Hutchinson and Television New Zealand Ltd - 2020-073 (16 December 2020)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- David Hutchinson
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
The Authority has not upheld a complaint about an item on 1 News covering police brutality in the United States of America and comments made by its President Donald Trump about deceased victim of police brutality, George Floyd. The item reported Mr Trump was ‘copping more flack’ for his comments and that, ‘celebrating better than expected employment numbers, he bizarrely called it a great day for George Floyd’. To the extent the broadcast may be considered inaccurate or misleading for suggesting an incorrect interpretation of Mr Trump’s comments, the Authority found it was not material. The Authority also considered Mr Trump is a high profile politician and public figure and could have reasonably expected to be subject to such scrutiny.
Not Upheld: Accuracy, Fairness
 On 6 June 2020 at 6pm, an item on 1 News reported on police brutality in the United States of America and comments made by President Donald Trump about deceased victim of police brutality, George Floyd:
Melissa Stokes: There's renewed anger in the United States as evidence mounts of police brutality. More videos have emerged showing police violently lashing out at demonstrators…
Paul Hobbs: As the heat in the protests around the death of George Floyd appears to have cooled. More videos of police brutality have just fired up outrage again…
…Authorities under intense pressure to explain incidents like these…
But inside the White House the President copping more flack, celebrating better than expected employment numbers, he bizarrely called it a great day for George Floyd.
 The item then included a clip of Mr Trump’s comments, followed by a clip of then Democratic Party Presidential Primary Candidate Joe Biden’s response:
Mr Trump: Hopefully, George is looking down right now and saying this is a great thing that's happening for our country. This is a great day for him. It's a great day for everybody.
Mr Biden: George Floyd’s last words ‘I can't breathe’ have echoed all across this nation. For the President to try to put any other words in the mouth of George Floyd, I frankly think is despicable.
 Finally, the item reported on criticism Mr Trump received from his former Chief of Staff, John Kelly, who described him as ‘a threat to the Constitution’.
 David Hutchinson complained the item breached the accuracy and fairness standards for the following reasons:
- Mr Hobbs denigrated Mr Trump by stating he called good economic data ‘a great day for George Floyd’, when in fact he was referring to growing calls for equal justice under the law.
- The denigration of Mr Trump has been a recurring pattern on TVNZ 1, which was not seen in respect of his predecessor.
- The Washington Post, which had run a similarly erroneous account of Mr Trump’s remarks, issued a correction as follows: ‘A previous version of this story incorrectly said that the president called the jobs report a “great day” for George Floyd, the black man killed by white police in Minneapolis. In fact, the president was referring to growing calls for equal justice under the law’.1
- ‘In line with other overseas media outlets (notably the New York Times, CNN, Washington Post), the denigration of President Trump by media outlets in NZ has been relentless. It is rare to find an article which is even neutral to him.’
- ‘The item by Paul Hobbs, through being inaccurate, unfairly denigrated President Trump.’
 In his original complaint, Mr Hutchinson also complained under the balance standard. However, his referral, and our determination, are limited to the accuracy and fairness standards.
The broadcaster’s response
 Television New Zealand Limited (TVNZ) did not uphold Mr Hutchinson’s complaint for the following reasons:
- Accuracy: There is no evidence the inclusion of Mr Trump’s comments about Mr Floyd, without his comments about equality in law enforcement, misled viewers. A reasonable interpretation of the comments about Mr Floyd, in the wider context of the conference, was Mr Trump thought Mr Floyd would be pleased about the positive economic news. This interpretation is supported by Mr Trump’s reference to the economy immediately after the comments about Mr Floyd. It is also supported by the fact the statement about equality in law enforcement did not identify specific steps taken to address inequality, or anything else that could be interpreted as a ‘great thing that’s happening for our country’. A number of mainstream news providers interpreted Mr Trump’s comments in a way similar to TVNZ.2
- Fairness: Mr Trump was treated fairly. It is well established that the threshold for finding a breach of this standard in relation to public figures and politicians (who are familiar with the media) is higher than for a layperson or someone unfamiliar with the media. This standard does not prevent criticism of public figures.
The relevant standard
 The accuracy standard states 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. Its objective is to protect the public from being significantly misinformed.3
 The fairness standard states broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The purpose of this standard is to protect the dignity and reputation of those featured or referred to in broadcasts.4
 The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. We may only uphold a complaint where the corresponding limitation on the right to freedom of expression is reasonable and justified.
 In this case, the broadcast was materially accurate, unlikely to mislead, and fair to Mr Trump, considering his position and profile as a politician and public figure. We have not found harm at a level that justifies intervention or restriction of the right to freedom of expression.
 The accuracy standard is concerned only with material inaccuracies. Technical or unimportant points that are unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.5 The standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.6
 The full transcript of Mr Trump’s press conference demonstrates the context for the relevant statement:
Equal justice under the law must mean that every American receives equal treatment in every encounter with law enforcement, regardless of race, color, gender or creed, they have to receive fair treatment from law enforcement. They have to receive it. We all saw what happened last week. We can’t let that happen. Hopefully George is looking down right now and saying, “This is a great thing that’s happening for our country.” This is a great day for him. It’s a great day for everybody. This is a great day for everybody. This is a great, great day in terms of equality. It’s really what our constitution requires and it’s what our country is all about.
 As TVNZ identified, a number of mainstream media reported these comments (in the broader context of the press conference) as referencing Mr Floyd’s potential view of employment figures. That is a strained interpretation of Mr Trump’s actual words. However, to the extent the broadcast may be considered inaccurate or misleading for suggesting an incorrect interpretation of the speech, it is not material:
- The focus of the particular segment, as outlined in the introduction, was ongoing issues of police brutality and volatile race relations in the United States.
- In this context, Mr Trump’s use of George Floyd’s name in connection with any apparent endorsement of his policies was presented as a subject of controversy (which it was).
- The reference to the statement being made in the context of Mr Trump ‘celebrating better than expected employment numbers’ was materially accurate, as the relevant press conference was called for this reason.
- There were no other comments linking Mr Trump’s statement to employment data. The comments from Mr Biden, for example, focused on the issue of ‘putting words in George Floyd’s mouth’.
 To the extent Mr Hutchinson’s complaint concerns Mr Hobb’s use of the adverb ‘bizarrely’, this was clearly distinguishable as opinion, to which the accuracy standard does not apply.
 Therefore, we do not uphold the complaint under the accuracy standard.
 A consideration of what is fair will depend on the nature of the programme, the context, and the nature of the individual. An individual’s status as a public figure who is familiar with the media is a relevant factor. It is also relevant to consider whether any critical comments were aimed at the participant in their business, professional or personal lives.
 As TVNZ identified, the threshold for finding a breach of the fairness standard in relation to public figures and politicians like Mr Trump (who are familiar with the media) is higher than for a layperson or someone unfamiliar with the media. The Authority has previously recognised it is an essential element of free speech that even the most trenchant criticism of public figures, in their professional capacity, be allowed. The question is whether such criticism overstepped the boundaries of fairness and strayed into personally abusive territory. In our view, it did not.
 In any case, the complaint under the fairness standard is that the item, through being inaccurate, unfairly denigrated Mr Trump. For the reasons set out above, the item was not materially inaccurate.
 Therefore, we do not uphold the complaint under the fairness standard.
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 David Hutchinson’s formal complaint – 9 June 2020
2 TVNZ’s response to the complaint – 6 July 2020
3 Mr Hutchinson’s referral to the Authority – 8 July 2020
4 TVNZ’s confirmation of no further comment – 31 August 2020
1 Jess Stein “Touting new job numbers, Trump says strong economy will quell protests and heal racial divide” The Washington Post (online ed, United States, 6 June 2020)
2 David Smith and Dominic Rushe “’Revolting’: Trump condemned for saying George Floyd is praising US economy” The Guardian (online ed, United States, 5 June 2020); “Biden: Trump 'despicable' for invoking George Floyd” BBC News (online ed, United States, 6 June 2020); Maeve Reston “With a shocking invocation of George Floyd, Trump shows his disconnect from nation's pain” CNN (online ed, United States, 6 June 2020); Alex Woodward “Trump implies that George Floyd is ‘looking down’ and seeing today’s jobs numbers as ‘a great day for him’” Independent (online ed, United States, 5 June 2020)
3 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
4 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
5 Guideline 9b
6 Guideline 9a