Keane and Television New Zealand Ltd - 2010-082
- Peter Radich (Chair)
- Leigh Pearson
- Mary Anne Shanahan
- Tapu Misa
- Les Keane
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
One News – 4 June report on New Zealander and Viva Palestina aid worker Nicola Enchmarch’s reaction to being caught up in an Israeli commando raid on a flotilla off Gaza – 5 June report on New Zealand protest marchers demonstrating against the raid – both items allegedly in breach of law and order, controversial issues, accuracy, fairness and discrimination and denigration standards
Standard 2 (law and order) – items did not encourage viewers to break the law or otherwise promote, glamorise or condone criminal activity – not upheld
Standard 4 (controversial issues – viewpoints) – items provided a New Zealand perspective on the raid – reports did not amount to a discussion of a controversial issue of public importance – not upheld
Standard 5 (accuracy) – complainant did not identify any material points of fact he considered to be inaccurate – not upheld
Standard 6 (fairness) – complainant did not identify any individuals or organisations taking part or referred to that he considered were treated fairly – not upheld
Standard 7 (discrimination and denigration) – broadcaster did not encourage discrimination against or denigration of Israelis – not upheld
This headnote does not form part of the decision.
 An item on One News, broadcast on TV One at 6pm on Friday 4 June 2010, reported on New Zealander and Viva Palestina aid worker Nicola Enchmarch’s reaction to being caught up in an Israeli commando raid on a flotilla off Gaza which was trying to deliver aid.
 The presenter introduced the item by saying:
The New Zealand activist caught up in the Israeli attack on a flotilla off Gaza has described scenes of chaos and death. Nicola Enchmarch was with the aid organisation Viva Palestina and says Israeli commandos were, quote, “very very aggressive and didn’t care who they were firing at”.
 A brief excerpt from a phone interview with Ms Enchmarch was played in which she described what she had seen and done during the raid. During this, footage was shown of commandos boarding a ship and of activists offering resistance. At the bottom of one piece of footage a banner read, “Rioters coordinate attack before soldiers attempt to board the ship again”, and the hand of a man holding a broken glass bottle was circled with the words “broken glass bottle” above it. Footage of injured activists was also shown.
 The presenter stated Ms Enchmarch had said that, “The activists only started attacking Israeli troops in self-defence after the soldiers shot at the aid flotilla.” The item included footage of protesters outside the British Embassy in Tehran demonstrating against the raid.
 An item on One News, broadcast on TV One at 6pm on Saturday 5 June, reported on New Zealand protest marchers demonstrating against Israel’s military raid on the flotilla. The presenter introduced the item by saying:
Hundreds across the country marched today to demonstrate against Israel’s attack on a Gaza aid flotilla earlier this week. In Auckland, rowdy protesters hurled more than abuse as they voiced their anger at the deadly raid.
 The item began by showing around 350 protesters demonstrating in Auckland. They were shown throwing shoes at the United States consulate, burning American and Israeli flags, and marching through Auckland’s CBD. Several of the protesters were interviewed and voiced their anger with Israel’s actions.
 The reporter said:
The Israelis have ignored international protests against its actions in the past. It may take more than shoe-throwing and flag-burning in the South Pacific to change its mind.
 One News then broadcast footage of a similar demonstration in Wellington where approximately 100 protesters were met by a group of pro-Israeli demonstrators prompting angry taunts. Demonstrations in Christchurch and Dunedin were also shown, which was followed by an update on an Irish ship in international waters en route to Gaza “determined to deliver its load”.
 Les Keane made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that both news items had breached broadcasting standards relating to law and order, controversial issues, accuracy, fairness, and discrimination and denigration.
 The complainant argued that, “Even though other evidential news of the Gaza blockade travesty was available, both news programmes chose not to show it thereby presenting an unbalanced and biased report”. He contended that the items had given New Zealanders an inaccurate view of what had occurred, which had “incited violence to erupt” in the streets and had given “those responsible for the violence a wrongly held impression and reason for doing so”.
 Mr Keane considered that the Israeli viewpoint and relevant evidence had not been shown. He said this included “Turkish activists” who had been filmed “doing a war chant and brandishing weapons” before the Israeli troops boarded the flotilla and who had attacked the troops as they tried to board.
 The complainant argued that the items showed “double standards” and “racism” towards Israel.
 Standards 2, 4, 5, 6 and 7 and guidelines 4a, 5a and 7a of the Free-to-Air Television Code of Broadcasting Practice are relevant to determining this complaint. These provide:
Standard 2 Law and Order
Broadcasters should observe standards consistent with the maintenance of law and order.
Standard 4 Controversial Issues – Viewpoints
When discussing controversial issues of public importance in news, current affairs or 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.
No set formula can be advanced for the allocation of time to interested parties on controversial issues of public importance. Significant viewpoints should be presented fairly in the context of the programme. This can only be done by judging each case on its merits.
Standard 5 Accuracy
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/or
• does not mislead.
The accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.
Standard 6 Fairness
Broadcasters should deal fairly with any person or organisation taking part or referred to.
Standard 7 Discrimination and Denigration
Broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.
This standard is not intended to prevent the broadcast of material that is:
• factual, or
• the expression of genuinely held opinion in news, current affairs or other factual programmes, or
• legitimate humour, drama or satire.
Broadcaster's Response to the Complainant
 Referring to the Authority’s practice note on Standard 2 (law and order), TVNZ argued that for a breach to occur, a broadcast not only had to condemn a particular law, but also actively promote disrespect for it.
 The broadcaster stated that the “depiction or discussion of criminal behaviour is usually acceptable”, but the exceptions tended to be if a broadcast explicitly instructed how to imitate an unusual criminal technique or suicide, or if it glamorised criminal activity. TVNZ argued that the reports had not glamorised crime or condoned the actions of criminals in the ways alleged by the complainant, and that the items had simply reported on events that had occurred. It declined to uphold the complaint that Standard 2 had been breached.
 Turning to Standard 4 (controversial issues – viewpoints), TVNZ contended that, while the Israeli blockade at Gaza was a matter of public interest and was widely reported in sections of the New Zealand media, it did not consider that the matter was a controversial issue of public importance as required by the standard.
 However, the broadcaster considered that, if the matter did reach the required threshold, appropriate viewpoints had been sought and presented. It said that the focus of the 4 June item was to present an eye-witness account of events, and that it had broadcast the perspective of Ms Enchmarch, who was on board a flotilla vessel called the Mavi Marmara. It stated that the 5 June item reported on protest marches occurring in New Zealand, and argued that it was appropriate to include the views of those protesting.
 TVNZ said that on 1 June, when the story first broke, One News reported extensively on the fate of the Mavi Marmara crew. It noted that the Israeli perspective was given in that item by the Israeli Prime Minister, who explained the Israeli Navy’s actions.
 Further, the broadcaster stated that, on 13 June, its Sunday programme broadcast an extensive item with analysis on the blockade at Gaza, including a lengthy interview with the chief Israeli spokesperson on the incident, who presented the view that Israel only fired in self defence.
 TVNZ contended that, during the period of current interest, significant perspectives were sought and presented on the issue of the blockade at Gaza. It therefore declined to uphold the Standard 4 complaint.
 Looking at Standard 5 (accuracy), the broadcaster argued that the complainant had not identified any points of fact in either item that were inaccurate. It stated that the events surrounding the Mavi Marmara activists’ deaths were the source of much international debate and confusion. It contended that “One News did not attempt, nor is it able in its current format, to provide a full detailed historical analysis of the blockade at Gaza”. It considered that the news items contained sufficient information for the viewing public on events that took place each day, and it declined to uphold the accuracy complaint.
 With respect to fairness, TVNZ stated that it could not identify any unfairness in its coverage of the attack on the flotilla at Gaza and reiterated its contention that the Israeli perspective had been presented within the period of current interest. It declined to uphold the complaint that Standard 6 had been breached.
 Turning to Standard 7 (discrimination and denigration), the broadcaster stated that a high threshold needed to be crossed before a breach of the standard would be found. It said that “comments will not always breach the prohibition against denigration simply because they are critical of a particular group, because they offend people, or because they are rude”.
 TVNZ noted that the Authority had consistently defined denigration as blackening the reputation of a class of people, and discrimination as encouraging the different treatment of members of a particular group, to their detriment. It argued that no offence was intended by the One News items and it did not consider that “any of the reporting reached the threshold to be considered discriminatory to or the cause of any denigration of Israel”. It declined to uphold Mr Keane’s complaint.
Referral to the Authority
 Dissatisfied with the broadcaster’s response, Mr Keane referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.
 The members of the Authority have viewed recordings of the broadcasts complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
Standard 2 (law and order)
 The Authority has previously stated (see, for example, Taylor and TVWorks1) that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity.
 We consider that neither news item “incited violence to erupt” as contended by the complainant. Rather, the raid itself had resulted in legitimate democratic protest which the broadcaster was entitled to cover and report on.
 We also find that neither item encouraged viewers to break the law or promoted, glamorised or condoned criminal activity in any way. In our view, the items would have had the opposite effect by outlining the fact that people had died and been injured during the raid.
 Accordingly, we decline to uphold the law and order complaint.
Standard 4 (controversial issues – viewpoints)
 Standard 4 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.
 It is our view that both reports provided viewers with a New Zealand perspective on the raid. Further, the fact that a New Zealander had been involved brought the event closer to home for viewers. TVNZ’s decision to cover the event from a New Zealand perspective was understandable and a logical one considering the involvement of Ms Enchmarch.
 We consider that viewers would have understood that the news items were conveying a New Zealand perspective on the raid and that they did not constitute a discussion of the topic for the purposes of Standard 4.
 In any event, we note that significant perspectives were provided by the broadcaster during the period of current interest, including a Sunday item that contained interviews with Ms Enchmarch and the chief Israeli spokesperson dealing with the raid.
 Accordingly, we decline to uphold the complaint that the items breached Standard 4.
Standard 5 (accuracy)
 Standard 5 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.
 Mr Keane contended that the items had given New Zealanders an inaccurate view of what had occurred. However, the complainant has not identified any material points of fact from either item which he considered to be inaccurate.
 Accordingly, we have no basis on which to uphold the complaint that the items breached Standard 5.
Standard 6 (fairness)
 The fairness standard requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme.
 We note that, while Mr Keane nominated Standard 6 in his complaint, he did not identify which individuals or organisations he believed had been treated unfairly by the broadcaster.
 In our view, there is no evidence that would lead us to conclude that the broadcaster treated any of the individuals or organisations taking part or referred to in the items unfairly. Accordingly, we decline to uphold the Standard 6 complaint.
Standard 7 (discrimination and denigration)
 Standard 7 protects against broadcasts which encourage denigration of, or discrimination against, a section of the community.
 Mr Keane argued that the items showed “double standards” and “racism” against Israel.
 The term “denigration” has consistently been defined by the Authority as blackening the reputation of a class of people (see, for example, Mental Health Commission and CanWest RadioWorks2). The term “discrimination” has been defined by the Authority as encouraging the different treatment of members of a particular group, to their detriment (see Teoh and TVNZ3).
 It is also well-established that in light of the requirements of the Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration in contravention of the standard (see, for example, McCartain and Angus and The Radio Network4).
 In our view, the items did not contain any statements relating to Israelis in general, but were confined to reporting on the actions of the Israeli military. While the items contained viewpoints that were critical of those actions, comments will not necessarily breach the prohibition against denigration simply because they are critical of a particular group. In this case, we find that the criticism levelled at the actions of the Israeli military were a legitimate part of a story in which events were strenuously disputed by both sides of the conflict. We note that guideline 7a specifically states that this standard is not intended to prevent the expression of genuinely held opinion in the context of a news or current affairs programme.
 Accordingly, we decline to uphold Mr Keane’s complaint that the items breached Standard 7.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
14 September 2010
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Les Keane’s formal complaint – 5 June 2010
2. TVNZ’s response to the formal complaint – 7 July 2010
3. Mr Keane’s referral to the Authority – 8 July 2010
4. TVNZ’s response to the Authority – 16 July 2010
1Decision No. 2010-008
2Decision No. 2006-030
3Decision No. 2008-091
4Decision No. 2002-152