Kirby and Radio New Zealand Ltd - 2013-042
- Peter Radich (Chair)
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Leigh Pearson
- Melissa Kirby
ProgrammeNine to Noon
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand National
Summary [This summary does not form part of the decision.]
A Nine to Noon host interviewed Carmel Fisher, the founder and managing director of Fisher Funds Management Ltd, about her background and attitudes to business. At the end of the interview, she asked her about recent court action over a family will. A majority of the Authority upheld the complaint that a comment made by Ms Fisher about her role in the proceedings was inaccurate. The Authority unanimously declined to uphold the complaint that the programme was unfair. The Authority did not make any order.
Upheld by Majority: Accuracy
Not Upheld: Fairness
 On 14 March 2013 on Radio New Zealand National Nine to Noon, the host interviewed Carmel Fisher. Ms Fisher is the founder and managing director of Fisher Funds Management Ltd. She was being interviewed about a recent acquisition her company had made and her background and attitudes to business. The interview took 33 minutes. In the last 3 minutes of this interview the host questioned Ms Fisher about court action over a disputed family will. The court action had attracted recent publicity. No doubt this was because of the public profile of Ms Fisher as an investment advisor and as a main player in the litigation.
 Melissa Kirby, one of the other parties in the litigation, made a formal complaint to Radio New Zealand Ltd (RNZ). This alleged that Ms Fisher had made inaccurate, misleading and unfair statements about the court action, which went unchallenged by the radio host.
 The issue is whether the item breached the accuracy and fairness standards, as set out in the Radio Code of Broadcasting Practice.
 The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
 This was family litigation under the Family Protection Act 1955. The litigation concerned a farming family of Levin. The mother of the family left substantial assets to her nieces (including Ms Fisher) and a nephew. She appointed Ms Fisher to be one of her trustees. The children of the deceased said she made inadequate provision for them.
 In the High Court, the circumstances of the family were closely examined and the Judge held that the deceased had breached her moral obligations to her own children in leaving most of her estate to her nieces and nephew. In this proceeding Ms Fisher was present in two different roles. In one of these she was a trustee and she was represented by a lawyer acting for the trustees. In accordance with normal practice, this lawyer took no active part in the proceeding and his attendance was excused. Ms Fisher was also present in her role as a beneficiary. In this position she was accompanied by her sister and brother as beneficiaries. Ms Fisher and her siblings, as beneficiaries, were represented by separate lawyers. They acted to resist the claims of the children of the deceased.
 After the High Court decision Ms Fisher and her siblings appealed to the Court of Appeal in their role as beneficiaries. The Court of Appeal dismissed the appeal and increased an allowance made to one of the natural children of the deceased who was in poor circumstances. Costs awards were made against Ms Fisher and her siblings and negative comment was made by the Courts about the way in which they had approached the litigation. Ordinarily, that would have been the end of the matter. There was however the broadcast with which we are concerned.
 The following is a transcript of the relevant part of the interview between Kathryn Ryan and Ms Fisher.
Ryan: The family was in the newspaper – and you’ll know I’ll bring this up – recently, for
reasons you will be less comfortable with. It must be mortifying to see a huge
Court battle and your name as a very prominent person in it over a Will and the
situation. Just for the listeners, you as nieces and nephews were left substantial
sum of money from an aunt whose own children were excluded from that. They
challenged successfully and the Courts increased their share and then you
appealed. What was your motivation in that? The Court said: “look a mother has a
moral responsibility towards children”. What was your decision to contest that
Fisher: I didn’t contest. Just to give background, I was a trustee of my elderly aunt’s
estate and had been for a number of years and over those years she had made her
wishes well known, not only to me but also to her own children. And so after she
died her children challenged the way the Will had been written or the way her
assets were going to be distributed and so as a trustee I had a duty to defend my
aunt because she wasn’t there to speak for herself. And so yes it went to Court
and it was odd and I suppose I learnt a lot about the legal system in that it ended
up almost like me having to defend the fact that my aunt had decided to distribute
her assets the way she wanted to, and in my mind if you write a Will it’s up to you
to decide how you distribute your assets and certainly as a trustee it’s your role to
stand up and make sure that happens. So yes look it was unpleasant and yes it
went to appeal and the children were given a greater stake.
There is more to the background and that’s the horrible thing about a Will, you
know, a Judge looking at a Will and deciding how assets should be distributed
knows nothing about the person who wrote the Will, knows nothing about their
family background. As it happened, her husband had sort of taken care of the
children in his Will but the Judge decided not to focus too much on this, but rather
to focus on the mother and talk about her duties. Look, in my mind it was
essentially a case about who has the right to determine how somebody’s assets
can be distributed. Should a Will which expresses a person’s wishes quite clearly
be completely ignored and in this instance the judge decided to do that so it still
surprises me and I have learnt lessons as to how, what I’m going to do with my
Will certainly. [our emphasis]
Ryan: Someone else might say whatever the intent of the Will was there, a compromise
where the children of someone, for whatever reason or motivation a parent had
made a decision, where a deal was done if you like where you might
accommodate what many people would see as a righting a wrong. Did you ever
have that in your mind?
Fisher: Look, we went through mediation and there were compromises sought at every
Ryan: Thank you for time today, Carmel. Carmel Fisher.
 Melissa Kirby complained that Ms Fisher’s comments as they related to the litigation breached broadcasting standards. She argues that the statements were inaccurate and unfair.
 There are three particular parts of what was said by Ms Fisher to which the complainant takes objection and these are the following:
- ‘ … as a trustee I had a duty to defend my aunt because she wasn’t there to speak for herself’
- In relation to Judges in proceedings of this kind, Ms Fisher said that the Judge ‘… knows nothing about the person who wrote the Will, knows nothing about their family background’
- In relation to a suggestion that things within the family ought to have been sorted out without the difficult litigation, Ms Fisher said ‘… there were compromises sought at every step’
 Mrs Kirby argues that the first two statements were in breach of Standard 5 in relation to accuracy, and the last statement was a breach of Standard 6 in relation to fairness.
 We are able to deal with the complaint in relation to fairness shortly. Standard 6 says:
Broadcasters should deal fairly with any person or organisation taking part or referred to.
 Mrs Kirby argues that the statement by Ms Fisher that there were compromises sought at every step contained an innuendo that she and her siblings had been unreasonable in not settling. First, Ms Kirby was not named or otherwise identified in the broadcast, and we are not convinced that she was sufficiently referred to for the purposes of the fairness standard. Second, with respect to the complainant, we do not think that there is any substance to this complaint because any innuendo is blurred and indiscernible, and to the ordinary listener, no unfavourable link could be made to the complainant.
 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/or
- does not mislead.
 For the accuracy standard to apply, the broadcast must be news, current affairs or factual programming. As with many programmes the Nine to Noon broadcast is a mixture of different types of content. Some of the content is current affairs and some is not. We think that we need to look at each particular programme and determine how that part of the programme which is the subject of the complaint ought to be categorised. In this case the interview with Ms Fisher was a current affairs interview. There were two elements of current affairs, the first being the then recent Tower Fund takeover and the second being the then recent family litigation. The broadcaster has not, when responding to the complaint, suggested that the accuracy standard did not apply to this part of the programme, and in our view it did.
 The accuracy standard requires broadcasters to ensure accuracy in relation to ‘all material points of fact’. Guideline 5a states that the standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.
 The issue of the extent to which, if at all, a broadcaster is required to satisfy itself as to the accuracy of statements made by persons being interviewed and which faces us here is the same issue that arose in Bolton and Radio New Zealand.1 Undoubtedly a broadcaster has some responsibilities under the standard which itself arises out of Section 21(1) of the Broadcasting Act 1989. The responsibilities have to be considered in context and these responsibilities are particularly difficult when they relate to something which somebody has said while being interviewed.
 Among the members of this Authority we have reached a unanimous conclusion that the following statement was opinion, and so exempt from the requirements of the accuracy standard:
…a horrible thing about a Will, you know, a Judge looking at a Will and deciding how assets should be distributed knows nothing about the person who wrote the Will, knows nothing about their family background.
 A reading of the Judgments of the Courts shows that the Courts were appraised of the circumstances of the deceased and of the family background. This statement has an element of overstatement or almost hyperbole within it. We think it could well have been seen as a statement of unhappy reaction or unhappy opinion from someone who had been involved in litigation which had not gone their way. We are agreed that we should categorise this statement as one of opinion.
 However, the members of the Authority have reached different conclusions about the application of the accuracy standard to the following statement, in terms of whether it breached Standard 5:
…as a trustee I had a duty to defend my aunt because she wasn’t there to speak for herself.
 A majority of us (Peter Radich exercising his casting vote as Chair, and Te Raumawhitu Kupenga) would uphold the complaint. A minority, (Mary Anne Shanahan and Leigh Pearson) find that the accuracy standard did not apply to this statement, and would not uphold the complaint.
Majority View (Peter Radich and Te Raumawhitu Kupenga)
 We understand the statement ‘…as a trustee I had a duty to defend my aunt’, to be one where Ms Fisher was saying that she had a legal duty as a trustee in her aunt’s estate to defend her Will. We think that in saying she had a legal duty to do what she did, Ms Fisher was contrasting this with an action taken as a matter of choice and was in effect saying that she had no choice. The law is clear that a trustee has a duty to remain neutral in cases such as this.
 Ms Fisher had two different sets of legal representatives in the proceeding. One represented her as a trustee and the other represented her siblings and herself in their position as contestants. The lawyer who represented Ms Fisher as a trustee remained neutral and took no active part in the proceeding. The legal representatives who advanced the position of Ms Fisher and her siblings were those who carried on the contest. It was not therefore correct for it to have been said that the contest was continued by Ms Fisher as a trustee. It is therefore clear in our view that the statement made was wrong and inaccurate.
 If a statement is wrong and inaccurate it is only in breach of the standard if it is expressed as a statement of fact and not a mere statement of opinion. The statement of fact vs. statement of opinion dichotomy is notoriously difficult to apply in practice. Some cases will be clear but there will be other cases which are not. Ultimately judgements have to be made, but in our view the judgements need to be made in a measured and principled way, not on intuition alone. There are tests and circumstances which can be methodically applied in the making of a judgement. A useful test is whether the statement made is one which is capable of being readily proven to be true or not. It is sometimes referred to as the ‘verifiable fact’ test. Then there is the test of whether the words used were accompanied by qualifying words such as ‘in my opinion’ or ‘I think’. The purpose for which the statement is being made is useful in determining its categorisation. Context is all important.
 We conclude that here what was being said was being said as a matter of fact. It is a statement which was factually wrong. It was not qualified as opinion. It was made in a context where in fact as a trustee Ms Fisher’s duty was to remain neutral. We therefore consider ourselves to be driven to the conclusion that this was a statement of fact and would have been heard as a statement of fact from someone of standing who had just gone through extensive litigation with the support of lawyers. We know that the complainant was unhappy with what was said.
 We now address materiality and in doing so we look at the interview as a whole. The interview explored the range of investment activities in which Ms Fisher was involved. It covered a recent substantial acquisition made by her firm. In the last stage of the interview the radio host sought to raise the question of the family litigation. In response to the raising of this undoubtedly sensitive topic, Ms Fisher made the statement that what she did in the litigation was done as a matter of duty and not as a matter of personal choice.
 The interview presented Ms Fisher as a significant and important investment advisor and investment manager in New Zealand. It covered a recent substantial acquisition of the Tower Investment Fund which Ms Fisher’s firm had made. The interview sought to give listeners an insight into Ms Fisher as a person. In the last stage of the interview, the question of the family litigation was raised. This had been then recently covered in other media. The segment of the interview in which the complained statements were made was small in relation to the whole interview. The matter had been raised by the radio host as a concluding issue. We think that the topic raised by the broadcaster was material to the overall interview in that it gave or sought to give a view of Ms Fisher in a family context as opposed to being in a purely commercial context. It sought no doubt to give an insight into family difficulties which often have to be faced. We think that the latter segment of the interview was an integral part of the whole interview and was material.
 We well understand the difficulties for a broadcaster particularly in a live interview where something may be said in relation to a technical topic. What is said may not be recognised as being inaccurate. If it is something stated as a fact and if it is material then, when the broadcaster comes to learn that what was said was inaccurate, the question of correction must at least be addressed. In some cases it may not be possible to sensibly effect a correction. It may be too late and what was said may have become lost in the mists of time. In other cases and this may be an example, something may be said when there is insufficient time left within the interview for correction. In such cases it may be difficult or pointless to make any correction but that does not mean that any inaccuracy can be dismissed and not addressed.
 The complaint of Mrs Kirby was given to the broadcaster within 20 days of the broadcast which took place on 14 March 2013. The complaint was very well and tightly expressed. In response, the broadcaster declined to uphold the complaint, and the following reasons were given in regards to accuracy:
[RNZ] has carefully reviewed the item, and cannot agree with the assertions you make in your complaint. Turning firstly to the matters of accuracy that you raise, [RNZ] has considerable doubt as to whether the disputed facts you raise are material to the listeners understanding of what was said in the interview. It was clear that there was a family dispute over the matter of the Will, and in the context of what was said, Ms Fisher clearly indicated on two occasions in the interview that she acted in her role as a trustee. The overall thrust of the comments was that there was an issue of whether a person’s wishes expressed in a Will can be changed as some point later. It was clear from what Ms Fisher said that as a result of court action changes were made and the points you raise would not alter this understanding which was gained by our audience. This aspect of your formal complaint was therefore not upheld.
 We see the response of the broadcaster as one which did not properly address the issues. We do not think that the broadcaster has understood the point that the complainant was making. We think that the broadcaster ought to have better evaluated the substance of the complaint. The broadcaster through its interview raised this issue of the Court proceedings itself. We expect that the interviewer would have undertaken some research into what had happened before raising the issue. When the complaint was made we think it ought to have been better understood and ought to have been addressed. Because the complaint was not adequately addressed this dispute within a family now falls to us to address.
 The question now is what this Authority should do. We, the majority are satisfied that there has been a breach of the accuracy standard and that one of the statements complained about was an incorrect statement of fact which was material. We do not see this as being a serious breach by the broadcaster. It is something which we would have preferred to have seen sensibly dealt with by the broadcaster. There could have been an acknowledgement that a breach had occurred. The breach was of a kind probably not to warrant any corrective action beyond an acknowledgement to Mrs Kirby.
 For these reasons, we are obliged to uphold the complaint in the one respect to which we have referred. This is not a case in which we are likely to be persuaded that any orders or further action are appropriate. This is particularly so having regard to the division of views within this Authority. We would like to think that this family dispute will be left to fade out of the public arena.
Minority View (Mary Anne Shanahan and Leigh Pearson)
 As noted by the majority, the accuracy standard (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.
 We reiterate that this complaint raises similar issues to those considered in Bolton,2 specifically, the extent to which, if at all, a broadcaster is required to satisfy itself as to the accuracy of statements made by persons being interviewed. Undoubtedly a broadcaster has responsibilities under the accuracy standard. However, as noted by the High Court in Bolton on appeal, section 14 of the New Zealand Bill of rights Act 1990 recognises that everyone has the right to freedom of expression, including freedom to seek receive and impart information and opinions of any kind in any form. This is broad-based protection of all forms of speech, even false speech.
 The objective of the accuracy standard is to protect audiences from receiving misinformation and thereby being misled. However, the New Zealand Bill of Rights Act explicitly protects the freedom to give one’s opinions, even if wrong. Hence, we must be careful to interfere with speech under this standard, and only do so if it is very clearly a statement of fact and not an opinion that incorporates factual statements. This is explicitly recognised by guideline 5a (set out at paragraph  above).
 Having listened to the entire programme to assess the context in which Ms Fisher’s comments were made, it is the minority’s view that the item was clearly distinguishable as opinion. Ms Fisher was interviewed from some 33 minutes in what was essentially a personality interview in which she delivered her views on a range of subjects such as the Tower purchase, her investment philosophy and finally on her motivation for defending the family protection proceedings. Ms Fisher did not prefix every sentence with ‘I think’ but it was nonetheless clear that the segment comprised her thoughts, analysis and opinions. This format is familiar to Radio Zealand National listeners.
 In the introduction to this part of the programme Kathryn Ryan asked Ms Fisher ‘What was your motivation in that?’ and ‘What was your decision to contest that about?’ Ms Fisher was clearly being asked a personal question about her motivation. Everything said by her was in the context of that. Ms Fisher’s answers clearly expressed her opinion and contained many markers that the answer was her personal analysis, comment and opinion. For example, she used the phrases: ‘it was odd and I suppose I learnt a lot’; ‘almost like me having to defend…’; ‘in my mind…’; ‘yes, look it was unpleasant’; ‘look in my mind it was essentially a case …’; and ‘so it still surprises me’.
 We depart company with the majority in regard to the statement ‘…as a trustee I had a duty to defend my aunt because she wasn’t there to speak for herself’. This statement, along with the statement outlined at paragraph , was framed as fact but on analysis we find they were clearly Ms Fisher’s interpretation and opinion.
 While Ms Fisher’s assertion that her role as trustee ‘was to defend my aunt’ was legally incorrect, in the context of this item we do not think that listeners would have interpreted this a factual statement. This is despite the absence of the words ‘I think’ at the commencement of the sentence. Ms Fisher was asked about her motivation for defending the family protection proceedings and for appealing the High Court decision. Ms Fisher said she ‘had a duty to defend my aunt because she wasn’t there to speak for herself’. That was how Ms Fisher saw matters and how she explained her motivation for her actions. She inaccurately referred to this motivation as applicable to her role as trustee and not as a beneficiary defendant.
 We do not see this mistake as material. It was clearly how she was motivated which was the question she was answering. We do not consider that listeners would expect her to be authoritative on the legal point. Whilst expressed unequivocally, in the context of the entire discussion, we the minority view this statement as an expression of her opinion explaining her motivation.
 The minority therefore would decline to uphold the complaint under the accuracy standard.
For the above reasons a majority of the Authority upholds the complaint that the broadcast by Radio New Zealand Ltd of an item on Nine to Noon on 14 March 2013 breached Standard 5 of the Radio Code of Broadcasting Practice.
 Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. As we have said above, in all the circumstances, including that the decision was not unanimous, we do not think that any order is warranted on this occasion.
Signed for and on behalf of the Authority
15 July 2014
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Melissa Kirby’s formal complaint (including transcript of interview) – 5 April 2013
2 RNZ’s response to the complaint – 1 May 2013
3 Ms Kirby’s referral to the Authority – 7 June 2013
4 RNZ’s response to the Authority – 5 July 2013
5 Ms Kirby’s final comment – 18 July 2013
6 RNZ’s confirmation of no final comment – 24 July 2013
7 Comment from Ms Fisher, invited by the Authority – 12 February 2014
8 Ms Fisher’s response to Authority’s provisional decision – 29 May 2014
9 RNZ’s response to Authority’s provisional decision – 3 June 2014