Lerner and New Zealand Media and Entertainment - 2016-039 (25 July 2016)
- Peter Radich (Chair)
- Te Raumawhitu Kupenga
- Paula Rose
- Leigh Pearson
- Jacob Lerner
ProgrammeKPMG Early Edition
BroadcasterNew Zealand Media and Entertainment
Channel/StationNewstalk ZB # 2
[This summary does not form part of the decision.]
During an editorial segment on KPMG Early Edition, host Rachel Smalley discussed the standing down of British Labour MP Naz Shah after accusations of anti-Semitism. Ms Smalley went on to question why criticism of Israel is often viewed as criticism of the Jewish faith, referring to comments she made during a broadcast in 2014 which were critical of Israel and the ‘abuse’ she received in response. The Authority did not uphold a complaint alleging that Ms Smalley’s reference to her previous comments was misleading – partly because she did not refer to the Authority’s finding that one of her previous statements was inaccurate – and that the item was unbalanced. The Authority found that Ms Smalley conveyed the main message of her earlier comments without repeating the original inaccuracy, so it was not misleading for her to not mention the Authority’s previous finding. In relation to balance, the Authority considered the broadcaster was not required to present alternative views taking into account the nature of the item. Regular listeners would not have expected a balanced examination of the issue but would rather have recognised that this was an editorial piece from the particular perspective of the host.
Not Upheld: Accuracy, Balance
 During an editorial segment on KPMG Early Edition, host Rachel Smalley discussed the standing down of British Labour MP Naz Shah after accusations of anti-Semitism. Ms Smalley went on to question why criticism of Israel is often viewed as criticism of the Jewish faith. She referred to comments she made in a 2014 broadcast which were critical of Israel and the ‘abuse’ she received in response to those comments.
 Jacob Lerner complained that the broadcast was misleading in relation to the comments Ms Smalley made in the 2014 broadcast, alleging Ms Smalley ‘misquoted herself in order to edify her position in response to the criticism’, and misled listeners by omission in failing to mention that her earlier comments were found to be inaccurate by the Authority.1 Mr Lerner further complained that the item was unbalanced as it did not present any contrary viewpoints on the incident involving Naz Shah and anti-Semitism in the UK Labour Party more generally.
 The issue is whether the broadcast breached the balance and accuracy standards as set out in the Radio Code of Broadcasting Practice.2
 The item was broadcast on Newstalk ZB on 28 April 2016. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
 The decision that considered the 2014 comments referred to by Ms Smalley in the broadcast and by Mr Lerner in his complaint is Cumin and The Radio Network Ltd.3
 In that decision the Authority upheld the complaint that one of the statements Ms Smalley made during KPMG Early Edition, broadcast on 1 August 2014, was inaccurate. Ms Smalley’s statement was that Israel’s bombing of a UN school ‘killed every civilian inside’. The Authority found this was a material point of fact which related to a specific incident and was capable of being assessed as factually accurate or inaccurate; and in fact, only 16 out of 3,300 people sheltering in the school were killed. The Authority did not uphold the complaint that other statements made by Ms Smalley were inaccurate, as they were clearly her opinion.
 The Authority did not impose any order on the broadcaster in relation to its finding of inaccuracy.
Nature of the programme and freedom of expression
 Freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive information, is the starting point in our consideration of complaints. We may only interfere and uphold complaints where the limitation on the right would be reasonable and justified in a democratic society.4 The first step is to consider the nature of the programme and the value or level of public interest that it carried.
 KPMG Early Edition is described on Newstalk ZB’s website as a ‘fast-paced news programme hosted by Rachel Smalley. Setting the agenda for the day, KPMG Early Edition is across the latest developments both at home and abroad with interviews, international correspondents and a regional wrap-up’.5
 Ms Smalley began the item by referring to the standing down of British Labour MP Naz Shah, who was accused of being anti-Semitic after it was discovered she shared a post on Facebook two years earlier. The image in the post depicted a map of Israel overlaid on a map of the US and was headed, ‘Solution for Israel-Palestine conflict... Relocate Israel into United States’.6 Ms Smalley stated that Ms Shah was ‘foolish’, but also questioned whether her actions were so severe that she should have been stood down. Ms Smalley compared Ms Shah’s Facebook post with comments made by Donald Trump that all Muslims should be banned from entering the United States, and asked, ‘Why is it we’re okay with suggesting that everyone of Muslim faith should be banned from entering the US – why are we okay with that, but not with this post that was shared?’
 Ms Smalley then discussed why criticism of Israel is often viewed as criticism of the Jewish faith. She referred to comments she made in another KPMG Early Edition broadcast in 2014 which were critical of the actions of the Israel Defence Force in bombing a UN School, where people were killed, and the ‘abuse’ she received subsequently for being anti-Semitic. Ms Smalley summarised her earlier comments, saying:
In 2014, I was very critical of the Israel Defence Force when it bombed a United Nations school in Gaza. It was sheltering some 3,000 civilians, and the UN had given the Israeli Defence Force the co-ordinates for that school many, many times. Still, it was bombed and people were killed.
And when I criticised Israel for that, the response here was extraordinary. The letters, the emails, the abuse was quite unlike anything I’d had before. I was, apparently, anti-Semitic.
What I said, rather, was that the Israeli Defence Force was wrong to bomb a school because children had died in the Gaza strip – that’s all I said. I didn’t mention the religion. I didn’t mention the faith. I didn’t mention ethnicity or race. I simply criticised an act of war for killing children.
 Ms Smalley concluded the item by asking, ‘Why can we not criticise the actions of Israel?’, and invited listeners to give feedback on this issue.
 We consider the item subject to complaint carried high value in terms of the exercise of freedom of expression. The segment provided a forum for Ms Smalley to express her opinions on significant and contentious issues, in the interests of generating discussion among listeners. This value must be weighed against the level of harm alleged to have been caused by the broadcast, in terms of the underlying objectives of the relevant broadcasting standards. The harm alleged in this instance is that listeners were misled by Ms Smalley’s account of the earlier broadcast and were not provided with alternative perspectives to enable them to reach their own views on the issues covered.
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 being significantly misinformed. Guideline 9a to the standard states that the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.
 Mr Lerner argued that Ms Smalley incorrectly summarised her remarks from her earlier broadcast about Israel, and that this was a statement of fact because listeners would expect her to report her earlier comments accurately. He also argued that Ms Smalley misled listeners by omission, as she did not mention that her comments during that broadcast had been the subject of an upheld accuracy complaint by the Authority. Mr Lerner maintained that these points were material as they would significantly affect the audience’s understanding of the programme. He said ‘knowledge of all facts could drastically change the audience’s opinion of supporters of Israel, of Ms Smalley and of Ms Smalley’s original statements and thus her position on Israel’, as well as the reaction to Ms Smalley’s previous comments.
 NZME argued the broadcast clearly fell into the category of opinion and was therefore exempt from the requirement to be accurate. It noted that the Authority only upheld the complaint about Ms Smalley’s previous broadcast in relation to one statement, regarding the numbers of deaths in the bombing of the UN school, and found the remainder of her comments to be opinion and therefore not inaccurate. NZME considered that while the complainant asserted that the host should have included other information in her commentary, he did not challenge her on any material point of fact. It submitted that the Bill of Rights Act 1990 guarantees the right to freedom of expression, and while the complainant may not like what the host is saying, this was ‘part of the sharing of ideas in an open democracy’.
 In response, Mr Lerner refuted the broadcaster’s argument that a whole segment could be exempt from the requirement to be accurate by virtue of being opinion, arguing that this exemption (in guideline 9a) applied to statements only.
 The first question is whether KPMG Early Edition falls within the category of news, current affairs or factual programming to which the accuracy standard applied. In the Cumin decision we held that while the particular segment in question was an editorial piece, it formed part of what the broadcaster described as a ‘fast-paced news programme’ and therefore fell within the scope of the standard.7 We consider the same reasoning applies here.
 In our view, the accuracy complaint turns on the nature of the criticism Ms Smalley faced following the 2014 broadcast. If the criticism was only of Ms Smalley misreporting the number who died in the UN school bombing, then we would have sympathy for the complainant’s view that the failure to refer to the Authority’s decision for context in the present piece could be seen to be material and also misleading.
 Further information was requested from NZME regarding the nature of the response to Ms Smalley’s earlier broadcast. NZME advised that the criticism and abuse directed at Ms Smalley, following the 2014 piece, related to her views on Israel/Palestine relations generally, rather than the misreporting of the number of deaths.
 In light of this, we consider that in the 2016 broadcast Ms Smalley fairly summarised her earlier 2014 comments in order to capture the main message of that broadcast and the response that followed, in a way that related to the issue she was seeking to raise in the present item. We do not think that the manner in which she did this was misleading.
 In the 2014 broadcast, Ms Smalley stated that the Israeli Defence Force’s bombing of the UN school had ‘killed every civilian inside’, which was incorrect, as 16 out of 3,300 people died. In the present broadcast, Ms Smalley was evidently careful not to repeat her earlier error in the 2016 piece, saying ‘[the school] was bombed and people were killed’, rather than everyone was killed. By not recalling her earlier comments word for word, Ms Smalley avoided further dissemination of the inaccurate statement.
 Ms Smalley went on to explain the intended meaning of the earlier comments – that she was criticising an act, rather than a religion – and this related to the position she was taking in this broadcast. The factual issue of the number of deaths in the school bombing was not material to this perspective.
 For these reasons, we do not consider it was necessary, in the interests of ensuring accuracy, for Ms Smalley to repeat her earlier statement verbatim or to refer to the Authority’s finding that that statement was inaccurate.
 Accordingly, we do not find a breach of the accuracy standard.
Did the item discuss a controversial issue of public importance which required the presentation of alternative 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.
 Mr Lerner considered that the item was unbalanced regarding the issue of alleged anti-Semitism within the British Labour Party (including the incident involving Ms Shah), as no contrary viewpoints were presented within the programme or across Newstalk ZB’s programming. Mr Lerner viewed this issue as a controversial issue of public importance, especially in light of recent events in New Zealand regarding anti-Semitic comments posted on Andrew Little’s Facebook account.8 He maintained that whether or not this was an editorial segment, the broadcast was still required to be balanced as it formed part of a news programme. Mr Lerner did not consider that it would have been clear to listeners that the statements were Ms Smalley’s opinion, and referred to the Authority’s Litmus Testing 2015 [which considered the accuracy standard] in support of his argument.9 Mr Lerner further considered that the availability of commentary in other media did not excuse NZME’s lack of balance on the issue.
 NZME agreed that the topic discussed in the broadcast was a controversial issue of public importance, but argued that, as it was editorial comment, it was not news, current affairs or factual programming to which the standard applied. It said this was an editorial segment from the host slanted from a particular viewpoint and so did not purport to be balanced. NZME noted that the editorial occurs at the same time every day and considered it would be clear to the audience that the statements were the host’s opinion.
 NZME further argued that, in any event, while Newstalk ZB may not have featured other commentary on the Naz Shah incident, it did feature substantial commentary on Israel/Palestine relations, and many other news sources had covered the incident. NZME also argued that the host welcomed direct feedback from listeners at the end of the programme, which provided an opportunity to present alternative views.
 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’ (guideline 8a).
 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’. A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.
 For the reasons we have outlined at paragraph , in our view KPMG Early Edition was a news programme to which the balance standard applied.
 We agree with both parties that allegations of anti-Semitism within the British Labour Party, including the incident involving Ms Shah, amounted to a controversial issue of public importance. These were serious and disputed allegations which were highly controversial in Britain, and also attracted coverage and debate in New Zealand.10
 The next question is whether this issue was ‘discussed’ in the broadcast. In our view, Ms Smalley did not discuss the issue of alleged anti-Semitism within the British Labour Party in the manner envisaged by the balance standard.
 The broadcast was transparently presented as an editorial segment from the perspective of Ms Smalley. While she used the Naz Shah incident and allegations in Britain as a springboard for the stance she took in the remainder of the piece, the segment did not purport to be a balanced examination of the broader issue of alleged anti-Semitism in the British Labour Party or a review of Ms Shah’s actions. This editorial is broadcast at the same time each day and regular listeners would not expect a balanced discussion of the chosen topic. Rather, they would recognise that Ms Smalley was giving her own personal views on the matter in the interests of generating debate, in a manner regular listeners would be familiar with. For this reason the broadcaster was not required to present views to counter Ms Smalley.
 In any event, we note that Ms Smalley’s discussion of the reproach which followed her previous criticism of Israel acknowledged the existence of opposing views on the issue of criticising Israel generally, and made listeners aware of the highly controversial and volatile nature of the issue. At the end of the item Ms Smalley also explicitly invited listeners to give their own views, and the issue did attract other coverage such that other perspectives were available to listeners.
 Accordingly we do not find any breach of Standard 4.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
25 July 2016
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Jacob Lerner’s formal complaint – 28 April 2016
2 NZME’s response to the complaint – 10 May 2016
3 Mr Lerner’s referral to the Authority – 21 May 2016
4 NZME’s response to the Authority – 25 May 2016
5 NZME’s response to the Authority’s request for further information – 21 and 22 June 2016
6 Mr Lerner’s response to NZME’s response to Authority’s request for further information – 22 June 2016
1 Cumin and The Radio Network, Decision No. 2014-098
2 This complaint was determined under the new Radio Code, which took effect on 1 April 2016 and applies to any programmes broadcast on or after that date: http://bsa.govt.nz/standards/radio-code
3 Decision No. 2014-098
4 See sections 5 and 14 of the New Zealand Bill of Rights Act 1990
7 Cumin and The Radio Network Ltd, Decision No. 2014-098 at 
9 The Authority’s litmus testing in 2015 focused on the accuracy standard, in particular how audiences distinguish between fact and opinion. See Litmus Testing 2015 (Broadcasting Standards Authority, June 2015)
10 See, for example, http://www.stuff.co.nz/world/europe/79430239/zionism-and-hitler-a-guide-to-the-antisemitism-scandal-rocking-britains-left; http://www.nzherald.co.nz/world/news/article.cfm?c_id=2&objectid=11631913