Marr & Robinson and NZME Radio Ltd - 2018-080 (16 January 2019)
- Judge Bill Hastings (Chair)
- Wendy Palmer
- Susie Staley MNZM
- Paula Rose QSO
- Dave Marr and Tim Robinson
ProgrammeThe Leighton Smith Show
BroadcasterNew Zealand Media and Entertainment
Channel/StationNewstalk ZB # 2
[This summary does not form part of the decision.]
The Authority has not upheld two complaints that comments by Leighton Smith about climate change issues were unbalanced, inaccurate and unfair. Mr Smith provided his views in response to a news item, saying that climate change was not predominantly man made and was instead due to ‘normal variability’. The Authority noted that the balance and accuracy standards apply only to news, current affairs and factual programmes, and the requirements of the accuracy standard do not apply to statements of analysis, comment or opinion. In this case, the Authority considered it was clear that Mr Smith’s statements amounted to statements of opinion in a talkback context. In these circumstances, and taking into account the role and reputation of Mr Smith as a well-known climate change sceptic, listeners would not expect to hear a balanced or authoritative examination on the topic of climate change. Further, no individuals or organisations were treated unfairly in the broadcast. The Authority therefore found that the alleged harm did not outweigh the broadcaster’s right to freedom of expression, and its intervention in upholding the complaint would be unjustified.
Not Upheld: Balance, Accuracy, Fairness
 During a segment on The Leighton Smith Show, host Leighton Smith commented on an item that had been reported during the previous news bulletin, regarding a meeting held by the Wellington City Council to discuss climate change. Mr Smith made the following comments:
• ‘The story in the news with regard to the Council’s meeting in Wellington today to discuss climate change. This is a feel good group think little get together, as they all are.’
• ‘It’s not a matter of whether the climate’s changing, it is a matter of what is causing it. Is it natural? It is within normal variability? And every indication is that it is.’
• ‘So what’s causing it? Is it you? Is it your cows? No, it’s not and there is no evidence that there is. There is guess work and there is modelling, and that’s about the size of it. There is no proof and they’re far from it.’
 Mr Smith then quoted the views of a listener, saying:
Leighton, every time I hear fake news on climate change I feel like screaming… how the hell do we let minority groups like the Greens have so much influence? Very keen to hear your views on how an average citizen like me can push back on all this BS. I live for the day when we can yell at the man made climate change types: told you so!
 Mr Smith responded to the listener:
You’ve just got to keep beavering away… inform yourself, arm yourself, share your knowledge, and you will find plenty of people don’t want to know.
 The segment was broadcast at 9.07am on 7 September 2018 on Newstalk ZB.
 Dave Marr and Tim Robinson complained that this segment of The Leighton Smith Show breached the balance, accuracy and fairness standards of the Radio Code of Broadcasting Practice. Because the complaints raised similar issues about the same broadcast, we considered them together.
 The complaints can be summarised as follows:
- Scientific consensus was that climate change was predominantly man made.1
- Mr Smith’s view, which is counter to widely accepted scientific opinion, was expressed in the context of discussing current affairs and therefore the balance and accuracy standards applied to this segment of the programme.
- NZME did not make adequate efforts under the balance standard to present significant points of view on the issue of climate change. A later broadcast providing countering opinion to Mr Smith did not provide balance to his programme or to his statement directly.
- While The Leighton Smith Show is a talkback programme and was likely to include the presenter’s opinion, this particular segment was stated as fact and should therefore be subject to the requirements of the accuracy standard.
- The United Kingdom’s Office of Communications (Ofcom) recently upheld complaints against the BBC for allowing the broadcast of similar misinformation by a climate change sceptic.2
 Mr Marr also raised the fairness standard in his complaint, but did not make any specific submissions under the standard.
The broadcaster’s response
 NZME responded:
- Mr Smith’s views on climate change were well known.3 It would have been clear to listeners that Mr Smith was providing his own opinion or commentary in response to a recent news story.
- Climate change is a controversial topic which is widely debated. A wide variety of perspectives are available to audiences on this topic.
- The basis of talkback radio was opinion-based commentary, which meant it was subject to a lesser requirement to present a range of views. In any event, Newstalk ZB broadcast a counter-opinion during an interview between Kerre McIvor and Dr Nicola Gaston on 14 October 2018.4
- The host’s comments were clearly a matter of opinion, and the accuracy standard therefore did not apply.
The standards and relevant guidelines
 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 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 requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.5 Guideline 9d to the standard states that talkback programmes will not usually be subject to the accuracy standard.
 Finally, the fairness standard (Standard 11) requires broadcasters to deal fairly with any person or organisation taking part or referred to in a broadcast.
 When we consider a complaint that a broadcast has breached broadcasting standards, we first look at the important right to freedom of expression, both of broadcasters to impart, and audiences to receive, ideas and information. Our task is to weigh that right against the harm alleged to have been caused by the broadcast. In this case, the complainants have alleged that Mr Smith’s comments caused harm to audiences generally, through leaving them misled or misinformed about climate change issues.
 Our role is not to make a definitive finding on complex and scientific issues such as the causes of climate change, and to do so would be to overstep the Authority’s jurisdiction and our expertise.6 Rather our role is to consider whether the broadcast resulted in any actual or potential harm to listeners and if so, whether that harm was significant enough to outweigh the broadcaster’s right to freedom of expression.
 The key issue for us to consider in this case is whether the balance and accuracy standards, which apply only to news, current affairs and factual programming, apply to this segment of The Leighton Smith Show.
 The Authority has previously recognised that The Leighton Smith Show: ‘provides audiences with a mix of political analysis, world news and talkback. Each segment must be assessed on a case-by-case basis to determine whether it amounts to news and current affairs’.7
 In this case, Mr Smith’s comments followed the 9am news bulletin, which reported on a meeting by the Wellington City Council to discuss climate change. He then went on to read a message from a listener and respond to the listener’s comments. Our view is that listeners would have understood this segment of the programme to be part of a talkback segment, in which Mr Smith offers his particular perspective on a topical issue and engages with listeners on that issue. We consider it would have been clear to listeners that Mr Smith’ comments were statements of opinion in a talkback context. Listeners can then call or write in response, which occurred here and is a common aspect of talkback radio.
 We therefore do not consider that this was a news or current affairs segment of the programme and therefore the balance standard does not apply in this case.
 As we have said above, the accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion. Talkback programmes will not usually be subject to the accuracy standard, given they are largely comprised of opinion. The exception is where the host makes ‘an unqualified statement of fact’.8
 The factors we consider when distinguishing fact and analysis, comment or opinion include:9
- the language used
- the type of programme and the role or reputation of the person speaking
- the subject matter
- whether evidence or proof is provided.
 This programme is known for its talkback element and, in our view, most listeners would not expect to hear an authoritative examination on the topic of climate change from the particular perspective of a talkback host, particularly in the case of Mr Smith who is a well-known climate change sceptic. Taking into account the context of the broadcast, the role and reputation of Mr Smith and the widely debated climate change issue discussed, we consider listeners would have been aware that this segment comprised Mr Smith’s analysis, commentary or opinion in response to the news item.
 One of the complainants submitted that we ought to have regard to a recent decision by Ofcom (the UK broadcasting standards regulator) which dealt with a complaint about statements broadcast by a climate change sceptic (cited above at footnote 2). We are not required to follow decisions made by Ofcom. However, as this was raised by the complainant, the Authority considered the decision and found that the broadcast considered by Ofcom in that case can be distinguished from the broadcast subject to this complaint.
 The Ofcom case involved rules (standards) applying only to ‘news’. The broadcast considered by Ofcom was a news and current affairs programme (Today), broadcast on BBC’s national news, current affairs and factual radio network (Radio 4). Lord Lawson was one of five individuals interviewed at length on various climate change issues in response to the release of the film, An Inconvenient Sequel. In this context, Lord Lawson’s statements, which included figures and evidence for his claims, were likely to have been received as authoritative by listeners.
 By contrast, talkback hosts often present challenging or confrontational opinions, in order to encourage and engage in robust debate. We acknowledge Mr Marr’s submission that he was not aware of Mr Smith’s stance on climate change, and there may be some listeners in the same position.
 Overall, however, the right to freedom of expression allows for the expression of opinions that may be controversial, challenging or unpopular, provided they do not cause undue harm. In our view, the potential for harm is mitigated in this case by the talkback radio context of the broadcast and this particular segment. For these reasons, we consider that our intervention, in upholding the complaint and limiting the broadcaster’s right to freedom of expression, would be unjustified.
 Finally, we could see no issues under the fairness standard. We do not consider that any individuals or organisations referred to during this broadcast were treated unfairly, and we do not uphold this aspect of the complaint.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
16 January 2019
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Tim Robinson’s formal complaint – 7 September 2018
2 NZME’s response to Mr Robinson’s complaint – 17 September 2018
3 Mr Robinson’s referral to the Authority – 20 September 2018
4 Dave Marr’s formal complaint – 7 September 2018
5 NZME’s response to Mr Marr’s complaint – 17 September 2018
6 Mr Marr’s referral to the Authority – 26 September 2018
7 NZME’s response to the referrals – 15 October 2018
8 Mr Marr’s final comments – 17 October 2018
9 NZME’s confirmation of no further comment – 18 October 2018
1 Citing https://climate.nasa.gov/causes/
2 Concerning comments made by Lord Lawson on Today, BBC Radio 4, 10 August 2017, 6:00 (Ofcom Broadcast and on Demand Bulletin, Issue 351, 9 April 2018)
3Saunders and NZME, Decision No. 2016-089 at 
4 Why we must pay attention to the IPCC report, 14 October 2018, Newstalk ZB
5 Guideline 9a
6Grieve and MediaWorks TV Ltd, Decision No. 2016-019 at 
7 Saunders and NZME Radio Ltd, Decision No. 2016-089 at 
8 Guideline 9d and Saunders and NZME Radio Ltd, above, at 
9 Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 62