Lobb and Television New Zealand Ltd - 2020-154 (20 April 2021)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- Sondra Lobb
Programme1 News at Midday
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
The Authority did not uphold a complaint that a 1 News at Midday item about the United States presidential election lacked balance because it included clips of Joe Biden supporters and Biden’s campaign, but not Donald Trump supporters or the Trump campaign. The US election, while it could be considered a controversial issue of public importance for the purposes of the balance standard, was an issue that was widely covered by the media, including by TVNZ. Balance is not achieved by a ‘stopwatch’ meaning broadcasters are not required to give equal time to alternative viewpoints. The lack of emphasis on Trump supporters and the Trump campaign in this particular item would not have left viewers uninformed and did not breach the balance standard, given the widespread coverage available including of Mr Trump’s campaign and supporters.
Not Upheld: Balance
 On 3 November 2020, 1 News at Midday covered the final day of campaigning in the United States presidential election, first with a piece from TVNZ’s Q+A correspondent in the US, Jack Tame, and second, excerpts from a pre-recorded item sourced from the BBC. Mr Tame spent some time summing up Joe Biden’s and President Donald Trump’s campaign strategies and styles, as well as commenting on the precautions taken by law enforcement authorities to stop any potential protestors or rioters. This was followed by a short introduction from the newsreader and parts of the BBC item:
Newsreader: And the way the candidates have conducted their campaigns has been an issue at the heart of this election. The BBC's Nick Bryant explains.
Mr Bryant: The Biden campaign has tried to make the road to the White House as safe a journey as possible, holding drive-in rallies where mask-wearing is compulsory. Whether or not you observe the COVID protocols has become a marker of your politics.
Vox pop 1:1 With this guy, Trump has destroyed everything. He’s a vile, nasty human being. He can’t be the President.
Vox pop 2: I want someone my daughter can look up to.
Vox pop 3: We need a return to normalcy, we need decency in the White House and we need somebody who knows how to get things done.
Mr Bryant: This has been such a surreal presidential election, one in which the method of campaigning has actually become a campaign issue in itself.
Joe Biden has tried to turn this into the coronavirus election, a referendum on Donald Trump’s handling of a viral onslaught that’s killed more than 230,000 Americans.
Mr Biden: To beat the virus, we first gotta beat Donald Trump. He’s the virus.
Mr Bryant: But it’s not just the health of America he’s seeking to rehabilitate. He says he’s trying to save its soul.
Mr Biden: We choose hope over fear. We choose unity over division. We choose science over fiction. And yes, we choose truth over lies.
Mr Bryant: Biden events are nowhere near as crowded as the rallies for Donald Trump, but that’s precisely the point. Joe Biden is the candidate of a very different America. He’s been more high-energy in these final days of campaigning, but for much of 2020, the former Vice President has almost been an invisible candidate…Many Americans are yearning for a presidency they could have on in the background. But has this 77-year-old aroused the necessary passion that’s often needed to win?
 Sondra Lobb complained the item breached the balance standard because:
- The item showed clips of Mr Biden’s supporters but there were no clips of Mr Trump’s supporters.
- ‘It was a[n] unbalanced and bias[ed] presented item in contrast to the full item shown on BBC less than an hour before. It seemed a glaring omission by TV1.’
The broadcaster’s response
 TVNZ declined to accept Ms Lobb’s complaint as in its view the complaint did not raise any allegation TVNZ failed to comply with broadcasting standards:2
- The complaint was based merely on the complainant’s preference for what she would like reported and does not raise issues of broadcasting standards.3
- The complaint did not relate solely to material that has been broadcast. Rather, it related to material that has not been broadcast (parts of the BBC clip that was not included). Whether or not to include the entire BBC broadcast is a matter of editorial discretion and not an issue of broadcasting standards.
 TVNZ added in further submissions it did not consider the balance standard was breached:
- The United States presidential election is not a ‘controversial issue of public importance’ to which the balance standard applies.
- In any event TVNZ has covered a wide range of significant points of view on the US election within the period of current interest, including points of view from Donald Trump, his supporters and his legal team.4
 The balance standard5 states that when controversial issues of public importance are discussed 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.
 We have watched the broadcast and read the correspondence listed in the Appendix.
 We have also considered the important right to freedom of expression, which is our starting point. Our task is to weigh the right to freedom of expression and the level of value and public interest in the broadcast, against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where the resulting limitation on the right to freedom of expression is reasonable and justified.
Determination of the complaint
 In light of TVNZ’s initial response to the complaint, we first considered whether it was appropriate to exercise our discretion to decline to determine the complaint under section 11(b) of the Broadcasting Act 1989.
 We concluded Ms Lobb’s complaint amounted to an allegation the programme breached broadcasting standards, and should therefore be determined by the Authority:
- Ms Lobb alleged the broadcast breached the balance standard.
- Complaints under the balance standard typically concern the alleged omission of a significant viewpoint which in the complainant’s view has resulted in a lack of balance in the relevant programme – rather than complaining about ‘material that has not been broadcast’. In this case the complaint is that no images or viewpoint were included in support of Mr Trump.
- Ms Lobb’s complaint is distinguishable from complaints in previous decisions where we found the complainants raised matters of editorial discretion or personal preference rather than broadcasting standards.6
 We therefore proceeded to consider whether the item breached the balance standard.
 For the balance standard to apply, the subject matter of the broadcast must be an issue of ‘public importance’, it must be ‘controversial’ and it must be ‘discussed’. An issue of public importance is 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.7
 The United States presidential election had topical currency at the time of the broadcast. It was a subject matter that excited conflicting opinion and generated a wide range of coverage and commentary both here and internationally. We also consider it had potential international implications, and therefore it may have significant potential impact on, or be of concern to, members of the New Zealand public. We therefore find the item discussed a controversial issue of public importance for the purposes of the standard.
 The complainant’s particular concern is that 1 News’ presentation of the BBC item focused solely on Mr Biden’s campaign and did not include any images of, or significant viewpoints from, Mr Trump’s supporters, or Mr Trump’s campaign.
 In our view these were editorial decisions that were unlikely to leave the audience misinformed about the nature of the US election or presidential campaign, and did not result in any breach of the balance standard.8 This is because:
- The 1 News at Midday coverage comprised two short items on the eve of the US presidential election and the final day of campaigning, commenting largely on the differing campaign styles of Mr Biden and Mr Trump. In this sense it reported on the latest developments in the presidential election as it unfolded, rather than purporting to be an in-depth, balanced discussion of all aspects of the election or the campaigns.
- We note in any event, in the first part of the 1 News at Midday coverage, Mr Tame did include a ‘Trump segment’ commenting on Mr Trump’s campaign, saying: ‘President Donald Trump, the incumbent once again is crisscrossing across the battleground states that will decide this election. Overnight, he was campaigning past midnight in Florida. Today, he's holding five separate rallies as he tries to increase his support.’
- The standard also allows for balance to be achieved over time, within the period of current interest;9 broadcasters are not required to present all significant viewpoints within every programme. Nor is balance achieved by the ‘stopwatch’10; the standard does not require equal time to be given to each viewpoint. While this particular item did focus more on Mr Biden’s campaign, TVNZ has provided a wide range of coverage of the election more broadly,11 including from the perspectives of Mr Trump and his supporters.12 Additionally, at the end of the item, viewers were alerted to a range of upcoming coverage by TVNZ as the elections unfolded, signalling there was further coverage to come which was likely to contain a range of perspectives.
- The US presidential campaign was also widely covered by other media outlets throughout the period, both before and after campaigning ended.13
- Viewers could therefore reasonably be expected to have a broad understanding of the main perspectives on the issue, including the campaign strategies and support for both Mr Biden and Mr Trump.14
 In these circumstances, we have not found actual or potential harm of the manner alleged in the complaint, which justifies regulatory intervention.
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 Sondra Lobb’s original complaint to TVNZ – 3 November 2020
2 TVNZ’s response to Ms Lobb – 3 November 2020
3 Ms Lobb’s referral to the Authority – 3 November 2020
4 TVNZ’s final comments – 24 December 2020
1 Short interviews with members of the public to gauge popular opinion
2 Broadcasting Act 1989, s 6(1)(a)
3 Broadcasting Act 1989, s 5(c)
4 See for example: ”No prizes for guessing how West Virginia will vote in US presidential election” TVNZ (online ed, 1 November 2020), “Donald Trump on frenzied schedule as he tries to overturn polls” TVNZ (online ed, 1 November 2020), ”With US election still undecided, Trump supporters take to the streets” TVNZ (online ed, 6 November 2020), ”The enigma that is Donal Trump remains incredibly popular in the US” TVNZ (online ed, 8 November 2020)
5 Standard 8 of the Free-to-Air Television Code of Broadcasting Practice
6 See for example Sheerin and MediaWorks TV Ltd, Decision No. ID2017-022 relating to a complaint about the ‘sheer volume’ of news stories from the US included in the news bulletin. Also see Malcolm and Radio New Zealand Ltd, Decision No. 2016-018, Wratt and MediaWorks TV Ltd, Decision No. 2019-031 and Golden and Radio New Zealand Ltd, Decision No. ID2017-034
7 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
8 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
9 Guideline 8b and Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
10 See for example: End-of-Life Choice Society NZ and Radio New Zealand Ltd, Decision No. 2020-095 at 
12 See, for example: Anna Burns-Francis “Donald Trump on a frenzied schedule as he tries to overturn polls” TVNZ (online ed, 1 November 2020); Anna Burns-Francis “With US election still undecided, Trump supporters take to the streets” TVNZ (online ed, 6 November 2020); Anna Burns-Francis “The enigma that is Donald Trump remains incredibly popular in the US” TVNZ (online ed, 8 November 2020)
13 See for example: <https://www.theguardian.com/us-news/us-elections-2020>; <https://www.bbc.co.uk/programmes/b00fr2hz>; <https://www.newshub.co.nz/home/storytag.:storyTag=newshub:tag-library___uv___US%20Election.:offset=0.html> and <https://www.rnz.co.nz/national/programmes/nights/collections/the-americans-us-election-2020>
14 Guideline 8c