Julian and Discovery NZ Ltd - 2020-152 (20 April 2021)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- Stuart Julian
BroadcasterDiscovery NZ Ltd
[This summary does not form part of the decision.]
The Authority has not upheld a complaint that an item summarising latest election poll results on Newshub breached the accuracy standard. The standard applies only to statements of fact, and the statements in question were clearly distinguishable as news analysis.
Not Upheld: Accuracy
 On 16 October 2020, Newshub Live at 6pm reported on the results of the latest Newshub-Reid research poll. Samantha Hayes’ introduction to the report follows:
Hayes: The Newshub-Reid research poll gives Labour the edge, but it’s tight and all eyes will now be turned to the late run from some of the minor parties, including New Zealand First. Our political editor Tova O’Brien has all the numbers.
 The report included commentary by Ms O’Brien as follows:
O’Brien: We polled until the last possible moment so we can get the most up to date numbers before polling day and the verdict is in. On this result: Jacinda Ardern gets three more years running the country, Judith Collins loses out on the PM job - her fight to keep the job as National leader would begin. But it's not cut and dry. Labour holds the slimmest sliver of a majority: 45.8%, down 4.3 percentage points. Ardern governs alone, but only just. And the 30’s used to be… considered the kill zone for National but after everything it's been through, 31.1%, which bizarrely will be welcome because at least it's up 1.5. The Greens are the ones to watch holding steady on 6.5% down 0.2. They're so close to being queen maker. ACT is still the start of the minor leagues 7.4%, up 1.1. David Seymour, do a little dance. But this could be the biggest story on the night: New Zealand First 3.5%, up 1.6. The underdog scrapping to get to that 5% threshold to make it back. The minor parties, barring TOP, all losing momentum. That's all wasted vote. And that's why Labour gets a majority of seats. And to see how this translates to seats in the House, we're going to give you a very special sneak peek at our election night graphics. And to do that, Ryan Bridge is with us from inside the Debating Chamber of Parliament…
 Stuart Julian complained the following statement by Ms O’Brien breached the accuracy standard1:
The minor parties, barring TOP, all losing momentum. That's all wasted vote and that’s why Labour gets a majority of seats.
 Mr Julian argued:
- ‘In MMP there is no wasted vote. For a major independent news media outlet to publish an article stating that voting for a minor party is a wasted vote is a direct interference in the democratic process and shows an erosion of Newhub’s impartiality in this election.’
- ‘From the outside it is clear that the main media organisations in NZ are favouring establishment political parties [Labour, Green Party, NZ First, National, ACT] in their reporting and discounting any chance of an emerging minor party as a reasonable choice for NZ voters. Thus we have a perpetual cycle of minor parties struggling to make headway.’
- There is not even an opinion tag...’
 In his referral to the Authority, Mr Julian also noted that the broadcast ‘fell short of balanced, fair’ reporting standards. However, given the nature of his complaint, it is more properly addressed under the accuracy standard. In any event, under the Broadcasting Act 1989 s 8(1B), we only have jurisdiction to consider such complaints if previously made to the broadcaster. This decision addresses the accuracy standard only because:
- Mr Julian’s original complaint to the broadcaster did not expressly or impliedly raise the balance and fairness standards.
- The broadcaster, on indicating it would respond under the accuracy standard, gave Mr Julian an opportunity to confirm the standards he intended to raise. However, he did not respond.
The broadcaster’s response
 MediaWorks did not uphold Mr Julian’s complaint for the following reasons:
- ‘The Broadcasting Standards Authority has previously recognised that viewers reasonably expect to receive commentary and analysis from political reporters and political correspondents such as this.’
 The accuracy standard states 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 standard does not apply to expressions of comment, analysis and opinion.2
 We have watched the broadcast and read the correspondence listed in the Appendix.
 The Authority’s Election Complaints Fast-Track Process contemplates fast tracking of complaints about ‘programmes that relate to election or referenda matters that may influence a vote’.3 As this complaint was only referred to us after the 2020 General Election, it was not eligible for fast-tracking and has been dealt with under our standard procedures.
 We have considered the important right to freedom of expression, which is our starting point. This includes the broadcaster’s right to impart, and the audience’s right to receive different ideas and information. We may only intervene and uphold a complaint where the broadcast has caused actual or potential harm at a level that justifies limiting the right to freedom of expression.
 For the reasons set out below we do not find harm at a level that justifies regulatory intervention.
 The complainant was concerned there was no ‘opinion tag’ on the report. We interpret this as a reference to there being no explicit warning Ms O’Brien was about to convey her opinion. However, in this context, no such warning was necessary as the audience was likely to understand Ms O’Brien’s statement as analysis, comment or opinion. News analysis often contains value judgments, and conclusions drawn from facts. It interprets news, offers criticism, provides possible reasons and predicts consequences.4 The statement in question (paragraph ) is clearly distinguishable as news analysis. Ms O’Brien’s statement ‘that’s all wasted vote’ is a value judgment, or a conclusion drawn from her analysis of the facts (the results of the research poll).
 In addition, we have previously accepted that viewers are familiar with the use of polls when reporting on voter’s perceptions in the light of upcoming elections.5
 For these reasons, 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
Judge Bill Hastings
20 April 2021
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Stuart Julian complaint to MediaWorks – 17 October 2020
2 MediaWorks’ response to Mr Julian – 2 November 2020
3 Mr Julian’s referral to the Authority – 2 November 2020
4 MediaWorks’ confirmation of no further comment – 9 November 2020
5 Mr Julian’s confirmation of standards raised – 30 March 2021
6 MediaWorks’ confirmation of standards raised – 30 March 2021
1 Standard 9, Free-to-Air Television Code of Broadcasting Practice
2 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
3 Broadcasting Standards Authority “Fast track complaints process for election related content” <www.bsa.govt.nz>
4 Guidance: Accuracy: Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 64
5 See Helm and Television New Zealand Ltd, Decision No. 1999-173 and Thompson and MediaWorks TV Ltd, Decision No. 2014-049