McCaughan and Discovery NZ Ltd - 2020-166 (25 May 2021)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- Dermott McCaughan
BroadcasterDiscovery NZ Ltd
[This summary does not form part of the decision.]
The Authority has not upheld a complaint about a news item reporting on the Rt Hon Winston Peters’ likelihood of not returning to Parliament after the General Election. The item did not discuss a controversial issue, so the balance standard did not apply. It was not unfair to Mr Peters, given his position as an elected public figure and experience dealing with the media. Coverage of political issues close to Election Day is not in itself a breach of broadcasting standards.
Not Upheld: Balance, Fairness
 An item on Newshub Live at 6pm broadcast on 14 October 2020, three days before Election Day, reported the Rt Hon Winston Peters’ staff were ‘predicting his political demise on Saturday [Election Day]’:
It is over. The writing is on the wall. These are the words of some of Winston Peters’ own team predicting the end of his four decade political career. Newshub can reveal a farewell party was held yesterday for ministerial staffers expecting to lose their jobs on Saturday, preparing for Peters to be voted out of Parliament. We understand his Chief of Staff is even working on a farewell speech for Peters to deliver … when Parliament resumes. It would mark the end of what is arguably the most remarkable career in New Zealand political history. The man himself, of course, says he's not going anywhere.
 The item then reflected on Mr Peters’ long career in Parliament and asked politicians from other political parties for their views on whether he was likely to return after the election.
 Mr McCaughan complained the item breached the fairness and balance standards:
[The] report on NZ First informed us of actions from their office staff making decisions related to the conclusion of the election. The election process is still on-going and TV3 gave an imbalanced report before the conclusion of the election. The news media have a responsibility to be impartial during the electoral process.
The broadcaster’s response
 The broadcaster did not uphold Mr McCaughan’s complaint, responding:
- ‘Viewers reasonably expect to receive commentary and analysis from political reporters and political correspondents’.1
- ‘The focus of the Broadcast was on Mr Peters and whether or not he would return to Parliament after the election. Mr Peters was given the opportunity to comment on this and he did so. Other viewpoints on this issue were also presented, [notably] from other political party leaders.’
- ‘Throughout the election period of interest, sufficient viewpoints were presented and viewers had the opportunity to access a range of views.’
- The reporting did not go beyond ‘the level of robust scrutiny and political analysis that could be reasonably expected in an election campaign’.
- ‘Mr Peters was given the opportunity to comment and willingly did so’.
- ‘…the Broadcast provided viewers with a respectful retelling of Mr Peters' esteemed political career over the previous four decades’.
 The balance standard2 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. This standard ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.3
 The fairness standard4 states broadcasters should deal fairly with any person or organisation taking part or referred to in a programme, so the audience is not left with an unduly negative impression of them.5 A consideration of what is fair will depend on the nature of the programme, the context (including the level of public interest) and the nature of the individual.6 An individual’s status as a public figure who is familiar with the media is a relevant factor to fairness.7 It is also relevant to consider whether any critical comments were aimed at the participant in their professional or personal lives.8
 In New Zealand we value the right to freedom of expression. Accordingly, when we consider a complaint that a broadcast has breached broadcasting standards, we weigh the broadcaster’s right to freedom of expression against the level of actual or potential harm caused.
 In considering this complaint, we have viewed a recording of the broadcast and read the correspondence listed in the Appendix.
 The Authority’s Election Complaints Fast-Track Process contemplates fast-tracking of complaints about ‘programmes that relate to election or referenda matters that may influence a vote’.9 As this complaint was only referred to us after the 2020 General Election, it was not eligible for fast-tracking and has been dealt with under our standard procedures.
 The complainant seems to be concerned the news item would unfairly impact the outcome of the election, and it should not have been broadcast until after polling had closed. However, coverage of political issues close to Election Day is not in itself a breach of broadcasting standards. We note at this time there was a wealth of media coverage about the election generally, and specifically Mr Peters’ potential performance.10
 The broadcast in this case carried a high value and level of public interest. The right to political speech is significant in a democratic society and particularly in the months preceding a general election, when audiences have a heightened interest in political party leadership and in robust scrutiny of those who may be seeking their vote.11 This means we would need to find a correspondingly high level of harm to conclude the interview breached the standards, and to justify limiting freedom of expression.
 Considering the level of public interest, Mr Peters’ experience, and general expectations as to how politicians will be treated by the media, we have not found harm resulting in a breach of the fairness or balance standards or justifying regulatory intervention. We expand on our reasons below.
 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’.12
 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’.13 A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.14
 The news item was speculating about the likelihood of Mr Peters’ return to Parliament after the election, and whether the recent actions of his staff signalled they were not expecting him to return. It then discussed Mr Peters’ lengthy political career and included soundbites from Mr Peters and other politicians speculating (or refusing to speculate) on the likelihood of his return to Parliament.
 While the make-up of Parliament following an election is of significant concern to the New Zealand public, an item discussing the potential end to Mr Peters’ political career and reflecting on his time in Parliament is not discussing a controversial issue as envisaged by the standard. Therefore the balance standard does not apply to this item and we do not uphold this aspect of the complaint.
 In any event, we note:
- balance was achieved through the interview with Mr Peters, who provided his perspective on the issue
- viewers could reasonably be expected to be aware of views expressed on this topic in other election coverage throughout the period of interest.15
 It is well established that the threshold for finding a breach of the fairness standard in relation to public figures and politicians (who are familiar with dealing with the media) is higher than for a layperson or someone unfamiliar with the media.16 The level of public interest in the broadcast material is also a relevant factor.
 On viewing the item, we consider it did not result in any unfairness to Mr Peters. The item was typical of political reportage, speculating on the outcome of the impending election. Mr Peters was given the opportunity to respond to questions as to what he expected the outcome of the election to be and whether he felt supported by his staff.
 Overall, there was no potential harm which could outweigh the value of robust political discourse and the vital role of media in holding to account those in positions of power. This enables the public to be informed and engaged, which is critical to a free and democratic society, particularly leading up to an election.
 Accordingly, we do not uphold the complaint under the fairness standard.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
25 May 2021
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Dermott McCaughan’s formal complaint – 15 October 2020
2 MediaWorks’ response to the complaint – 10 November 2020
3 Mr McCaughan’s referral to the Authority – 27 November 2020
4 Discovery NZ’s confirmation of no further comment – 2 December 2020
1 See Woods and MediaWorks TV Ltd, Decision No. 2015-062
2 Standard 8 of the Free-to-Air Television Code of Broadcasting Practice
3 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
4 Standard 11 of the Free-to-Air Television Code of Broadcasting Practice
5 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
6 Guideline 11a and Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
7 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
8 As above
9 Broadcasting Standards Authority “Fast track complaints process for election related content” <www.bsa.govt.nz>
10 See for example: Damian Grant “Winston Peters' political story is coming to an end” Stuff (online ed, Wellington, 4 October 2020); Henry Cooke “Election 2020: Winston Peters heads back to where it all began, for what could be the end” Stuff (online ed, Wellington, 13 October 2020); Jo Moir “Winston Peters returns to Tauranga in final campaign sprint” RNZ (online ed, Wellington, 14 October 2020); Danyl Mclauchlan “More than 40 years after he arrived in parliament, Winston Peters is facing, barring a miracle, the end of the line.” Interest NZ (online ed, Wellington, 11 October 2020)
11 See the New Zealand Bill of Rights Act 1990, ss 5 and 14, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
12 Guideline 8a
13 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
14 As above
15 Guideline 8c and see, for example, coverage referred to in footnote 11; “Winston Peters remains upbeat about election chances” RNZ (online ed, Wellington, 14 October 2020); and Brittany Keogh “Election 2020: NZ First leader Winston Peters confident of 'surge' of votes” Stuff (online ed, Wellington, 14 October 2020)
16 See, for example, Hagger and MediaWorks TV Ltd, Decision No. 2020-032; Marra and MediaWorks Radio Ltd, Decision No. 2019-023; Anderson and Radio New Zealand Ltd, Decision No. 2018-091; and Cape and MediaWorks TV Ltd, Decision No. 2018-018