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 that a Midday Rural News segment on RNZ National, regarding a proposed solar panel development on a Waipara farm, breached the accuracy and balance standards. It found the points raised by the complainant as being inaccurate or misleading were either not misleading or were not materially misleading, as they were unlikely to affect the audience’s understanding of the report as a whole. In relation to the balance standard, the Authority found the brief broadcast, which was focused on the farmer’s perspective on the installation of the proposed development on his farm, did not discuss a controversial issue of public importance as required for the standard to apply.

Not Upheld: Accuracy, Balance

The broadcast

[1]  On 31 August 2023 at approximately 12.35pm, Midday Rural News on RNZ National included a report regarding a proposed solar farm in Waipara, North Canterbury. The report in its entirety was as follows:

Presenter: To other news, a North Canterbury farmer says installing 200 hectares of solar panels on his farm would be a win-win. Renewable energy asset developer Far North Solar Farm is looking to install the panels on [the farmer’s] sheep, beef and arable farm near Waipara. The proposed solar farm would generate enough clean electricity to power up to 30,000 homes. [The farmer] says it shouldn't disrupt his farming operation too much.

Farmer:   It's a long term lease, which you can still basically do your whole operation underneath maybe 80% of the stock you were running. And it just gives us security. And you know, the farm in North Canterbury is very dry and we might even end up growing more grass underneath and we can still do our operation. It seems a bit of a win-win diversity-wise as well. Powering 29,000 homes and taking 13,500 cars off the road equivalent. You know, it looks good on the story too, really, on what we do.

Presenter: A recent Massey University study found the areas between the rows of solar panels produced nearly 40% more grass than areas without periodic shading during the warmer months. [The farmer] says it will also help diversify the farm's income.

Farmer:   There's some good research out of Australia and Texas. I mean it's not going to be as hot as that, but the Massey stuff's obviously a bit wetter environments up there, whereas North Canterbury, it is just very, very dry, and with El Niño coming. Yeah, we're just hoping to shore up our business as well as we can really, and keep the farm in the family going forward because it's, you know, it just can be a bit tough at the moment and in the past as well. So we're just hoping it might even promote grass growth, just getting rid of those hot, hot days baking down on the grass all day. You just carry on doing what you're doing really, keep farming and obviously there'll be panels in the way, but we could still get a drill up in between them and they're very reasonable to try and make um, the farming - the people we're dealing with anyway Far North are very reasonable to keep the farming system going as well as it can as well.

Presenter: Far North Solar Farm is contacting nearby neighbours about the project and is holding an open day on site late next month. It says the solar farm could be up and running within two years.

The complaint

[2]  Elizabeth Kelsey of Save Waipara Valley (a group opposed to the relevant development) complained that the broadcast breached the balance and accuracy standards of the Code of Broadcasting Standards in New Zealand on the basis:

Accuracy

• The host’s statement “A recent Massey University study found the areas between the rows of solar panels produced nearly 40% more grass than areas without periodic shading during the warmer months” created the misleading impression ‘that solar plants enhance the productivity of farmland on which they are placed.’ ‘In fact, the Massey study has only so far produced preliminary results, which showed that while grass grew 38% more in some areas between panels, it grew 84% less under solar panels (of which there would be approx. 300,000 on the proposed Waipara site). Further, the study is not yet complete and the study’s co-lead has said data is needed for the whole year, if not longer, before firm conclusions can be drawn.’
• The broadcast ‘omitted the fact that the majority of the proposed development site is classed as Highly Productive Land, which is subject to a National Policy Statement to protect it from developments of this sort.’ This created a misleading impression ‘that there is no legal barrier to the development.’
• The farmer’s statements “you can still basically do your whole operation underneath maybe 80% of the stock you were running” and “we might even end up growing more grass underneath” created a misleading impression of the environmental impact and viability of the proposal. ‘In fact, in relation to the Waipara proposal, FNSF [Far North Solar Farm] are quoted in the North Canterbury News as saying that “technical studies to assess the viability of the agri-voltaic solar farm model” would be completed – suggesting that the viability of this model for the Waipara site is not yet known.’
• The farmer’s statement “It seems a bit of a win-win diversity-wise as well” went unchallenged, creating the misleading impression ‘that proposals such as this are entirely positive for farmers, with no downsides. In fact they are at best legally questionable, if not unlawful…, likely to involve substantial deterioration of the productive capacity of the land…; and are often met with fierce local opposition.’
• The statement “Yeah, we're just hoping to shore up our business as well as we can really, and keep the farm in the family going forward because it's, you know, it just can be a bit tough at the moment and in the past as well” created a misleading impression ‘that the farm has been in [the farmer’s] family for some time; and that he was therefore a relevant person to speak about farming and weather conditions on the farm. In fact [he] only purchased the farm in December 2022 and has only operated it since March 2023.’

Balance

• ‘The development of utility-scale renewable energy plants is of significant importance in NZ today and can be highly controversial, as public resistance to these projects shows. It is a subject on which balance is required.’
• The broadcast presented ‘a one-sided view of a controversial proposal [the developers’ and farmer’s positive view], with no indication that alternative viewpoints and legal issues even exist.’ There was ‘no mention of the fact that the Massey researchers caution the need to wait for reliable results; no reference to the fact that the development is proposed on Highly Productive Land, and the legal difficulties associated with that; and no mention of strong local opposition to the proposal, including concerns of “greenwashing”.’
• The misleading impressions created by the host’s comments about the Massey study and the farmer’s comments compounded the lack of balance.
• The lack of balance is ‘damaging to both landowners who may wish to pursue similar developments on their properties; and to the public in general, who have a right to accurate and balanced information about such proposals.’

[3]  The complainant also raised concerns that RNZ mischaracterised the nature of the complaint, did not engage with the substantive concerns raised, and advised the right of review was to the Media Council rather than the Broadcasting Standards Authority.

The broadcaster’s response

[4]  RNZ did not uphold Kelsey’s complaint for the following reasons:

Accuracy

• ‘The quotes from [the farmer] reflect a hopeful and enthusiastic enterprise view of the future of solar farming on his land. He is entitled to that view and his freedom to express it is protected by the New Zealand Bill of Rights Act.’
• ‘RNZ acknowledges that the referral in the item to the Massey research study was not entirely clear, but it was not a material fact bearing on the listeners’ understanding of the farmer's overall optimism for the solar panel project. The reference to Massey research was voiced by the RNZ presenter but it was paraphrasing from the interview with the farmer. The extent of pasture available after solar panels are installed and the extent of pasture growth available appear to be "yet to be confirmed" by this research, but the farmer concerned was nonetheless optimistic about the prospects for his property especially considering that the area is facing El Niño weather conditions in the future.’
• ‘RNZ was happy to clarify the status of the Massey research and its interim findings in our [associated] online article.’¹
• ‘While a minor inaccuracy had occurred, it was not a material fact bearing on the farmer's overall opinion as to the positivity he saw in the solar panel project, and hence the listeners’ understanding of the thrust of the item, so there was no need to provide a further on-air correction.’

Balance

• ‘… the format for this Midday Rural News bulletin for some time has been to air a number of short pieces (in this case 2'17") to give listeners a brief update on happenings in the rural sector. It is not designed to be an in-depth analysis or to provide a broad perspective or range of perspectives on any one topic.’
• The broadcast was ‘…not a "discussion" of what may or may not be a controversial issue [as required for the balance standard to apply], and even if it was, it was clearly introduced from one particular perspective.’

[5]  RNZ apologised to the complainant for referring her to the Media Council rather than to us. It advised ‘This was an administrative error which should not have occurred and again we apologise for the confusion that it caused. We understand that the complainant having contacted the Media Council was quickly advised to refer the matter to [the BSA].’

The standards

[6]  The purpose of the accuracy standard² is to protect the public from being significantly misinformed.³ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

[7]  The balance standard⁴ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.⁵ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.⁶

Our analysis

[8]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[9]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.⁷

Accuracy

[10]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was materially inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.

[11]  The 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.⁸

[12]  Further, the requirement for factual accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.⁹ However, broadcasters should still make reasonable efforts to ensure analysis, comment or opinion is not materially misleading with respect to facts referred to, or upon which the analysis, comment or opinion is based.

[13]  When assessing whether statements are analysis, comment or opinion, the following factors may be relevant:¹⁰

• the language used
• the type of programme
• the role or reputation of the person speaking
• the subject matter
• whether the statement is attributed to someone
• whether evidence or proof is provided.

Host’s statement re Massey University study

[14]  The complainant has argued the host’s statement “A recent Massey University study found the areas between the rows of solar panels produced nearly 40% more grass than areas without periodic shading during the warmer months” created the misleading impression that solar developments enhance the productivity of farmland on which they are installed, when the Massey study had only produced preliminary results.

[15]  It appears the finding referred to, that the areas between the rows of solar panels produced nearly 40% more grass, was a preliminary result based on the first seven months of a pilot study, and that firm conclusions were yet to be drawn as more time was needed to compile accurate data.¹¹ We accept the broadcast’s omission to clarify that the finding was preliminary may have created a misleading impression it was a firm conclusion. However, we consider any misleading impression amounted to a minor or ‘technical’ inaccuracy for the purpose of the standard. In the context of a brief report (of 2 minutes, 17 seconds) focused on the farmer’s perspective of the proposed solar panel development on his farm, we do not consider this would have significantly affected the audience’s understanding of the broadcast as a whole.

[16]  In relation to the complainant’s concerns that the broadcast omitted to include the pilot study’s other key preliminary result (indicating pasture growth was reduced by 84% directly under solar panels) we note the broadcast was clear it was the areas between the rows of solar panels that produced nearly 40% more grass. To the extent any listeners may have been misled as to the impact of solar panels on the productivity of land more generally as a result of omitting the study’s other key preliminary result, this was not material to the broadcast as a whole. As above, the broadcast was focused on the farmer’s perspective, and the potential outcomes for his farm. It was not an in-depth analysis of the general impact of solar panel developments on land.

[17]  We also note that after receiving the initial formal complaint, RNZ took steps to address the complainant’s concerns in relation to the broadcast’s description of the study’s findings by amending its accompanying online article.¹²

Omission of possible legal barriers

[18]  The complainant considered the broadcast’s omission of ‘the fact that the majority of the proposed development site is classed as Highly Productive Land, which is subject to a National Policy Statement to protect it from developments of this sort’ created a misleading impression ‘that there is no legal barrier to the development.’

[19]  Under the National Policy Statement for Highly Productive Land,¹³ Highly Productive Land (HPL) is fertile land which is earmarked for protection from ‘inappropriate use and development’, with some exceptions,¹⁴ to ensure such land can usually be used for growing food.

[20]  We do not consider listeners would have been misled by the omission of this detail. While HPL is protected, there are proposals underway to provide a clear consent pathway for undertaking new specified infrastructure on HPL.¹⁵ In our view the average listener would expect there would be a consent process to go through (involving potential legal barriers) before the development could be implemented. The presenter was clear that the project was ‘proposed,’ that Far North Solar Farm was ‘looking to install’ the solar panels on the farm, and that the development ‘could be’ up and running within two years. The broadcast did not state that the development was definitely going ahead.

[21]  In the context of this brief broadcast, which was focused on the farmer’s perspective of the proposed solar panel development on his farm, the legal nuances involved were not material to the audience’s understanding of the overall broadcast.

“You can still basically do your whole operation underneath maybe 80% of the stock you were running” / “we might even end up growing more grass underneath”

[22]  The complainant also raised concerns about several statements made by the farmer. The complainant has argued the statements above created a misleading impression of the environmental impact and viability of the proposal, when it appears that the viability of the development is not yet known.¹⁶

[23]  In relation to the first statement, on balance we consider this to be in the nature of comment/opinion. The reporter introduced the comments by saying ‘[The farmer] says it shouldn't disrupt his farming operation too much,’ and we consider the audience would have understood he was expressing his optimistic view on how the farm might be run in conjunction with the solar panel development. The figure of 80% was conveyed as an estimate (‘maybe 80%’) rather than a statement of fact.

[24]  The second statement, “we might even end up growing more grass underneath,” was clearly speculation in the nature of comment/opinion.

[25]  While the accuracy standard does not generally apply to analysis, comment or opinion, broadcasters must still make reasonable efforts to ensure such content is not materially misleading with respect to any facts relied on. In this case, given the estimated or speculative nature of the comments, and the farmer’s surrounding comments (for example that he is ‘hoping [the solar panels] … might even promote grass growth’), we consider listeners are unlikely to interpret the comments as a determinative indication of the environmental impact or viability of the proposal.

[26]  Even if the farmer’s comments and opinion were potentially misleading as to underlying facts (regarding the achievable productivity and grass growth enabled by such a proposal), it is not the role of the Authority, or the broadcaster, to determinatively assess the accuracy of such specialist matters. Our role is to assess whether the broadcaster made reasonable efforts to ensure the broadcast did not mislead. In a programme of this nature, focused on a potential development, we consider the broadcaster has met its obligations. It is reasonable to convey the views and hopes of the landowner as featured in this broadcast and we would require no further efforts to ensure accuracy.

‘It seems a bit of a win-win diversity-wise as well’

[27]  The complainant argued this statement by the farmer created the misleading impression that solar panel developments of this nature are ‘entirely positive for farmers, with no downsides.’

[28]  We consider listeners would have interpreted this comment as the farmer’s own opinion on one of the advantages he sees in having a solar panel development on his farm – that it allows him to diversify his assets. The language used, ie ‘it seems’ indicated the nature of the comments as opinion. We further note the statement appears to have been directed at diversification of income rather than implying the proposed development was entirely positive, as the complainant has argued.

[29]  Listeners were accordingly unlikely to be misled by this comment.

‘Yeah, we’re just hoping to shore up our business as well as we can really, and keep the farm in the family going forward because it’s, you know, it just can be a bit tough at the moment and in the past as well’

[30]  The complainant has argued these comments created a misleading impression ‘that the farm has been in [the farmer’s] family for some time; and that he was therefore a relevant person to speak about farming and weather conditions on the farm. In fact [he] only purchased the farm in December 2022 and has only operated it since March 2023.’

[31]  We disagree. The farmer did not state or imply that the farm had been in his family for a long time. 

Balance

[32]  The balance standard requires broadcasters to make reasonable efforts to present significant viewpoints either in the same broadcast or in other broadcasts within the period of current interest, unless the audience can reasonably be expected to be aware of significant viewpoints from other media coverage. A key consideration is what an audience expects from the programme, and whether they were likely to have been misinformed by the omission or treatment of a significant perspective.¹⁷

[33]  The complainant has argued this broadcast presented ‘a one-sided view of a controversial proposal [the developers’ and farmer’s positive view], with no indication that alternative viewpoints and legal issues even exist,’ including that there was local opposition to the proposal, and that the development was proposed to be on HPL.

[34]  Determination of a complaint under the standard involves two steps. The first step is to consider whether the standard applies. It will only apply where the subject matter is:

• an issue ‘of public importance’ (something that would have a significant potential impact on, or be of concern to, New Zealanders)
• ‘controversial’ (an issue of topical currency; which has generated or is likely to generate conflicting opinion; or about which there has been ongoing public debate – eg issues related to New Zealand political policy, public health and safety, or public expenditure)
• ‘discussed’ in a news, current affairs or factual programme (eg investigative or in-depth work – brief news reports, programmes clearly focused on a particular perspective, or personal or human interest stories, may not amount to a discussion).

[35]  The second step is to assess whether the broadcaster sufficiently presented significant viewpoints in the circumstances.

[36]  The complainant has argued the broadcast did discuss a controversial issue of public importance, on the basis ‘The development of utility-scale renewable energy plants is of significant importance in NZ today and can be highly controversial, as public resistance to these projects shows.’

[37]  While we agree the wider issue of whether solar panel developments should be installed on HPL constitutes an issue of public importance due to the importance of food security for New Zealanders, we do not consider this wider issue was discussed in this particular broadcast. The brief broadcast was focused on the farmer’s perspective on the installation of the proposed development on his farm. This was signposted by the presenter at the beginning of the broadcast: ‘A North Canterbury farmer says installing 200 hectares of solar panels on his farm would be a win-win.’ While the farmer’s perspective was interspersed with brief comments from the presenter (several of which introduced the farmer’s upcoming perspective) the majority of the broadcast featured the farmer speaking. We do not consider the benefits and viability of the proposed development, or the farmer’s views about the development, constitute a ‘controversial issue of public importance.’ On this basis, the balance standard does not apply.

[38]  In any event, under the standard, the requirement to present significant points of view is likely to be reduced, or in some cases negated, where it is clear from the programme’s introduction and the way in which the programme is presented, that:

• the programme is not claiming, or intended, to be a balanced examination of an issue
• the programme is approaching the issue from a particular perspective.¹⁸

[39]  Accordingly, even if the standard did apply, we consider the requirements of the standard would have been heavily reduced, if not negated, given the broadcast’s clear focus on one perspective (the farmer’s). Audiences would not have expected further perspectives on the pros and cons of solar panel developments on farms more generally in this context.

Procedural concerns

[40]  Lastly, we acknowledge the complainant’s concerns with RNZ’s complaints process, including that it did not engage with the substantive concerns raised. RNZ did not address several of the points of concern raised by the complainant in responding to the formal complaint. We accept that such an approach can result in an unsatisfactory outcome for a complainant and encourage RNZ to ensure it addresses all the substantive concerns raised in formal complaints.

[41]  We also appreciate the complainant’s frustration with RNZ advising the right of review was to the Media Council rather than to us. RNZ has apologised for its mistake and has advised it was an administrative error, and we are satisfied this matter has been resolved.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
16 January 2024    

Appendix

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

1  Elizabeth Kelsey’s formal complaint to RNZ – 31 August 2023

2  RNZ’s response to complaint – 5 September 2023

3  Kelsey’s referral to the Authority and supporting information – 18 September 2023

4  RNZ’s further comments – 23 November 2023

5  Kelsey’s final comments – 1 December 2023

¹ Monique Steele ‘Far North Solar Farm plans to install 200 hectares of solar panels on North Canterbury farm’ RNZ (online ed, 31 August 2023)
² Standard 6, Code of Broadcasting Standards in New Zealand
³ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
⁴ Standard 5, Code of Broadcasting Standards in New Zealand
⁵ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 14
⁶ Guideline 5.1
⁷ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁸ Guideline 6.2
⁹ Guideline 6.1
¹⁰ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
¹¹ Massey University “Early research could inform future design of farm-based solar panels” (12 June 2023)
¹² See: Monique Steele “Far North Solar Farm plans to install 200 hectares of solar panels on North Canterbury farm” RNZ (online ed, 31 August 2023): “Preliminary results from a Massey University study found combining solar panels with a pastoral sheep farming system could have both positive and negative impacts on pasture growth. ‘Pasture growth was reduced by 84 percent directly under the panels, but increased by 38 percent in the larger areas between panels. Pasture growth in both cases was compared to pasture growth in areas away from the panels.’”
¹⁴ National Policy Statement for Highly Productive Land 2022
¹⁴ Clause 3.9, National Policy Statement for Highly Productive Land 2022
¹⁵ Ministry for the Environment / Ministry for Primary Industries “Managing the use and development of highly productive land | Potential amendments to the NPS-HPL: Discussion Document” (September 2023)
¹⁶ Robyn Bristow “Solar farm and agriculture proposed on the same site” North Canterbury News (online ed, 1 September 2023) see: ‘Stakeholder and community consultation is underway, and technical studies to assess the viability of the agrivoltaic solar farm model would also be completed, Mr Telfer [CEO of Far North Solar Farm] says.’
¹⁷ Guideline 5.4
¹⁸ Guideline 5.4