Godinet & Kay and NZME Radio Limited - 2020-101 (16 December 2020)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- Sue Godinet & Hamish Kay
ProgrammeKerre McIvor Mornings
BroadcasterNew Zealand Media and Entertainment
Channel/StationNewstalk ZB # 2
[This summary does not form part of the decision.]
The Authority did not uphold complaints that an item on Kerre McIvor Mornings breached the accuracy standard. The content was likely to be interpreted as commentary and opinion, and not statements of fact to which the accuracy standard applied. In terms of the balance standard, it was clearly presented from the host’s perspective. Given the nature of the programme, listeners were unlikely to have been misled by the omission of other views. The Authority also found that, in its context, the segment was unlikely to cause widespread undue offence or undermine widely shared community standards, did not actively promote serious antisocial or illegal activity and was not unfair to the Government or Prime Minister. Accordingly it did not breach the good taste and decency, law and order or fairness standards.
Not Upheld: Accuracy, Balance, Good taste and decency, Law and order, Fairness
 In a Newstalk ZB segment of Kerre McIvor Mornings on 16 July 2020, Ms McIvor made the following comments:
…I want to come back to a call we had yesterday…[a listener] phoned in. He was dead against any kind of relaxation of our border controls and he said the reason he was terrified of the border controls being relaxed was that COVID-19 would get amongst the community. I asked him exactly what he was concerned about…
[A clip from the earlier broadcast is played with the caller’s answer to this question: ‘It might kill me. I’ve got no reason to think that it won’t…’]
…the reason why [people such as this listener] are so terrified - because of the climate of fear that has been perpetuated from day one. We have been told that bodies will stack up in the streets…which has happened in other countries. But it hasn’t happened here…because we can keep ourselves protected from the worst of it but there [have] almost certainly been cases of COVID within the community and nothing has happened.
If you look back to when returning New Zealanders were required to go into isolation…we were told that there were processes in place…that we would be kept safe from any New Zealanders returning with COVID-19 because all of these processes were in place, but they weren’t as we found out. None of those processes were happening. Returnees were mingling with one another…no testing was being done, it was a shambles. So, that changed…and the processes…were finally put into place…and since [then] there have only been 5 days where people haven’t tested positive for COVID…so since [then] just about every single day we’ve had somebody who’s come back from another country who’s tested positive. It defies belief that all of those people who left the shambolic isolation, of all those people, not one of them had COVID. Based on the modelling, based on the numbers, at least four or five people who left isolation between the 10th of April and the 17th of June would have had COVID, so it has come into the community and nothing's happened.
...And yesterday, we had the Prime Minister standing up in the Beehive warning New Zealanders that just because we hadn't detected any community transmission in 75 days, that could end at any time, the virus could escape New Zealand facilities like it's some kind of sociopathic maniac. Lockdowns will be thrown around any community transmission, entire cities and regions will be cut off. The military will be called in. The whole country could return to level four. No wonder [people such as the caller] are fearful. She is creating a climate of terror designed to keep people cowed and bowed. It's cynical.
And I, I believed she was acting in the best interests of the country and I think she was in the beginning, and now it's become almost a mania. I think it's absolutely reprehensible to keep people in a state of fear. It's not just destroying the economy, it's destroying people's well-being, it's destroying their sense of self... It's destroying their peace of mind. When you have got people who are so scared that they're terrified to leave the house as happened during lockdown because they were so scared that if they went out and somebody coughed, that they would immediately get COVID-19 and die. That is not based on fact. That is not based on science. That is not based on statistics. And yet, because of this climate of fear that is continuing to be perpetuated there are people who genuinely believe that this is the biggest threat they face.
…It's now being used politically, I believe, and that is absolutely appalling. What do you think's going to happen if COVID gets in the community. That I will die? Chances are you won't. Chances are we've already had COVID in the community. The public health system wasn't overwhelmed, the few ice skating rinks we have in the country weren't filled to the ceiling with corpses. Reprehensible bullshit that's coming out of this Government. Newstalk ZB, it's twenty past nine.
 We have listened to a recording of the broadcast and read the correspondence listed in the Appendix.
 Hamish Kay and Sue Godinet complained the broadcast breached the accuracy standard of the Radio Code of Broadcasting Practice.
 Ms Godinet complained the following statements made by Ms McIvor were inaccurate:
- ‘But there [have] almost certainly been cases of COVID within the community and nothing has happened.’
- ‘Based on the modelling, based on the numbers, at least four or five people who left isolation between the 10th of April and the 17th of June would have had COVID, so it has come into the community and nothing's happened.’
- ‘Chances are we've already had COVID in the community.’
 Mr Kay also complained that the item breached the following standards:
- Good taste and decency
- Law and order
 He argued:
‘[The segment] was a scaremongering, baseless, partisan attack on the [G]overnment’s COVID-19 response that only [served] to create division and distrust of the government in a dishonest factless way...[it] incited flouting [and] general distrust…against the government’s COVID-19 warnings [and] can endanger listeners’ lives who will not think COVID-19 is a big threat. This is irresponsible broadcasting given her platform and listening base. We are in a national emergency [and] she is inspiring contempt towards the response to this emergency.’
The broadcaster’s response
 NZME did not uphold the complaints for the following reasons:
- The accuracy standard does not apply to Ms McIvor’s comments as they are clearly distinguishable as analysis, comment or opinion. The statements were ‘Ms McIvor’s analysis of the likelihood of community transmission, due to deficiencies in the quarantine and testing processes that resulted in potentially up to 1,000 people leaving quarantine without being tested.’
- This was a talkback show and while topical issues were discussed, ‘listeners would not have expected a balanced or authoritative examination of these issues in the context of the talkback environment’.
Good taste and decency
- Newstalk ZB is targeted at adults between 30 to 64 years of age.
- Ms McIvor is a host known for her ‘frank and forthright discussion of all manner of topics and regular listeners would be aware of this’.
- Talkback is an environment where robust challenging statements and opinions are to be expected and tolerated and ‘talkback hosts are known for making provocative statements to stimulate robust debate’.
- The word ‘bullshit’ was not surveyed in the BSA’s 2018 Language that May Offend in Broadcasting research, but the word shit (used in the context of a radio host in talkback) was only considered unacceptable by 42% of listeners surveyed.
- The harm did not outweigh the host’s right to freedom of expression.
Law and order
- The host did not encourage listeners to break the law or engage in antisocial activity. ‘The focus of the host’s criticism was directed at the Prime Minister and her Government for what she viewed as a cynical attempt to garner political support by speaking to people’s fears around the pandemic.’
- ‘While the host was critical of elements of the Prime Minister’s speech…we do not consider that the host’s comments resulted in unfairness to the Prime Minister or to her Government. At a time of national emergency, when civil liberties have been curtailed, the media has an important role to play in casting a critical eye on the Government’s decisions, and to hold the Government to account. Prime Minister Ardern, as an experienced public figure, would expect no less.’
 The purpose of the accuracy standard is to protect the public from being significantly misinformed.1 Broadcasters should make reasonable efforts to ensure any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.
 The balance standard 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.
 Good taste and decency requires broadcasters to maintain current norms of good taste and decency consistent with both the context of the programme and wider broadcast.
 Law and order requires broadcasters to observe standards consistent with the maintenance of law and order, taking into account both the context of the programme and the wider context of the broadcast. It does not require broadcasters to promote law and order, or prevent genuine criticism – even provocative criticism – of laws or their enforcement by the courts and police. Context is crucial in assessing the programme’s likely effect and the level of public interest in a programme will be a significant factor.
 Fairness requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme. The standard’s purpose is to protect the dignity and reputation of those featured or referred to in a broadcast.
 The right to freedom of expression is important in a democracy. Our starting point is to weigh the right to freedom of expression against the harm that may have been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.
 Open and robust scrutiny of the Government during a time of crisis carries high public interest and value. In these cases, we are reluctant to intervene in the absence of a correspondingly high level of harm. For the reasons set out below, we consider any potential harm caused by this broadcast insufficient to justify our intervention.
 The accuracy standard only applies to news, current affairs and factual programming. Kerre McIvor Mornings discussed news and current affairs, and therefore falls within this category.
 It does not apply to statements clearly distinguishable as analysis, comment or opinion. While Mr Kay’s complaint refers to the segment in general as ‘baseless’, Ms Godinet highlighted the following statements as inaccurate:
- ‘But there [have] almost certainly been cases of COVID within the community and nothing has happened.’
- ‘Based on the modelling, based on the numbers, at least four or five people who left isolation between the 10th of April and the 17th of June would have had COVID so it has come into the community and nothing's happened.’
- ‘Chances are we've already had COVID in the community.’
 The following are relevant in assessing whether these are statements of fact, comment, analysis or opinion:2
- Kerre McIvor Mornings is a weekday talkback show with a host that is known to be ‘sharp’ and ‘bold’.3 NZME notes that she is ‘known for her frank and forthright discussion of all manner of topics’.
- The audience would reasonably expect the content of Ms McIvor’s segments to be an expression of her opinion based on her analysis of the news or events.
- The language used in the specific statements highlighted is consistent with their being analysis and speculation drawn from her observations, eg ‘chances are’, ‘would have’ and ‘almost certainly’.
- Throughout the broadcast, Ms McIvor uses the phrases, ‘I think’ and ‘I believe’.
- Ms McIvor’s statements are frequently hyperbolic. She uses terms like ‘shambolic’ and says ‘we have been told that bodies will stack up in the streets.’ She finishes with her claim about the Government spreading ‘reprehensible bullshit’.
 We however also note:
- Ms McIvor has an authoritative tone and is convincing.
- There are facts and figures in her discussion which she appears to lump together with her commentary, using these to support her views, in particular her statement that ‘there [have] almost certainly been cases of COVID within the community’.
 The key consideration is the listeners’ likely interpretation. Weighing up the factors, we find a reasonable listener will likely have interpreted the statements identified by Ms Godinet as statements of opinion and commentary. For the same reasons, listeners will likely have interpreted the segment as commentary and opinion.
 The accuracy standard therefore does not apply and we do not uphold this aspect of the complaints.
 We agree that the balance standard applies as a controversial issue of public importance was discussed: the Government’s response to COVID-19.
 However we do not consider it was necessary for this item to include further perspectives for the following reasons:4
- This is a talkback show where topics are presented from the host’s perspective.
- A reasonable listener is likely to have interpreted the content as commentary and statements of opinion.
- Listeners can be expected to have been aware of other views and news items around the issue given its topicality and importance.
- It is a subject widely covered by the media.
 Given the above, listeners were unlikely to have been misled by the omission of any other views.
 We therefore do not uphold the balance complaint.
Remaining standards raised
 We do not uphold the complaint under the remaining standards raised for the reasons set out below:
- Good taste and decency: In the context of a talkshow programme targeted at adults, nothing said by Ms McIvor was likely to cause widespread undue offence, or undermine widely shared community values. In addition, while the word ‘bullshit’ was not tested in our Language that May Offend in Broadcasting research referred to by the broadcaster (at paragraph ), the word ‘shit’ only ranked 30 (out of 31) for overall unacceptability.5
- Law and order: The segment does not actively promote serious antisocial or illegal behaviour.6 Criticism and robust scrutiny of Government actions is of high public value, at all times and particularly at times of crisis. We would be very cautious about a finding that such criticism, in and of itself, encouraged non-compliance with the law. While Ms McIvor was critical of Government, her key message was to challenge the basis for a ‘climate of fear’ rather than to discourage observance of Government measures to control COVID-19.
- Fairness: The segment was critical of the Government and Prime Minister, but public figures can reasonably expect to be scrutinised and challenged by the media.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
16 December 2020
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Hamish Kay’s original complaint to NZME – 16 July 2020
2 Sue Godinet’s original complaint to NZME – 17 July 2020
3 NZME’s response to Mr Kay – 12 August 2020
4 NZME’s response to Ms Godinet – 17 August 2020
5 Mr Kay’s referral to the BSA – 26 August 2020
6 Ms Godinet’s referral to the BSA – 17 August 2020
7 NZME’s further comments on Ms Godinet’s referral – 2 September 2020
8 NZME’s further comments on Mr Kay’s referral – 10 September 2020
9 Ms Godinet’s final comments – 26 September 2020
10 Mr Kay’s final comments – 2 October 2020
1 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
2 Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 64
3 NewstalkZB “Kerre McIvor Mornings” <www.newstalkzb.co.nz>
4 Commentary: Balance, Broadcasting standards in New Zealand Codebook, page 18
5 Language that May Offend in Broadcasting, June 2018, Broadcasting Standard Authority, page 6
6 Guideline 5a