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 under the fairness, balance, and accuracy standards from environmental protest group Honour the Maunga, about a series of Radio New Zealand broadcasts on 15-19 April 2020. The items concerned the removal of the group’s unoccupied camp from Ōwairaka (Mt Albert) for allegedly breaching lockdown rules. Overall, the Authority found that the series of broadcasts was unlikely to cause undue harm to the reputation of Honour the Maunga, and was unlikely to mislead listeners. This was a series of short news items covering a developing story, which, importantly, included the complainant’s response to the key points in the reports, namely that the group had not breached lockdown rules and was otherwise entitled under the New Zealand Bill of Rights Act to occupy the site. In the context of the evolving story, the suggestion the group had breached lockdown rules was distinguishable as opinion, meaning the accuracy standard did not apply, and in any event, the inclusion of Honour the Maunga’s response mitigated any potential harm.

Not Upheld: Fairness, Balance, Accuracy

The broadcasts

[1]  Over the period from 15 April to 19 April 2020, RNZ National broadcast a series of items concerning the removal of an unoccupied camp belonging to a protest group (Honour the Maunga) from Ōwairaka (Mt Albert) for allegedly breaching COVID-19 lockdown rules. The items included the following:¹

• ‘The protestors’ camp at Auckland’s Ōwairaka, or Mt Albert, has been removed because they have been breaching the lockdown… The Tūpuna Maunga Authority says the group has encouraged protestors to maintain a constant presence at Ōwairaka by occupying the camp in surveillance shifts. The Authority’s chair, Paul Majurey, says their activities were in clear breach of the Level 4 lockdown rules and the removal was necessary to protect the health and safety of people as the COVID-19 crisis continues. He says a letter has been sent to the group outlining the action taken.’ (5pm bulletin, 15 April 2020)
• ‘The protesters’ camp at Auckland’s Ōwairaka or Mount Albert has been removed by the Tūpuna Maunga Authority, which says they were breaching the lockdown… The Authority’s chair, Paul Majurey, says their activities were in clear breach of the Level 4 lockdown rules. …Anna Radford from Honour the Maunga says it was not breaching the lockdown.’ (6pm bulletin, 15 April 2020)
• ‘The protest group against a restoration project on Ōwairaka/Mt Albert refutes that its members breached lockdown rules… The Tūpuna Maunga Authority, along with police, moved two truckloads of items at the site this morning. The Authority says it has evidence protesters were breaching lockdown rules. However, the Maunga spokesperson Anna Radford says that is untrue, as they hadn’t occupied the Maunga at all since lockdown. “As Level 4 came into play, we stood down. Actually, well before then. So, we left the tents in place, but it was clearly unoccupied, and we also had a sign that we left on the site stating that we had stood down while the Level 4 lockdown was in play” – Anna Radford, from Honour the Maunga.’ (7pm bulletin, 15 April 2020)
• ‘A protest camp at Mt Albert/Ōwairaka has been removed because they have been breaching the Level 4 lockdown rules… The Tūpuna Maunga Authority says the protestors have been unlawfully encouraging the members to maintain a constant presence at Ōwairaka by working in surveillance shifts, though the protestors deny this. The Authority’s chair Paul Majurey told our Māori news director…the protestors were in clear breach of the Level 4 lockdown rules and the removal was necessary to protect health and safety.’ (Morning Report, 16 April 2020)
• ‘Paul Majurey is also saying that the protestors are in clear breach of the Level 4 lockdown rules. Is he right?’ ‘No. As soon as – obviously in the lead up to lockdown, like everyone in New Zealand we were unclear about what the rules were, but as soon as the Prime Minister announced clear rules about what was required in the lead up to Level 4, we stood down immediately, and have not been in occupation at all since then.’ (Morning Report, 17 April 2020)
• ‘A protest camp at Ōwairaka has been removed because they have been breaching the Level 4 lockdown rules… The Tūpuna Maunga Authority says the protesters have been unlawfully encouraging the members to maintain a constant presence at Ōwairaka by working in surveillance shifts… The spokesperson for Honour the Maunga, Anna Radford, is refuting that any of her protest group members have breached Level 4 lockdown rules. And on Thursday night, graffiti was sprayed on the public toilets on the Maunga, which read ‘Paul Majurey lies’. The protest group says they had nothing to do with it.’ (The World at 5, 19 April 2020)

[2]  The members of the Authority have listened to recordings of the above broadcasts and have read the correspondence listed in the Appendix.

The complaint

[3]  Honour the Maunga complained that the broadcasts breached the fairness, balance, and accuracy standards of the Radio Code of Broadcasting Practice, on the grounds that it was not given a fair and reasonable opportunity to comment in response, its views on the issue were not adequately presented, and it was inaccurate to report that:

• Honour the Maunga was acting unlawfully including by breaching the lockdown rules and/or by maintaining a constant presence at Ōwairaka.
• The Police supported Honour the Maunga’s removal by the Tūpuna Maunga Authority.
• Honour the Maunga’s occupation of Ōwairaka was unlawful altogether.

The broadcaster’s response

[4]  Radio New Zealand (RNZ) declined to formally consider the complaint in respect of the 15 April broadcast(s), the 16 April broadcast, and the 19 April broadcast, on the basis that they had not been correctly identified. However, it said that, even if these broadcasts had been correctly identified, the complaint would not have been upheld, because:

• The words ‘breaching the lockdown’ were clearly attributed to the Tūpuna Maunga Authority (6pm, 15 April).
• The allegations made by the Tūpuna Maunga Authority, the protesters’ position, and the Tūpuna Maunga Authority’s response were accurately reported (Morning Report, 16 April).
• The statement that the protest camp had been removed ‘because they have been breaching lockdown rules’ was immediately followed by a statement attributing this comment to the Tūpuna Maunga Authority (The World at 5, 19 April).

[5]  RNZ added that, in terms of balance and fairness, the focus was on the removal of the protest camp rather than issues around the validity of the protest, and the significant parties to the issue had both been reported on, such that listeners would have been informed as to their respective positions.

[6]  RNZ did not uphold the complaint about the broadcast of Morning Report on 17 April (correctly identified in the complaint) on the basis that the group’s spokesperson, Ms Radford, was given a reasonable opportunity to respond to the questions put to her regarding Mr Majurey’s allegations that the group had been breaching lockdown rules.

The standards raised

[7]  The fairness standard (Standard 11) 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. A consideration of what is fair will depend on the nature of the programme, and context should be considered (for example, the public significance of the broadcast).²

[8] The balance standard (Standard 8) 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.³ The standard exists to ensure that competing arguments are presented, to enable viewers to arrive at informed and reasoned opinions.

[9]  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 receiving misinformation and thereby being misled. The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.⁴

Overview of our approach and the outcome

[10]  When we consider a complaint that a broadcast has breached broadcasting standards, we first recognise the important right to freedom of expression. Our task is to weigh the value of and public interest in the broadcasts complained about, against the level of actual or potential harm that may have been caused, with reference to the objectives of the standards described above. We may only uphold a complaint where the corresponding limitation of the right to freedom of expression is reasonable and justified.

[11]  Looking first at the value of the programmes complained about, we consider that the broadcasts in question carried a significant level of public interest, in that they reported on:

• an ongoing public dispute between Honour the Maunga and the Tūpuna Maunga Authority; and
• issues of compliance with lockdown rules.

[12]  Weighing this value and public interest against the alleged harm, we consider the complainant’s underlying concern is that the broadcasts have caused harm to the reputation of Honour the Maunga (rather than harm to the audience in general, for example through misinformation), because of the way RNZ reported on the action taken by the Tūpuna Maunga Authority, and on the allegations that formed the basis for this action. Given this, we consider the core issue in this case is one of fairness, and have focussed our determination accordingly. In doing so, we have considered the overall impression created by the series of broadcasts, from the perspective of the average listener, and the adequacy of the opportunity given to Honour the Maunga to respond to the developing story, rather than examining each and every statement or detail identified in the complaint. 

[13]  For reasons that we outline below, we have found that the broadcasts did not cause harm at a level that justifies a limitation of the right to freedom of expression. The series of broadcasts each offered bite-sized insights into a developing story, within time-constraints and in a manner that, in our view, gave both parties involved a fair and reasonable opportunity to comment and present their points of view. In this respect our findings in relation to fairness (and balance) also informed our determination that listeners were unlikely to have been misled.

Fairness

[14]  The objective in assessing fairness is to weigh broadcasters’ rights to freedom of expression against the right of individuals and organisations to be treated fairly. The Codebook recognises that it is challenging for broadcasters to navigate the line between disseminating information to their audiences which is in the public interest, and the risk of overstepping and causing ‘unfair’ harm to individuals and organisations. The bottom line is that individuals and organisations have the right to expect they will be dealt with justly and fairly and protected from unwarranted damage.⁵

[15]  Generally, a consideration of what is fair will take into account the following:⁶

• whether the audience would have been left with an unduly negative impression of an individual or organisation
• whether an individual or organisation taking part or referred to in a programme was adequately informed of the nature of their participation
• whether informed consent was required and/or obtained
• whether the individual or organisation was given a reasonable opportunity to comment, and whether their comments were adequately presented in the programme
• the nature of the individual, for example, a public figure or organisation familiar with dealing with the media, as opposed to an ordinary person with little or no media experience
• whether any critical comments were aimed at the participant in their business or professional life, or their personal life
• the public significance of the broadcast and its value in terms of free speech.

[16]  In this case, we noted the following contextual factors as being relevant to our consideration of whether, overall, Honour the Maunga was treated fairly:

• The broadcasts were news and current affairs programmes.
• The broadcasts carried a significant level of public interest.
• The broadcasts were bulletin-style reports characterised by sound-bites and brevity, meaning there were limits as to what could reasonably be included.
• The broadcasts concerned a developing story, which was built on over a number of days.
• Some of the broadcasts followed each other in quick succession (particularly on 15 April 2020, with three broadcasts in three hours).
• It appears the dispute between Honour the Maunga and the Tūpuna Maunga Authority is public, long-standing and ongoing, with both parties publicly criticising each other in the past.⁷
• Honour the Maunga is a protest group that, by its nature, seeks publicity for its cause, and therefore can reasonably expect to be the subject of some coverage and public scrutiny.

[17]  In this context, we consider that Honour the Maunga was treated fairly. It was adequately informed of the nature of its participation in the broadcasts (guideline 11b), and given a fair and reasonable opportunity to respond (guideline 11d).

[18]  Out of the six broadcasts we have considered (described in paragraph [1]), five reported the position and/or verbatim response of Honour the Maunga. The 7pm bulletin on 15 April 2020 included an excerpt from an interview with Ms Radford as spokesperson for the group (7pm, 15 April), and the 17 April Morning Report broadcast consisted entirely of an interview with Ms Radford.

[19]  The 5pm bulletin on 15 April 2020 was the only one of the six that did not include any mention of Honour the Maunga’s position. However, we note the item was brief and signified the breaking of the latest development in the ongoing story. As we have said, this was then followed by two further items at 6pm and 7pm (as well as the reports in the days following), which built on this initial report and did include responses from Honour the Maunga. We are satisfied that this mitigated any potential harm arising from the omission of its response in the first item.

[20]  We have also considered the complaint that three of these five broadcasts referred to the Tūpuna Maunga Authority’s decision to take action ‘with the support of the police’ (6pm, 15 April; 16 April; and 19 April), and one referred to the Tūpuna Maunga Authority removing the items ‘along with police’ (7pm, 15 April). We do not think these brief references would have been taken as suggesting any level of criminal liability or prosecution, or that they required a specific comment in response, in the interests of fairness. More likely, listeners would have understood this reference in the context of the lockdown environment at the time and with respect to the actions of the Tūpuna Maunga Authority.

[21]  For these reasons, we have not found actual or potential harm under the fairness standard that justifies regulatory intervention or restricting the right to freedom of expression. Therefore, we do not uphold the fairness complaint.

Balance

[22]  The balance standard (Standard 8), which requires broadcasters to present significant alternative viewpoints, applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance.

[23]  In considering whether these broadcasts fell into this category and triggered the requirements of the standard, we have taken into account: the longstanding and public nature of the dispute over the felling of non-native trees on Ōwairaka; the heightened sensitivity around compliance with lockdown rules; and public interest in the COVID-19 crisis more broadly. In light of these factors, we consider the issue of Honour the Maunga’s alleged non-compliance with lockdown rules at Ōwairaka amounted to a controversial issue of public importance to which the balance standard applied.

[24]  For the reasons we have outlined in relation to the fairness standard, we are also satisfied that RNZ made reasonable efforts to provide sufficient balance on this issue within the period of current interest. The focus is on whether the audience would be misinformed by the omission of a particular viewpoint. As we have said, five of the six broadcasts reported Honour the Maunga’s response to the allegations it was breaching lockdown rules, including a longer interview with Ms Radford on 17 April 2020. Therefore, we do not think listeners would have been left uninformed on the issue or unaware of Honour the Maunga’s position.

[25]  Accordingly, we do not uphold the complaint under the balance standard.

Accuracy

[26]  The accuracy standard is concerned with protecting the audience from receiving misinformation and thereby being misled. The standard is concerned only with material inaccuracy. For example, technical or unimportant points unlikely to significantly affect the audience’s understanding of the programme as a whole are not material.⁸ In the event that a material error of fact has occurred, broadcasters should correct it at the earliest appropriate opportunity.⁹

[27]  The complainant’s primary concern appears to be that the items stated as fact that Honour the Maunga had breached lockdown rules, which in its view was inaccurate. The broadcaster’s response to this was that the suggestion of non-compliance with the rules was clearly attributed to the Tūpuna Maunga Authority, as its view, rather than having been stated as fact.

[28]  We agree with the broadcaster, that in all instances bar one, the statement that Honour the Maunga was breaching lockdown rules was clearly distinguishable as the Tūpuna Maunga Authority’s opinion, rather than a statement of fact. The only instance where the allegation was not attributed to the Tūpuna Maunga Authority was in the initial bulletin at 5pm on 15 April 2020. However, we are satisfied that this was corrected in the bulletins that followed shortly after and over the course of the series of broadcasts, which also included Honour the Maunga’s position in response. These factors mitigated the risk of any harm arising.

[29]  Regarding the statements about the legality of Honour the Maunga’s occupation of Ōwairaka generally, and Tūpuna Maunga Authority’s decision to take action ‘with the support of the police’ or ‘along with police’:

• We consider that they were immaterial to the focus of the broadcasts, which was concerned with the removal of the protest camp on the basis of an alleged breach of lockdown rules.
• It is not our role, nor are we able, to determine whether or not Honour the Maunga was acting unlawfully with respect to its occupation of Ōwairaka generally.
• In any event, over the course of the developing story, the key points of Honour the Maunga’s position were reported, including that it had not breached lockdown rules, and that under the New Zealand Bill of Rights Act the protest group was entitled to be there.

[30]  Overall, we consider that listeners were unlikely to have been misled and we find no breach of the accuracy standard. We have not found actual or potential harm that justifies restricting the right to freedom of expression.

[31]  Therefore, we do not uphold this part of the complaint.

For the above reasons, the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Judge Bill Hastings
Chair
14 October 2020

Appendix

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

1  Honour the Maunga’s original complaint – 22 April 2020

2  RNZ’s response to the complaint – 20 May 2020

3  Honour the Maunga’s referral to the Authority – 3 June 2020

4  RNZ’s confirmation of no further comment – 8 July 2020

5  Correspondence with complainant and broadcaster regarding identification of broadcasts complained about – 12 June- 21 August 2020

¹ There was some confusion and dispute about which particular broadcasts were identified in the original complaint to the broadcaster, and therefore which broadcasts the Authority has jurisdiction to consider. After further clarification and submissions from both parties, we have focussed our determination on the broadcast items described in paragraph [1].
² Guideline 11a
³ Guideline 8a
⁴ Guideline 9a
⁵ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁶ As above
⁷ ‘Honour the Maunga slams $1.1 million budget to cut down 345 trees on Owairaka/Mt Albert’ (Stuff, 25 February 2020)  
⁸ Guideline 9b
⁹ Guideline 9c