treated unfairly. UMA requested that any references to Ms Ihaka be removed from the decision, as she did not make a complaint. The broadcaster maintained that it did not set out to be discourteous to Ms Forbes, Ms Lee or the Authority: ‘And if the [Authority] feels otherwise, we can only say we can’t apologise for giving our honest view’.
Authority’s response to submissions
 First, the Authority does not consider the additional information provided by UMA regarding offers made to Ms Forbes to appear on Paakiwaha affects our findings on fairness. The first offer made to Ms Forbes, from Mr Jackson prior to the broadcast, related to a different matter and cannot reasonably be categorised as a fair opportunity to comment for this particular discussion on Paakiwaha. The second invitation to Ms Forbes, from the producer of Paakiwaha, was made a week after the broadcast and only after Ms Forbes had made her formal complaint. This subsequent offer did not absolve the broadcaster of its obligations under the fairness standard to inform the participants, before the broadcast, of the nature of the broadcast, or to give them a reasonable opportunity to comment for the programme. Ms Forbes declined the offer, as she was entitled to, with the effect that the statements that reflected negatively on her, and Ms Lee’s and Ms Ihaka’s, professional ability remained unchallenged.
 Secondly, we do not think it is appropriate to remove references to Ms Ihaka in this decision. Ms Forbes’ and Ms Lee’s complaints did not solely relate to the unfair and inaccurate statements made about them during the interview, but also to the statements referring to Ms Ihaka. The Authority has jurisdiction to accept complaints from third parties, including in the absence of a complaint from the individual affected. In this case, there was no justification for declining to determine the aspect of the complaints relating to Ms Ihaka, given the issues surrounding fair treatment applied to all three individuals. We therefore stand by our findings in relation to Ms Ihaka.
Authority’s decision on orders
 On the matter of orders, we have carefully considered all of the parties’ submissions and have concluded that an order is not appropriate in this case.
 In reaching this view, we are conscious that the publication and any media coverage of our decision will go some way towards publicly remedying any harm caused to the complainants’ reputations. We also note that this is the first complaint we have upheld against UMA. Our decision should provide clear guidance to the broadcaster of the importance of treating fairly any individuals participating or referred to in programmes, and of the need to make reasonable efforts to ensure accuracy. Broadcasting standards apply universally, and UMA does not operate in an environment where lesser standards apply. The original broadcast, as well as UMA’s response to the complaints, showed a lack of understanding of broadcasting standards. Additionally, Mr Jackson, as an experienced broadcaster, should be well aware of what is required under the relevant standards. We expect both UMA and Mr Jackson to take on board the comments we have made.
Signed for and on behalf of the Authority
1 March 2016
The correspondence listed below was received and considered by the Authority when it determined this complaint:
Mihingarangi Forbes’ formal complaint
1 Mihingarangi Forbes formal complaint – 7 July 2015
2 UMA Broadcasting Ltd’s response to the complaint – 11 August 2015
3 Ms Forbes’ referral to the Authority – 14 August 2015
4 UMA’s response to the Authority – 8 September 2015
5 Ms Forbes’ final comment – 10 September 2015
6 UMA’s final comment – 25 September 2015
7 Ms Forbes’ submission on the provisional decision and orders – 6 January 2016
8 UMA’s submission on the provisional decision and orders – 15 January 2016
Annabelle Lee’s formal complaint
7 Annabelle Lee’s formal complaint – 12 July 2015
8 Ms Lee’s referral to the Authority – 10 August 2015
9 UMA Broadcasting Ltd’s response to the complaint – 17 August 2015
10 UMA’s response to the Authority – 15 September 2015
11 Ms Lee’s further comment – 22 September 2015
12 UMA’s final comment – 7 October 2015
13 Ms Lee’s final comment – 7 October 2015
14 UMA’s submission on the provisional decision and orders – 15 January 2016
15 Ms Lee’s submission on the provisional decision and orders – 15 January 2016
3 See sections 5 and 14 of the New Zealand Bill of Rights Act 1990
4Commerce Commission and TVWorks Ltd, Decision No. 2008-014
5 See, for example, HC and CT and Television New Zealand Ltd, Decision No. 2010-163
6Bush and Television New Zealand Ltd, Decision No. 2010-036
7 Commerce Commission and TVWorks Ltd, Decision No. 2008-014
8 For further discussion of these concepts see Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) and Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Radio (Broadcasting Standards Authority, June 2009)
9Powell and CanWest TVWorks Ltd, Decision No. 2005-125
10 See, for example, Dewe and TVWorks Ltd, Decision No. 2008-076