McCaughan and Television New Zealand Ltd - 2017-083 (18 December 2017)
- Peter Radich (Chair)
- Te Raumawhitu Kupenga
- Paula Rose QSO
- Dermott McCaughan
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
During an item on Seven Sharp, broadcast on 23 August 2017 during the election period, the presenters discussed TVNZ’s ‘Vote Compass’, a tool available to assist the New Zealand public to make voting decisions. In response to comments by presenter Toni Street about the usefulness of the tool, presenter Mike Hosking said, ‘…so is the fact that you can’t vote for the Māori Party because you’re not enrolled in the Māori electorate, so what are you going to do now? I’m joking.’ The following evening, Mr Hosking attempted to clarify his comment by saying, ‘Now, the fact that anyone can vote for [the Māori Party] as a list party I automatically assumed we all knew given we have been doing this for 20 years…’ The Authority upheld a complaint that Mr Hosking’s comments were inaccurate, finding that Mr Hosking’s statement about who was eligible to vote for the Māori Party was a material point of fact that was inaccurate and misleading. Further, his comments the following evening were confusing and insufficient to correct the inaccurate information for viewers. The Authority acknowledged the high value of political expression during an election period, but found that the potential harm in this case – providing inaccurate information which had the potential to influence voters, despite the alleged clarification – outweighed the broadcaster’s right to freedom of expression.
Upheld: Accuracy; Order: section 13(1)(a) broadcast statement.
 During an item on Seven Sharp, broadcast on 23 August 2017 during the election period, the presenters discussed TVNZ’s ‘Vote Compass’, a tool available to assist the New Zealand public to make voting decisions. In response to comments by presenter Toni Street about the usefulness of the tool, presenter Mike Hosking said, ‘…so is the fact that you can’t vote for the Māori Party because you’re not enrolled in the Māori electorate, so what are you going to do now? I’m joking.’ On Seven Sharp the following evening, 24 August 2017, Mr Hosking attempted to clarify his comment by saying, ‘Now, the fact that anyone can vote for [the Māori Party] as a list party I automatically assumed we all knew given we have been doing this for 20 years…’
 Dermott McCaughan complained that Mr Hosking’s statement on 23 August 2017 was inaccurate and in the second broadcast, Mr Hosking did not acknowledge he had made an inaccurate statement and did not apologise for presenting the facts incorrectly.
 Mr McCaughan lodged two separate complaints with TVNZ about the two broadcasts, and the broadcaster issued two decisions.
 The issue raised in Mr McCaughan’s complaint to the Authority is whether the broadcasts breached the accuracy standard of the Free-to-Air Television Code of Broadcasting Practice.
 The items were broadcast on 23 and 24 August 2017 on TVNZ 1. The members of the Authority have viewed recordings of the broadcasts complained about and have read the correspondence listed in the Appendix.
 During the 23 August 2017 broadcast of Seven Sharp, the presenters discussed the upcoming General Election, including New Zealanders’ discussion of the election on social media and TVNZ’s Vote Compass. Ms Street talked about the usefulness of Vote Compass and noted that many people she had spoken to had received results from the tool which were different to who they had previously thought they would vote for. She said that using Vote Compass had clarified for her who she should vote for.
 In response, Mr Hosking said:
…so is the fact that you can’t vote for the Māori Party because you’re not enrolled in the Māori electorate, so what are you going to do now? I’m joking.
 During the 24 August 2017 broadcast the following evening, Mr Hosking referred to his comments the previous night and said:
Now, small clarification for you. Now last night in a throwaway line I appear to have confused the Māori Party around the rules of voting and MMP. Now what I was suggesting, what I was meaning, was that the Māori Party, as their representation stands, is an electorate party. In other words they are only in Parliament because they won an electorate seat. Therefore what I said in referring to voting for them, was to vote for them in a Māori electorate you had to be on the Māori roll, which is true.
Now, the fact that anyone can vote for them as a list party I automatically assumed we all knew given we have been doing this for 20 years for goodness’ sake and it went without saying. So hopefully that clears all of that up.
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 parties’ submissions
 Mr McCaughan submitted that Mr Hosking’s comment, that those on the ‘non-Māori roll could not vote for the Māori Party in the general election’, was inaccurate, and that his clarification of this statement did not contain an apology or admission of the inaccuracy.
 TVNZ submitted that:
- Mr Hosking’s comment would not be seen as authoritative to viewers in the context of the conversation.
- Mr Hosking was joking with Ms Street about a possible recommendation that the Vote Compass made for her. His comment was followed by him saying, ‘I’m joking’, providing further context for viewers about the statement being a joke.
- While TVNZ accepted that what was ‘jokingly said’ required ‘clarification’, it did not agree that it was a material inaccuracy in the context of the conversation. It was unlikely to significantly affect audiences’ understanding of the programme as a whole.
- In the 24 August 2017 broadcast, Mr Hosking clarified that anyone can vote for the Māori Party as a list party, which was the central point. Such a statement was consistent with the requirement for clarification.
 The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. We may only interfere and uphold complaints where the resulting limitation on the right to freedom of expression is reasonable and justified.1 Our task is to weigh the value of the programme and the importance of freedom of expression, against the level of actual or potential harm that may be caused by the broadcast. We acknowledge the high value and public interest in political speech during the election period, and the importance of ensuring audiences are informed about election matters. In this case, however, Mr McCaughan has complained that this broadcast caused harm by misleading audiences as to their right to vote for the Māori Party.
Did the statement amount to a material point of fact?
 As we have noted above, the accuracy standard applies only to material points of fact in news, current affairs and factual programming. The Authority must therefore first determine whether Mr Hosking’s comment during the 23 August 2017 item, ‘…so is the fact that you can’t vote for the Māori Party because you’re not enrolled in the Māori electorate’, amounted to a material point of fact, or whether the comment could be distinguished as analysis, comment or opinion, rather than a statement of fact.2
 Guidance to distinguishing fact from analysis, comment or opinion states that a fact is verifiable: it is something that can be proved right or wrong, while an opinion is someone’s view: it is contestable, and others may hold a different view.3 The following factors are relevant to determining whether a statement is fact or opinion:4
- the language used in the statement
- the language used in the rest of the item (there could be a statement of fact within an opinion piece or surrounded by opinions)
- the type of programme and the role or reputation of the person speaking
- the subject matter
- whether evidence or proof is provided
- whether the statement is attributed to someone.
 Having regard to these factors, we have reached the view that Mr Hosking’s comment was presented as fact. We recognise that, as a presenter, Mr Hosking’s style and tendency to offer his opinions on a broad range of topics is well-known to viewers. However, in this case, Mr Hosking’s comment in effect asserted that only those enrolled in a Māori electorate were able to vote for the Māori Party. This was a statement of fact capable of verification. We also consider it was material in the context of the discussion about Vote Compass and the upcoming election, as it had the potential to influence viewers’ voting decisions.
 We do not consider that TVNZ’s and Mr Hosking’s argument that this was a passing, ‘throwaway line’ or joke changed the nature of the statement as a factual assertion. Mr Hosking’s language (‘the fact that’) implied that this was an authoritative statement and we do not consider it was clear from the 23 August broadcast what Mr Hosking’s statement ‘I’m joking’, referred to. We do not consider this, or Ms Street’s reaction, were sufficient to correct the inaccuracy or to reflect to viewers that Mr Hosking’s comment was not factual or meant to be taken seriously. This was particularly so in the context of an item that was seeking to promote the utility for voters of TVNZ’s Vote Compass election tool.
Was the statement inaccurate or misleading?
 These items attracted significant media attention and in its submissions, and in surrounding media at the time of the broadcast, TVNZ accepted that the comment made by Mr Hosking during the 23 August item was inaccurate and required clarification.5 We agree with that assessment.
 There are seven Māori electorates in New Zealand, and any person on the Māori electoral roll can vote for an MP in a Māori electorate in the General Election.6 However, any person enrolled to vote in the 2017 election could cast a party vote for the Māori Party, regardless of which electoral roll they were on. Guidance provided by the Electoral Commission regarding enrolling and voting as a New Zealand Māori states that:7
The type of electoral roll you are on makes no difference to who you can vote for with your Party Vote. Every voter, regardless of which electoral roll they are on or where they live in the country, has the same list of political parties to choose from when using their Party Vote.
 Further, in the 2017 General Election, the Māori Party had a total of 24 electoral candidates, with 18 candidates representing general electorates and 6 representing Māori electorates.8 Voters who were not enrolled on the Māori roll could therefore cast a vote for Māori Party candidates in their general electorates, as well as casting a party vote for the Māori Party.
 We therefore find that Mr Hosking’s comment was factually inaccurate and was likely to mislead viewers about whether they could vote for the Māori Party.
Did Mr Hosking’s comments the following evening correct the inaccuracy?
 The second issue for the Authority is whether the clarification provided on 24 August 2017 the next evening adequately addressed the misinformation in a way that made it clear to viewers the correct position regarding their ability to vote for the Māori Party.
 TVNZ have argued that Mr Hosking’s statement below was sufficient to correct the assertion that only those enrolled in a Māori electorate could vote for the Māori Party:
Now, the fact that anyone can vote for them as a list party I automatically assumed we all knew given we have been doing this for 20 years for goodness’ sake and it went without saying. So hopefully that clears all of that up.
 We consider that the clarification or explanation provided was flippant and too general to cure the inaccurate statement made the previous evening. Given the high public importance and the potential to influence voters, in circumstances where TVNZ accepted the comments were inaccurate, Mr Hosking should have made a clear, formal statement correcting his earlier inaccurate remark. In order to clarify his previous comments, in our view, it was necessary for Mr Hosking to provide a clear explanation of the Māori roll, Māori seats and the rights of all voters to vote for the Māori Party when casting their party vote. We consider Mr Hosking’s clarification was dismissive, in that he did not accept his statement was incorrect, instead suggesting it was the Māori Party who got ‘confused’, and voters should have known better than to be misled.
 Additionally, Mr Hosking’s statement, ‘…the Māori Party as their representation stands is an electorate party. In other words they are only in Parliament because they won an electorate seat’ was confusing and arguably also inaccurate. In the 2014 General Election, Te Ururoa Flavell won the Waiariki electorate seat (a Māori electorate). However, as a result of the party vote (1.32%), Marama Fox also held a second seat as a list MP for the Māori Party.9 (We note that if Mr Flavell had not won his electorate, however, the Māori Party would not have been eligible for Party List seats as it did not win at least 5% of the total party vote.)10 Mr Hosking’s clarification, in our view, had the potential to further confuse voters and was not specific or clear enough to rectify the potential harm caused by the previous evening’s broadcast.
 In light of the importance of free, frank and robust political speech during the election period, we are cautious to interfere unless a relatively high threshold is reached which justifies placing a limit on that speech. After careful consideration, however, we have found that the potential harm caused by this broadcast, in leaving viewers misinformed about their ability to vote for the Māori Party, outweighed the broadcaster’s right to freedom of expression. We consider that Mr Hosking’s statement during the 23 August 2017 broadcast was inaccurate and misleading, and that the clarification subsequently provided was confusing and insufficient to correct the inaccuracy. This was an important issue, particularly during the election period, and had the potential to significantly affect voters’ understanding of the Māori roll and of New Zealand’s electoral system.
 We therefore uphold the complaint under Standard 9.
For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Seven Sharp on TVNZ 1 on 23 and 24 August 2017 breached Standard 9 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld aspects of this 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 the provisional decision
 The complainant accepted the provisional decision and found no errors or misunderstandings by the Authority.
 TVNZ submitted:
- The Authority’s finding that Mr Hosking’s comments were material to the item was inconsistent with McDonald and TVNZ.11 This item focused on trending election topics on Facebook and Toni Street’s personal experience with Vote Compass. It was not a serious discussion about how to vote, voting eligibility, or policies of political parties. Mr Hosking’s comments were therefore not material or relevant to the audience’s understanding of Vote Compass and were peripheral to the main issue.
- Mr Hosking’s comments could be distinguished as analysis, comment or opinion. When assessing his language, it is clear his comments were in the nature of teasing, and he finished by saying ‘I’m joking’ to indicate this.
- As such, Mr Hosking’s comments were not intended to be authoritative and many of the Authority’s decisions recognised audience expectations and knowledge of Mr Hosking and his presentation style as a determinative factor.12
- Mr Hosking reiterated that his comment was a ‘throwaway line’ in the 24 August broadcast, indicating it was not intended to be taken seriously.
- At paragraph  above, the Authority pointed to media stories about Mr Hosking’s remark as background to the breach. Media will often generate news stories about TVNZ personalities and broadcasts, but this does not of itself indicate a breach of standards.
Authority’s response to submissions on the provisional decision
 Provisional decisions are issued to parties to correct any errors of fact in the decision, or any misunderstandings by the Authority. In our view, TVNZ’s submissions are primarily a restatement of their submissions previously made in relation to the substance of the complaint. These submissions do not cause us to change the decision we have reached on the substance of the complaint.
 We consider that this case is distinguishable from McDonald, cited by TVNZ above, which concerned a report on the discovery of a supernova by a 10-year-old. During the item considered in McDonald, the presenter said that the supernova was ‘240 light years from Earth’, when it was in fact 240 million light years from Earth. The Authority did not uphold an accuracy complaint about this item, finding the complaint was trivial and vexatious, and that the distance of the supernova from Earth was peripheral to the story about the young girl who discovered the supernova.
 The items that are the subject of this complaint, however, related to the 2017 General Election and factors which may influence voter’s decisions, which are matters of significant public importance and high public interest. As we have said above in our analysis of the accuracy standard, we consider Mr Hosking’s comments were material to Ms Street’s discussion about Vote Compass, which is designed to help voters decide which party to vote for, and touched on matters of importance in the election period. In this context, an incorrect statement about whether members of the public could vote for the Māori Party clearly had the potential to impact on voters’ understanding of who they were eligible to vote for – a topic highly relevant to the discussion of Vote Compass and the election generally.
 Our decision, from paragraph  onwards, outlines our reasons for finding that the comments complained about amounted to material statements of fact that had the potential to mislead the audience on an important topic, and why the correction provided the following evening was inadequate. We have found that Mr Hosking’s presentation style (discussed at paragraph ), and his reference to earlier comments as a ‘throwaway line’, did not mean that these comments were incapable of being taken as fact, or of misleading viewers.
 Finally, the reference to surrounding media items at paragraph  illustrates the public interest in the issue, as well as highlighting TVNZ’s public acknowledgement that Mr Hosking’s comments were incorrect. These articles were not determinative in the Authority’s finding of a breach.
Submissions on orders
 Mr McCaughan submitted:
- TVNZ’s failure to correct the mistakes at the time was a serious error, particularly as the broadcasts were during the general election period.
- He raised the issue immediately after the broadcasts, which meant TVNZ should have addressed the situation rapidly and seriously, ‘rather than through an attempt at humour or… sarcasm in the second broadcast’. TVNZ should have presented the facts accurately and clearly.
- TVNZ should therefore make a public apology and pay costs at a level to be determined by the Authority.
 Given its comments above, TVNZ submitted that, in the circumstances, publishing of the Authority’s decision was sufficient penalty.
Authority’s decision on orders
 In determining whether orders are warranted, the factors to take into consideration are:13
- 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.
 In considering whether orders are warranted in this case, we note that programme hosts and presenters have an important and influential role, particularly during a democratic process such as an election. The incorrect statements made by Mr Hosking were presented at a critical time, when voters required accurate information to enable them to make informed voting decisions. In this case, the flippant apology provided did not reflect a genuine appreciation for the important role of media during this time.
 Further, we recognise that many viewers rely on the information provided by influential hosts and presenters, particularly during primetime news and current affairs programming, and it cannot be assumed that they will delve more deeply into the issues discussed in the event that the information provided is not correct. Here, the presenter in question had been nominated by the broadcaster to moderate the televised leader debates, which established him as informed on matters relating to the 2017 General Election. The media coverage surrounding this item and responses from those impacted (such as the Māori Party) do not absolve the broadcaster of its obligations under the accuracy standard to make reasonable efforts to ensure accuracy and to ensure viewers are not misled.
 In these circumstances, we consider it would be appropriate for the broadcaster to publicly acknowledge the breach of the accuracy standard in this case to its audience, by way of a broadcast statement on air. The statement should reflect the Authority’s finding that Mr Hosking’s comments were factually inaccurate and likely to mislead voters about their ability to vote for the Māori Party, and that the attempted correction broadcast the following evening was dismissive and too general to correct the misinformation.
 While the election period is now over, we consider there is still a high level of public interest in this issue, and we therefore consider the statement should be broadcast prior to the summer holiday break. Usually, a broadcast statement is required to be broadcast during the same timeslot and programme as the original broadcast. However, we understand that Seven Sharp has now ceased broadcasting for 2017. The statement should therefore be broadcast at 7pm at the conclusion of 1 News on a weekday evening between 19-21 December 2017, to reflect the original timeslot.
Under section 13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast a statement. The statement shall:
- be broadcast at 7pm at the conclusion of 1 News
- be broadcast on a date to be approved by the Authority, no later than Thursday 21 December 2017
- contain a comprehensive summary of the upheld aspects of the Authority’s decision
- be approved by the Authority prior to being broadcast.
The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above orders have been complied with.
Signed for and on behalf of the Authority
18 December 2017
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Dermott McCaughan’s formal complaints – 24 and 25 August 2017
2 TVNZ’s responses to the complaints – 21 and 22 September 2017
3 Mr McCaughan’s referral to the Authority – 13 October 2017
4 TVNZ’s confirmation of no further comment – 24 October 2017
5 Mr McCaughan’s submissions on the provisional decision and orders – 4 December 2017
6 TVNZ’s submissions on the provisional decision and orders – 6 December 2017
1 See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6.
2 Guideline 9a
3 Guidance: Accuracy – Distinguishing fact and analysis, comment or opinion, Broadcasting Standards in New Zealand Codebook, page 62
4 As above
5 See TVNZ: Mike Hosking comments about Maori Party 'inaccurate' (NZ Herald, 24 August 2017). For further media coverage, see: Mike Hosking says he 'confused' the Māori Party by saying only Māori could vote for them (Stuff.co.nz, 24 August 2017); Mike Hosking offers 'clarification' over his Māori Party voting comments on Seven Sharp (NZ Herald, 24 August 2017); Māori Party want sponsors to pull out of Seven Sharp after Mike Hosking's ‘rubbish’ comments (Stuff.co.nz, 25 August 2017); How accurate was Mike Hosking's clarification? (Stuff.co.nz, 25 August 2017); Call to boycott Seven Sharp sponsor over Hosking's comments (RNZ, 25 August 2017); TVNZ, not Hosking, owes NZ the biggest apology (Newsroom, 28 August 2017)
6 See: Enrol and Vote as a New Zealand Māori - English (Electoral Commission, last updated October 2014)
7 As above
8 Information about the candidates standing for each party by electorate is available on the Electoral Commission website under the Election Results page, see: 2017 General Election - Official Result - Electoral Candidate and Party Votes Results (choose an electorate and sort by Party Name to see the Party each candidate represents).
11 HC Wellington, CIV 2011-485-1836, 30 April 2012
13 Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58