BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

[This summary does not form part of the decision.]

The Authority has not upheld a complaint about an item on 1 News including criticism of Easter trading restrictions and of the councils imposing them, in the wake of COVID-19 and its impact on retailers. The complainant alleged the item was unbalanced on the basis it failed to include the views of the councils being criticised, and of others who supported current restrictions, such as unions and churches. The Authority found, in the context of an item discussing criticism of the status quo, and where debate about Easter trading restrictions and coverage of such debate is ongoing, viewers were unlikely to be left misinformed by the broadcast.

Not Upheld: Balance

The broadcast

[1]  An item on 1 News, broadcast on TVNZ 1 on 4 April 2021, included criticism of Easter trading restrictions and of the councils imposing them, in the wake of COVID-19 and its impact on retailers. The item included comments from the chief executive of Retail NZ, Greg Harford, and from Mark Knoff-Thomas of Newmarket Business Association:

Presenter:                   With retailers continuing to feel the impacts of COVID-19, some are criticising councils that have forced shops to remain closed on Easter Sunday. Two thirds of our smaller centres have allowed retailers to operate, but major cities like Auckland, Wellington, Christchurch and Dunedin are proving slow to follow suit. [Reporter] has more.

Reporter:                     Closed signs abound in the streets of our main centres. A sign councils are failing to keep up with the times, according to Retail New Zealand.

Mr Harford:                  The current Easter trading restrictions are positively archaic. Essentially you can’t open your store unless your council has said that you’re able to do so.

Reporter:                     But in places like Queenstown, it’s business as usual this Easter Sunday.

Mr Harford:                  Many provincial centres have come to the party to try to support their retailers. But big cities like Auckland, Wellington, Christchurch and Dunedin have steadfastly refused to allow shops to open their doors.

Mr Knoff-Thomas:       What I would have liked to have seen is Auckland Council walk the talk and say actually this year, even as a one-off, we’re going to allow Easter trade across the board, just to give businesses a bit of a nudge up.

The complaint

[2]  Gerard Hehir complained the broadcast breached the balance standard:

• ‘The item on Easter Trading was unbalanced and biased.’
• ‘The studio introduction stated that major cities “are proving slow to follow suit”…and this implies that them opening up Easter Trading is an inevitability or [not doing so is] due to inefficiency or delay. This is simply wrong.’
• ‘The report that followed…quoted and interviewed retailers extensively and repeated their talking points. There was no attempt to put the view of the councils being directly criticised, or of other parties who have made their support for continued restricted trading hours very public and clear – unions and churches to name just two.’

[3] In his referral to the Authority, and in light of the broadcaster’s response to his complaint, as below, Mr Hehir also submitted:

• The item of 2 April 2021, which the broadcaster claimed provided balance, only included council representation from Queenstown Lakes, ‘which supports Easter trading expansion and strongly expressed that view’.
• The inclusion in the item of 2 April of a union perspective was insufficient to mitigate the ‘completely unbalanced’ nature of the item of 4 April.
• ‘In the 21st Century when most people gather news [from] a wide range of sources every day it is ridiculous to completely rely on viewers having viewed all items in the week beforehand to achieve balance.’

[4]  In his referral, Mr Hehir also sought to complain under the accuracy standard, and argued this was implied in his original complaint, where he submitted the introductory comments carried implications that were ‘simply wrong’.

[5]  Pursuant to section 8(1B) of the Broadcasting Act 1989, we are only able to consider Mr Hehir’s complaint under the standard or standards raised in the original complaint to the broadcaster. The High Court has clarified that in certain circumstances:¹

…it is permissible [for the Authority] to fill gaps…or cross boundaries between Code standards…but only if these things can be done within the wording, reasonably interpreted, of the original complaint, and if a proper consideration of the complaint makes that approach reasonably necessary…

[6]  Mr Hehir’s complaint is primarily about the exclusive priority given to particular views opposing Easter trading restrictions in the broadcast, and the failure to include alternative views. Mr Hehir clearly disagrees with the views presented, and this is reflected by his submission that the introductory comments about ‘major cities…proving slow to follow suit’ carry implications that are ‘simply wrong’. However, these introductory comments are not statements of fact to which the requirement for factual accuracy applies and, in our view, it is not reasonably necessary to imply the accuracy standard to properly consider Mr Hehir’s complaint. The complaint can be addressed, and is more appropriately addressed, under the balance standard.

[7]  Accordingly, we do not consider the accuracy standard below.

The broadcaster’s response

[8]  TVNZ did not uphold Mr Hehir’s complaint:

• ‘It is an established principle of this [balance] standard that programmes can portray an issue from a particular perspective as long as this is clearly signalled in the programme. The Committee considers it was clearly signalled that the 4 April item was focused on the perspective of retailers.’
• ‘Moreover, as provided by guideline 8c, the balance standard allows for balance to be achieved in other coverage… 1 News ran two stories about Easter retail trading restrictions over Easter weekend: the Easter Sunday story that is the subject of [this] complaint, and an earlier story that aired on Good Friday.’
• ‘We spoke to the reporter responsible for both stories, who explained that she was satisfied that the Union perspective had been adequately represented in the first story.’
• ‘[I]t is likely that the audience would have had a reasonable understanding of the reasons for Easter retail trading. In our view it was not necessary in the interests of balance to get the perspective of the large city councils.’

The standard

[9]  The balance standard² ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.³ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.⁴

Our analysis

[10]  We have watched the broadcast and read the correspondence listed in the Appendix.

[11]  We have also considered the right to freedom of expression, which is our starting point. This includes the broadcaster’s right to offer a range of information, ideas and opinions, and the audience’s right to receive those. Our task is to weigh the value of, and public interest in, the broadcast against the level of actual or potential harm that may have been caused, with reference to the balance standard's objectives. We may only intervene and uphold a complaint where the level of harm justifies placing a reasonable limit on the right to freedom of expression.

[12]  For the reasons set out below, we have not found such harm in this case.

Does the balance standard apply?

[13]  For the balance standard to apply, the subject matter of the broadcast must be: an issue of ‘public importance’; ‘controversial’; and ‘discussed’ in a news, current affairs or factual programme.⁵

[14]  We consider the issue of Easter trading restrictions to be a controversial issue of public importance, which was discussed in this news broadcast.

[15]  Therefore, the balance standard applies.

The period of current interest

[16]  The wording of the balance standard is clear that a broadcaster should make reasonable efforts to present significant perspectives ‘either in the same programme or in other programmes within the period of current interest’. This means balance is allowed to be achieved over time, and broadcasters are not required to present every perspective on a controversial issue within every broadcast discussing that issue.⁶ Placing such a requirement on broadcasters would itself unreasonably limit their exercise of freedom of expression and editorial control, and in particular their freedom to present programmes or interviews from a particular perspective.⁷

[17]  Given the ongoing nature of discussion and debate about Easter trading restrictions, reflected by its ongoing currency in media,⁸ and its ongoing coverage by multiple broadcasters and media outlets, we consider the period of current interest in this case is ongoing.

Assessment of whether reasonable range of perspectives presented

[18]  Our task, then, is to assess whether the range of perspectives presented by TVNZ within the period of interest was reasonable. The Authority takes a common sense approach, which reflects the present broadcasting environment (identified by the complainant) and, in particular, increased flows of information, the proliferation of broadcast and other forms of media, and a more discerning viewing public.⁹

[19]  In that context, we found the broadcaster presented a reasonable range of perspectives, taking into account:¹⁰

• The programme did not purport to be a balanced examination of the issue, but rather a presentation of criticism of Easter trading restrictions and of the councils imposing them.
• The programme was clearly signalled in its introduction as approaching the issue from the particular perspective of those opposed to Easter trading restrictions in the wake of COVID-19 and its impact on retailers.
• This perspective represented one aspect of a larger, ongoing debate about Easter trading restrictions. As above, it is not necessary for each and every programme to canvass all significant views on a particular topic.
• When criticism to the status quo is presented, viewers can reasonably be expected to be aware of perspectives which support the status quo.¹¹
• In particular, viewers could reasonably have been expected to be aware of alternative views regarding Easter trading restrictions, considering:
  (a)  The issues have been widely canvassed in news media, both by TVNZ and other outlets.¹²
  (b)  TVNZ has presented alternative perspectives on the issue, including:¹³
  First Union spokesperson Paul Watson, on 2 April 2021, describing the restrictions as providing ‘one of the breaks that workers can have off and spend time with their loved ones’, and describing supermarkets flouting the rules in terms of ‘pure greed’.
  (c)  The online version of the 1 News’ item on 4 April 2021 includes reference to Mr Watson’s perspective as presented in the item of 2 April 2021.¹⁴
  (d)  Given the long-term interest in this issue, which surfaces every Easter holiday weekend, we consider viewers could reasonably be expected to be aware of the variety of views as expressed in other coverage, including other forms of media.

[20]  Additionally, as above, we consider this area remains an ongoing topic of discussion and debate, and the period of current interest is ongoing. It has received coverage since the broadcast, which included the views of First Union in favour of current restrictions and harsher penalties for rule breakers,¹⁵ and of Auckland Mayor Phil Goff in defence of the maintenance of restrictions in Auckland.¹⁶ It is likely to continue to receive further coverage in future, canvassing opposing perspectives.

[21]  In these circumstances, viewers were unlikely to be left misinformed by the broadcast.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Acting Chair
24 August 2021    

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:

1  Gerard Hehir’s formal complaint – 6 April 2021

2  TVNZ’s response to the complaint – 1 June 2021

3  Mr Hehir’s referral to the Authority – 2 June 2021

4  TVNZ’s response to the referral – 24 June 2021

5  Mr Hehir’s final comments – 1 July 2021

6  TVNZ’s final comments – 2 July 2021

¹ See Attorney General of Samoa v TVWorks Limited, CIV-2011-485-1110 at [62]
² Standard 8 of the Free-to-Air Television Code of Broadcasting Practice
³ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁴ As above
⁵ Guideline 8a
⁶ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁷ See Bidwell and Radio New Zealand Ltd, Decision No. 2020-003 at [15]
⁸ “Easter Sunday shopping to be determined by local councils under new law” 1 News (online ed, 24 August 2015); “Unions aren’t convinced on Easter Sunday trading” 1 News (online ed, 25 August 2015); “Reverend: Holidays shouldn't be about commercialism” 1 News (online ed, 28 August 2015); “National MPs forced to vote for councils to set their own Easter Sunday trading policy” 1 News (online ed, 23 August 2016); Matthew Theunissen “Retailers baffled by Easter trading laws” NZ Herald (online ed, 11 April 2017); “Not everyone happy about Dunedin's Easter trading changes” 1 News (online ed, 11 December 2017); Chloe Winter “Easter trading: Who can open and when?” Stuff (online ed, 25 March 2018); Emily Cooper “Confusion reigns over trading laws this Easter weekend” 1 News (online ed, 30 March 2018); “Auckland retailers happy Easter trading rules haven't changed” NZ Herald (online ed, 19 April 2019)
⁹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹⁰ Guideline 8c
¹¹ See, for example: Family First New Zealand and Radio New Zealand Ltd, Decision No. 2021-046 at [9]
¹² Ripu Bhatia “Covid-19-affected businesses frustrated over Easter Sunday trading restrictions” Stuff (online ed, 29 March 2021); ACT New Zealand “Easter Trading Bill Long Overdue, Deserves Government Support” Scoop (online ed, 2 April 2021); “Wānaka supermarkets flout trading rules and open on Good Friday” 1 News (online ed, 2 April 2021); “Complaint over Wānaka supermarkets flouting Easter trading rules” RNZ (online ed, 2 April 2021); “'Idiotic': ACT MP hopes new Bill will fix Easter trading rule that 'hurts small business' Newshub (online ed, 3 April 2021); “Councils in major cities under fire for forcing shops to close on Easter Sunday” 1 News  (online ed, 4 April 2021); Tina Law “Debate continues over Easter trading laws” Stuff (online ed, 5 April 2021); “Phil Goff on Auckland Easter trading laws” RNZ (online ed, 6 April 2021); “Phil Goff defends Auckland Easter trading rules” RNZ (online ed, 6 April 2021)
¹³ “Wānaka supermarkets flout trading rules and open on Good Friday” 1 News (online ed, 2 April 2021); also see: “National MPs forced to vote for councils to set their own Easter Sunday trading policy” 1 News (online ed, 23 August 2016); and “Reverend: Holidays shouldn't be about commercialism” 1 News (online ed, 28 August 2015)
¹⁴ “Councils in major cities under fire for forcing shops to close on Easter Sunday” 1 News (online ed, 4 April 2021)
¹⁵ Tina Law “Debate continues over Easter trading laws” Stuff (online ed, 5 April 2021)
¹⁶ “Phil Goff on Auckland Easter trading laws” RNZ (online ed, 6 April 2021); “Phil Goff defends Auckland Easter trading rules” RNZ (online ed, 6 April 2021)