Loder and Radio New Zealand Ltd - 2017-035 (4 September 2017)
- Peter Radich (Chair)
- Te Raumawhitu Kupenga
- Paula Rose QSO
- Mike Loder
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand
[This summary does not form part of the decision.]
A RNZ News bulletin reported on the NZ Police Association’s view that a recent spate of Police shootings was the result of ‘too many firearms getting into the wrong hands’. During the bulletin, the presenter said: ‘The Association’s President… says more than 20,000 firearms, including semi-automatic military weapons, are stolen or sold to offenders each year.’ The Authority upheld a complaint that the presenter’s reference to more than 20,000 firearms being stolen or sold to offenders was inaccurate. According to the Police Association, the President should have been quoted as saying ‘over 50,000 firearms enter the country each year, a number of which are stolen or sold to offenders’. While the broadcaster attempted to correct the quote in the online version of the story after the broadcast, the amendment did not correct the error, and in the Authority’s view RNZ’s audience was misled as a result.
 A RNZ News bulletin reported on the NZ Police Association’s view that a recent spate of Police shootings was the result of ‘too many firearms getting into the wrong hands’. During the bulletin, the presenter said:
The Association’s President… says more than 20,000 firearms, including semi-automatic military weapons, are stolen or sold to offenders each year. He says the shootings are not due to a change in the approach taken by the Police…
 Mike Loder complained that the presenter’s reference to more than 20,000 firearms being stolen or sold to offenders was incorrect.
 The issue raised in Mr Loder’s complaint is whether the broadcast breached the accuracy standard of the Radio Code of Broadcasting Practice.
 The item was broadcast during a RNZ News bulletin on 9 January 2017 at 7am. The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Background and scope of jurisdiction
RNZ online article
 As well as the broadcast news bulletin, RNZ also featured an online version of the report on its website.1
 The original online version of the article stated that: ‘The problem stemmed from more than 20,000 firearms, including military semi-automatic weapons, entering the country each year, which were then stolen or sold to offenders’. The statement was attributed to the Police Association’s President.
 Following Mr Loder’s complaint, RNZ updated the online article so that the sentence read: ‘The problem stemmed from more than 50,000 firearms, including military semi-automatic weapons, entering the country each year, which were then stolen or sold to offenders’.
 It is not within this Authority’s jurisdiction to make a determination on whether the online version of the article that appeared on RNZ’s website, or its correction, is in breach of content standards. Currently, the NZ Press Council is responsible for complaints about the website content of its members and associate members, of which RNZ is one. In making a determination on Mr Loder’s complaint, the Authority’s findings therefore relate only to the material broadcast as part of the news bulletin, and any action taken by the broadcaster in response to the complaint it received.
 Having said that, however, guideline 9c to the accuracy standard in the Radio Code of Broadcasting Practice states that if a material error of fact has occurred, broadcasters should correct it at the earliest appropriate opportunity. The online correction made by RNZ is therefore relevant to the Authority’s consideration of whether the broadcaster took appropriate steps to correct any error, and we discuss this issue further at paragraph .
Police Association correction
 The Police Association’s website featured a link to RNZ’s online article, along with the following correction:
Police not trigger happy, Police Assn says – Correction: In this story [the Police Association President] is incorrectly quoted as saying the problem stemmed from “20,000 firearms entering the country each year, which were then stolen or sold to offenders.” It should say, “over 50,000 firearms entering the country each year, a number of which are stolen or sold to offenders.”
 Following the Authority’s decision on this complaint, this correction was made to the online RNZ article.
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.
The broadcaster’s submissions
 RNZ submitted that:
- The accuracy standard is not intended to prevent the broadcast of material that is clearly distinguishable as analysis, comment or opinion.2
- The figure attributed to the Police Association’s President was incorrect, but this was ancillary to the concern he was voicing. The President’s concern was that the problem stemmed from firearms entering the country, and that while firearms may be in the community legitimately, these could be subject to theft.
- In this context, the exact number of firearms involved would not have affected the audience’s understanding of the thrust of his comments.
 In response, Mr Loder submitted:
- The 20,000 figure was incorrect, and RNZ exacerbated the issue by increasing the figure to 50,000 in the online story.
- RNZ’s submission suggested that it was acceptable to mislead the public in a news report, provided the reference supported the ‘general thrust’ of what the interviewer was saying.
 Our task in determining this complaint is to weigh the value of the news item, as well as the broadcaster’s right to freedom of expression and the audience’s right to receive information, against the level of actual or potential harm that might be caused by the broadcast. In this case, the harm alleged by the complainant is that listeners would have been misled by the presenter’s statement, as the number of firearms stolen or sold to offenders was not in fact 20,000 but only ‘a number’ of firearms out of 50,000.
 The first question for us is whether the statement complained about amounted to a material point of fact, to which the accuracy standard applied. We consider there was a combination of analysis, comment or opinion from the Police Association and its spokesperson, as well as material points of fact, within this item. For example, the item reported on the Association’s own views about the reasons for a recent ‘spate of shootings’, and the Association’s conclusion that this was due to a large number of firearms getting into the wrong hands. This represented the Association’s own analysis of recent events. However, in our view, listeners were likely to understand the President’s reference to the number of firearms entering the country as a statement of fact, given his position and role. Additionally, figures and statistics by their nature are verifiable – and so generally fall within the category of points of fact rather than opinion, which is someone’s view, and contestable.3
 On the issue of whether the statement was material, we note the Authority has previously found, in relation to a broadcast which used statistics to frame the item’s discussion, that audience members are likely to take note of highlighted statistics, so it is important to ensure that the figures used are correct.4 In our view the reference to the 20,000 figure was material to the message of the item and to listeners’ understanding of it, as it gave weight to the Association’s view that the illegal acquisition of firearms was a contributing factor to the recent spate of Police shootings. The broadcaster has accepted in its submissions that the figure was incorrect, and this is supported by the correction issued on the Police Association’s website.
 The next question then, having found the figure amounted to a material point of fact in the context of the item, and that it was inaccurate, is whether the broadcaster made reasonable efforts to ensure accuracy.
 We acknowledge that the statement in the item was clearly attributed to the Police Association’s President, acting as spokesperson for the Association in this case, and that the broadcaster could reasonably assume this was a reliable source and it did not have reason to question the accuracy of the figure.
 However, when RNZ was made aware of the error, and accepted there was an error, it needed to take appropriate action to correct it.5 We do not feel that it did so in this case. While RNZ attempted to amend the online version of the report, it did not properly correct the inaccurate figure that was broadcast until the publication of the Authority’s decision on this complaint. There is a significant difference between 20,000 or 50,000 firearms entering the country, all of which are then stolen or sold, and 20,000 or 50,000 firearms entering the country, a number of which are stolen or sold. Therefore it was crucial that the correction included the words ‘a number of which’ (as per the Association’s correction on its website). Instead, RNZ’s initial correction to the online article further magnified the error by increasing the number of firearms referenced during the news bulletin from 20,000 to 50,000, without clarifying that it was only some of these that were then sold or stolen.
 In our view it cannot therefore be said that the broadcaster took reasonable steps to ensure accuracy or to prevent audiences from being misled. It should have been a simple correction to make, and at the time of the initial correction, the online article did not correct the inaccuracy broadcast during the news bulletin. This meant that the harm, in terms of audiences being misled under the accuracy standard, was ongoing, until the quote from the Association was corrected. We are satisfied that requiring this correction to be made placed a reasonable and justified limitation on the broadcaster’s right to freedom of expression.
 We therefore uphold the complaint under Standard 9.
For the above reasons the Authority upholds the complaint that the broadcast by Radio New Zealand Ltd of an item during a RNZ News bulletin on 9 January 2017 breached Standard 9 of the Radio Code of Broadcasting Practice.
 Having upheld parts of the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.
Submissions on orders
 In response to the provisional decision, Mr Loder submitted:
- On its website, RNZ failed to correct the initial error while also compounding the error. The complainant had made this known to RNZ on multiple occasions.
- RNZ’s response to Mr Loder’s complaint was a ‘massive’ disappointment and a breach of trust.
 Mr Loder requested the following orders:
- A broadcast statement stating that:
- the figure broadcast and featured on RNZ’s website was incorrect, RNZ made no attempt to correct this and failed to correct its error once this was brought to its attention
- the Police Association was deceptive in providing this figure and later claiming this was made in error
- the issue of criminals using guns was a complex one, with a number of factors contributing, such as ‘lax sentencing’
- A member of the shooting fraternity be given the same time to ‘counter the lies presented’
- A maximum fine of $5,000 imposed.
 RNZ accepted the provisional decision and submitted:
- As a result of the provisional decision, it further corrected the online report with the additional information provided by the Police Association. It was not advised of this full correction at the time its first correction to the website content was made.
- The passage on RNZ’s website now reads:
The problem stemmed from more than 50,000 firearms, including military semi-automatic weapons, entering the country each year, a number of which are stolen or sold to offenders, he said.
- Given the passage of time since the original broadcast, lack of widespread interest and its ‘prompt action’ to further amend the online story, it did not consider further action was necessary.
Authority’s decision on orders
 Where a complaint is upheld, the Authority may make orders. In this case, the Authority may, for example, direct the broadcaster to broadcast and/or publish a broadcast statement, and/or pay costs to the Crown.
 In considering whether orders are warranted, the factors the Authority will take into consideration include:
- the seriousness of the breach, and the number of upheld aspects of the complaint
- the degree of harm caused to any individual, or to the audience generally
- the objectives of the upheld standard(s)
- the attitude and actions of the broadcaster in relation to the complaint (eg, whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated any harm caused)
- whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
- past decisions and/or orders in similar cases.
 As we have noted above, RNZ have now included the words required by the Police Association in its correction of the online article, in line with the Authority’s provisional decision.
 As noted in our decision, we consider this was a simple correction to make. While RNZ have submitted that the Police Association did not make its correction known to the broadcaster, we consider it should have been aware of the error at the time of Mr Loder’s first contact, and certainly once a formal complaint had been made. As such, RNZ’s submission that ‘prompt action’ was taken to amend the story is disingenuous. We were concerned at the length of time taken by the broadcaster to make such a simple correction, and would expect more prompt resolution of such errors in future.
 Having said this, we consider that the action now taken by RNZ corrects the harm caused during the broadcast bulletin, and the final written decision is sufficient to mark the breach of the accuracy standard and to correct the error. The correction now made to the online article is also sufficient to reduce any ongoing harm caused by misleading RNZ’s audiences.
 We therefore make no further order.
Signed for and on behalf of the Authority
4 September 2017
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Mike Loder’s formal complaint – 6 March 2017
2 RNZ’s response to the complaint – 3 April 2017
3 Mr Loder’s referral to the Authority – 10 April 2017
4 RNZ’s response to the Authority – 18 May 2017
5 Mr Loder’s final comments – 9 June 2017
6 Mr Loder’s submissions on the provisional decision – 24 July 2017
7 RNZ’s submissions on the provisional decision and orders – 25 July 2017
8 Mr Loder’s further submissions on orders – 27 July 2017
9 Mr Loder’s response to RNZ’s submissions – 28 July 2017
10 RNZ’s further comments – 31 July 2017
11 Mr Loder’s final comments – 1 August 2017
12 RNZ’s final comments – 2 August
1 See http://www.radionz.co.nz/news/national/322023/police-not-trigger-happy,-officers'-union-says. As a result of the Authority’s decision, this article has now been corrected by RNZ.
2 Guideline 9a
3 See the Authority’s Guidance: Accuracy – Distinguishing fact and analysis, comment or opinion, Broadcasting Standards in New Zealand Codebook, page 62
4Laven and Radio New Zealand Ltd, Decision No. 2015-076, at 
5 As per Guideline 9c (see paragraph )