Judge and Television New Zealand Ltd - 2017-078 (18 December 2017)
- Peter Radich (Chair)
- Te Raumawhitu Kupenga
- Paula Rose QSO
- Paul Judge
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
A segment on Seven Sharp featured an interview between Mike Hosking and Jacinda Ardern on the day Ms Ardern became leader of the Labour Party. Mr Hosking questioned Ms Ardern about the state of the Labour Party and her leadership credentials, and also commented on what he believed to be the ‘chaotic’ state of the Labour Party and its chances of winning the 2017 General Election. The Authority did not uphold a complaint that the segment was unbalanced and inaccurate, finding that the broadcaster provided sufficient balance by allowing Ms Ardern a reasonable amount of time to answer the interview questions. The Authority also noted the significant amount of coverage the leadership change received during the period of current interest. This segment amounted to robust political discourse that was to be expected during an election period, and the Authority concluded that upholding the complaint would unreasonably restrict the right to freedom of expression and political speech.
Not Upheld: Balance, Accuracy
 An item on Seven Sharp featured Mike Hosking interviewing Jacinda Ardern on the day that she became leader of the Labour Party, following Andrew Little’s resignation. The interview focused on the state of the Labour Party, Ms Ardern’s lack of experience in Government, Labour’s polling numbers and potential changes in Labour policy and strategy moving forward. During the interview Mr Hosking put the following questions to Ms Ardern:
- ‘How big a mess do you perceive this is that you need to clean up?’
- ‘When I say mess, I’m not talking in leadership, I’m talking about the party, how big a mess is the party in?’
- ‘Do you worry about your lack of experience? You’ve never been in Government, you’ve never been in Cabinet, never held a portfolio, never made major decisions that affect hundreds of thousands – if not millions – of people. You lack experience and then suddenly you want to leap to Prime Minister.’
 Following the item Mr Hosking also said:
- ‘…the party that is famous for late-breaking election year panic has added another chaotic chapter today.’
- ‘Jacinda Ardern has the advantage of being newish, female and young, but she was also supposed to be those things as Deputy [Leader] which was why she was given the job in the first place – made no difference and with 50-odd days to go, to change all that, she is in miracle territory.’
 The broadcast also featured on-screen banners during the segment which read, ‘Labour’s chaos continues’ and ‘Labour need a miracle’.
 Paul Judge complained that Mr Hosking’s questions and subsequent comments to his co-host Toni Street about Ms Ardern and the Labour Party were overly negative and therefore unbalanced, as they should have been balanced by ‘more positive lines of questioning’. Mr Judge also submitted the item was inaccurate.
 The issues raised in Mr Judge’s complaint are whether the broadcast breached the balance and accuracy standards of the Free-to-Air Television Code of Broadcasting Practice.
 The programme was broadcast on 1 August 2017 on TVNZ 1. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
The right to freedom of expression and political speech
 The starting point for our determination is to recognise the importance of the right to freedom of expression, and specifically the importance of political speech. This includes the right of broadcasters, political parties and candidates, as well as political commentators or analysts, to impart ideas and information about party policies and election matters, and the public’s right to receive that information. This is an important right in a democratic society and is particularly important in the lead up to a general election, when political parties and candidates are seeking to influence voters, and audiences are seeking information to enable them to make informed voting decisions.
 We may only interfere and uphold a complaint where to do so would impose a limitation on the right which is reasonably justified in a free and democratic society.1 In deciding whether any limitation on the right to freedom of expression is justified, we first consider the value and public interest in the broadcast, and then weigh that value against the level of actual or potential harm that might be caused by the broadcast. In this case, it is alleged that the audience has been presented with unbalanced and inaccurate information. Given the importance of political speech and of enabling political discourse in the lead up to a general election, we will generally only interfere to limit the exercise of that speech when we consider that the harm is great.
Did the broadcast discuss a controversial issue of public importance, which required the presentation of significant viewpoints?
 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. The standard exists to ensure that competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.
The parties’ submissions
 Mr Judge submitted:
- The interview contained ‘leading questions of a purely negative nature’ which should have been balanced by ‘more positive lines of questioning’.
- The interview focused on Ms Ardern’s perceived lack of experience and age.
- Positive comments from Ms Street about Ms Ardern were not enough to balance Mr Hosking’s negative comments and anti-Labour sentiment.
- Mr Hosking ‘presented a clearly unbalanced and biased view’ and used the segment to advocate his own biased political opinions.
 TVNZ submitted:
- It accepted the discussion of the change in Labour leadership amounted to a controversial issue of public importance for the purposes of the standard.
- It is acceptable for commentators to give their opinion about political events.
- It is well established that Seven Sharp presenters will from time to time give their opinion on issues. As a result there is an audience expectation that the presenters will approach topics from their own perspectives.
 A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.2
 The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.3 A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.4
 We agree that the discussion of the change of leadership within the Labour Party amounted to a controversial issue of public importance. This was an important issue for New Zealand voters in the lead up to the election, which had the potential to impact on their voting decisions.
 However, we are satisfied that the requirements of the balance standard were met, and that viewers were presented with sufficient alternate perspectives, both during the segment and during the period of current interest, to enable them to form their own views on the topics discussed.
 Looking first at the segment itself, we acknowledge that the questions put to Ms Ardern by Mr Hosking were critical and robust. The political and controversial nature of the change in leadership, and the timing of the change, created a reasonable expectation that Ms Ardern would face difficult and critical questioning regarding her leadership credentials and the state of the Labour Party. It was also in the public interest for Ms Ardern to face such questioning, due to the public’s right as voters to receive valuable political information that could assist them in making informed decisions in the general election.
 Ms Ardern was given a reasonable amount of time to answer the questions from Mr Hosking, and she articulately presented her views and her position regarding the leadership change and her personal political credentials. For example, she made the following comments:
- ‘My timing’s been off, it’s fair to say. I came in at the point that Labour went into opposition, I’ve been in Parliament for nine years and in and around politics for 20 years. But I’d like to also put some emphasis on the positive around that. I bring a different approach; I bring a generational perspective that’s about knowing exactly what I stand for, what my values are, but being really open to doing things differently. I think there’s benefit to that as well.’
- ‘…The public don’t want to hear about the machinations about what’s happened over the last couple of days [with leadership], they want to hear about ideas for the future. We’ve got seven-and-a-half weeks, we can’t waste time talking about the past and that’s why you’ll hear me focused on Labour’s position and the ideas we’re presenting for the public.’
- ‘I’ll spend the next 72 hours having a look over the campaign plans, some of the ideas that were in place, putting my own approach on it but you’ll see my stamp on the campaign within the next few weeks. I know I don’t have a lot of time to do that but I think people will think that’s probably pretty understandable if I at least take 72 hours to take stock.’
 As noted by the complainant, Seven Sharp presenter Ms Street made positive comments following the item in support of Ms Ardern, including:
- ‘Jacinda has a mammoth task ahead of her, but I don’t think for one second that this is a personal poison chalice for her, she has everything to gain… any improvements she does make will be directly attributed to her.’ (Ms Street)
- ‘…If Jacinda Ardern can hold her own through this period she’ll be a force to be reckoned with beyond this election. She has charisma and is highly likeable – something the party has been seriously lacking.’ (Ms Street)
- ‘There are people in this country that really want to back Labour they just haven’t had that aspiring person to get in behind – Jacinda Ardern could be it.’ (Ms Street)
- ‘I suspect [Ms Ardern] will have a lot of emotional value and there will be non-voters who will come out because of her.’ (Ms Street)
 We also note that, following a further pre-recorded item within this broadcast covering the leadership announcement, Mr Hosking remarked that, ‘[Ms Ardern] was very competent today I think. Most people say she’s fairly competent. And she started off very nervous but by the time the press conference rolled on, there were a couple of jokes, a couple of one-liners, got a bit of personality…’ Ms Street added, ‘She has conviction, that’s what I like about her. She’s strong in her opinions.’ Accordingly, we are satisfied that numerous positive comments were made during this broadcast about Ms Ardern.
 Additionally, the change in leadership in the Labour Party received significant media coverage during the period of current interest. There was a wide range of analysis and opinion presented across New Zealand media, due to the widespread public interest in Ms Ardern’s appointment as leader and what that meant for the upcoming election.5 Audiences could reasonably be expected to be aware of significant views presented across media regarding the change in Labour leadership around the time of this broadcast.
 For these reasons we do not uphold the balance complaint.
Was the broadcast inaccurate or misleading?
 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.6
The parties’ submissions
 Mr Judge submitted
- The story was inaccurate as it repeatedly claimed that the Labour Party was ‘in chaos’.
- In order to be accurate the broadcast needed an examination of the ‘barrage of criticism and biased reporting such as that by Hosking that have contributed to this situation [the change in Labour leadership]’.
 TVNZ submitted:
- Mr Judge did not make any allegation that a material point of fact was inaccurate in the programme.
- Mr Hosking’s comments were clearly distinguishable as analysis, comment or opinion.
- ‘Mr Hosking put the question about the state of the Labour Party to Jacinda Ardern and she was given space in the programme to give her view on this.’
 The accuracy standard applies only to material points of fact in news, current affairs and factual programming. Guideline 9a to the accuracy standard states that it does not apply to statements that are clearly distinguishable as analysis, comment or opinion.
 A fact is verifiable: it is something that can be proved right or wrong, while an opinion is someone’s view: it is contestable, and others may hold a different view.7 In determining whether a statement is fact or opinion, the following factors are relevant:8
- the language used in the statement
- the language used in the rest of the item (there could be a statement of fact within an opinion piece or surrounded by opinions)
- the type of programme and the role or reputation of the person speaking
- the subject matter
- whether evidence or proof is provided
- whether the statement is attributed to someone.
 Having regard to these factors, we are satisfied that the references in the segment to the Labour Party being ‘in chaos’, made by Mr Hosking and included in an on-screen graphic, were distinguishable as political analysis and opinion and did not amount to statements of fact. Descriptions of the party as being ‘in chaos’ and ‘chaotic’ by their nature require a subjective assessment, and an analysis of the party’s situation – they are not facts that are capable of easily being proven to be accurate or not.
 Additionally, we have previously recognised there is an audience expectation that Mr Hosking as a presenter has a tendency to offer his opinion on a wide range of topics.9 This includes an expectation that he will give his opinion on political matters, particularly during the election period when political discourse carries high value and public interest.
 Taking into account the vital importance of free political expression in the lead up to a general election, we do not agree that the right to freedom of expression ought to be limited in this case.
 Accordingly we do not uphold this aspect of the complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
18 December 2017
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Paul Judge’s formal complaint – 2 August 2017
2 TVNZ’s response to the complaint – 30 August 2017
3 Mr Judge’s referral to the Authority – 25 September 2017
4 TVNZ’s confirmation of no further comment – 17 November 2017
1 See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6.
2 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
3 As above
4 As above
5 For example, see: https://www.stuff.co.nz/national/politics/95334575/can-the-late-change-to-jacinda-ardern-as-leader-work-for-labour (Stuff, 1 August 2017), https://www.radionz.co.nz/news/political/336241/as-it-happened-jacinda-ardern-takes-charge-as-labour-leader, (Radio NZ, 1 August 2017), http://thewireless.co.nz/articles/jacinda-ardern-was-always-a-star-now-she-s-the-leader (The Wireless, 2 August 2017)
6 Bush and Television New Zealand Ltd, Decision No. 2010-036
7 Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 62
8 As above
9 For example, Diprose and Television New Zealand Ltd, Decision No. 2017-067 at