Hogan and Discovery Ltd - 2021-089 (10 November 2021)
- Susie Staley MNZM (Chair)
- Leigh Pearson
- Paula Rose QSO
- Ralph Hogan
BroadcasterDiscovery NZ Ltd
[This summary does not form part of the decision.]
The Authority has not upheld a complaint alleging an item on Newshub Live at 6pm breached the accuracy standard. The item reported on inconsistencies and ‘a backdown of sorts’ regarding a discussion document on proposed changes to hate speech laws in New Zealand. The Prime Minister and Justice Minister were accused of contradicting each other and the discussion document. As the item was political comment and analysis, the accuracy standard does not apply.
Not Upheld: Accuracy
 An item on Newshub Live at 6pm on 28 June 2021 reported ‘The Prime Minister is being accused of misleading New Zealanders over her Government's hate speech proposals.’ The item opened, ‘Jacinda Ardern has been forced into a backdown of sorts, clarifying the proposed changes. But as Jenna Lynch reports, she and her Justice Minister [Kris Faafoi] still don't appear to be on the same page’:
Lynch: The ultimate generational warfare. No weapons, just words. But does it amount to hate speech? Newshub Nation put the millennial-boomer example to the Justice Minister to test the parameters of its proposed hate speech reforms.
Faafoi: Depends on what you say…If your intent is to incite hatred against them, then potentially.
Lynch: The Prime Minister was played her Justice Minister's comments on The AM Show. Her face says it all. She argued, no.
Ardern: This is about extreme speech where you are inciting violence and hatred.
Lynch: But that's wrong. The proposed threshold can be much lower than inciting violence, [with] the Prime Minister forced to concede that there are other factors too like insulting someone.
Ardern: There's a range of factors, incitement of violence is one of them.
Lynch: …The discussion document is clear. Under the changes, a person would break the law if they intentionally stir up hatred by being threatening, abusive or even just insulting …The proposal has been drawn up in response to the Royal Commission into the Christchurch terror attacks.
Ardern: The reason we're having this debate is because the Royal Commission of Inquiry said to the New Zealand Government, you need to include religion.
Lynch: But the proposed changes go much further than religion. It could cover any groups protected in the Human Rights Act. That includes over 65s, boomers and political opinion. That's not right either. The Prime Minister says cabinet ruled out including political opinion, but it is still included in their discussion document for the public.
Ardern: We removed political opinion. Our view was that if people recommended it be included, they could do so.
Lynch: …Real and hypothetical examples are a great way to test policies. So instead of trying to shut them down, the Prime Minister should simply present the answers and it would help if they're the same answers given by her Justice Minister.
 The broadcast also contained soundbites from National Party Leader Judith Collins (‘this work that the Government has done, is ill thought out and the Prime Minister is wrong. She should pull the plug on it now’) and ACT Party Leader David Seymour (‘Outlawing insulting people on political opinion belongs in North Korea, not New Zealand’).
 Ralph Hogan complained this item ‘was a deliberate misrepresentation of the facts about what the NZ PM Jacinda Ardern had said on the AM Show and in the post-Cabinet interview today concerning hate speech’. He argued:
- The statement she was ‘forced to concede that the proposed changes to hate speech laws involved a much lower threshold’ was inaccurate.
- It was inaccurate to say the Prime Minister was wrong regarding points about the proposed laws, including on the points:
- that political opinion is not included
- that it is about inciting violence and abuse.
The broadcaster’s response
 Discovery NZ Ltd (Discovery) did not uphold the complaint, noting:
…the Prime Minister did disagree with her Justice Minister - she had seen the Newshub Nation interview with him and knew the comments it contained. The current hate speech proposal is as low as 'insulting.' Political opinion is covered in the proposal under section 21 of the Human Rights Act and the Prime Minister’s subsequent withdrawal of it on the hoof was a back down, as the Broadcast reported.
 Discovery submitted the broadcast did not breach the accuracy standard for the following reasons:
- ‘The Broadcast did not say the Prime Minister was misleading the public - it said she was being accused of misleading the public.’
- ‘In the footage from the press conference that day, shown in the Broadcast, the Prime Minister said “we removed political opinion, our view was that if people recommended it be included, they could do so”. The Broadcast pointed out that political opinion is still included in the proposal and covered under s21 of the Human Rights Act.’
- The comments were ‘commentary and analysis’ and ‘were clearly identifiable as such’.
- There were no ‘material errors of fact’; the audience would not have been misled by the reporting.
- ‘It is an important part of the media's role as the Fourth Estate to question public and government officials and hold their statements to account…the Broadcasting Standards Authority has previously recognised that viewers reasonably expect to receive commentary and analysis from political reporters and political correspondents.’1
- The broadcast did not go ‘beyond the level of robust scrutiny and political analysis that could be reasonably expected when a story covers a controversial issue of public importance and issue of public policy such as [this]’.
 The purpose of the accuracy standard2 is to protect the public from being significantly misinformed.3 It states broadcasters should make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.
 Hogan also referred to an online article by Newshub political reporter Tova O’Brien which accompanied the Newshub Live at 6pm broadcast. He submitted it was misleading to say the Prime Minister was incorrect in stating the examples ‘trivialised’ extreme hate speech and that Minister Faafoi had been ‘peppered with examples’. These aspects of the complaint were based on the online article and not the material broadcast. As we are limited to considering broadcast content,4 we have not considered the content of this article.
 The complainant also commented ‘I watched the entire chain of deception throughout the day…the form above did not allow for multiple times and spots and it is beyond my ability to research exactly when each breach occurred’. While this indicates that he is alleging more than one broadcast breached standards, complainants have a responsibility to clearly identify which broadcasts they consider to have breached standards.5 Broadcasters must be properly able to respond to the allegations made in a complaint. A reference to ‘multiple times and spots’ is not sufficiently clear.
 In his original complaint, Hogan named both The AM Show and Newshub Live at 6pm, broadcast on 28 June 2021. However, the substance of his complaint focuses on the online article on Newshub and the content of the Newshub Live at 6pm broadcast. The AM Show is relevant to the complaint in that it informs the accuracy of the Newshub Live at 6pm broadcast, but Hogan has not made allegations of inaccuracy within The AM Show itself. We watched both The AM Show and Newshub Live at 6pm from 28 June, but focused our consideration of the inaccuracies on Newshub Live at 6pm (as the complaint relates to this programme).
 In addition to watching the broadcast, we have read the correspondence listed in the Appendix.
 The right to freedom of expression is an important right in a democracy and it is our starting point when considering complaints. We weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified, in light of actual or potential harm caused.
 The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.6 Whether something is a statement of fact or opinion depends on context and presentation. It is crucial how a reasonable viewer would perceive it.7 The following factors influence how viewers would have perceived the item:
- It was framed as ‘accusations’ regarding the Prime Minister’s comments being misleading, and presenting ‘a backdown of sorts’
- It was a political report analysing how the Prime Minister and the Justice Minister had presented a discussion document on proposed hate speech laws to the public.
- The report contained comments such as ‘forced to concede’, ‘still don’t appear to be on the same page’, and ‘a great way to test policies’, which viewers would understand to be analysis and opinion rather than statements of fact.
 We found the item was typical of political analysis, and viewers would understand it as such. Accordingly, the accuracy standard does not apply.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
10 November 2021
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Ralph Hogan’s complaint to Discovery NZ Ltd – 29 June 2021
2 Discovery NZ’s decision on the complaint – 23 July 2021
3 Hogan’s referral to the BSA – 5 August 2021
4 Discovery NZ’s confirmation of no further comments – 16 August 2021
1 Woods and MediaWorks TV Ltd, Decision No. 2015-062
2 Standard 9 of the Free-to-Air Television Code of Broadcasting Practice
3 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
4 Broadcasting Act 1989, s 2
5 Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58; Broadcasting Act 1989, s 6(1)(a)
6 Guideline 9a
7 Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 64