O'Neill and Radio New Zealand Ltd - 2019-086 (25 March 2020)
- Judge Bill Hastings (Chair)
- Paula Rose QSO
- Susie Staley MNZM
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand National
[This summary does not form part of the decision.]
The Authority has not upheld a complaint that an interview with Simon Bridges, National Party leader and Leader of the Opposition, was in breach of the accuracy, balance and fairness standards. The complainant submitted that the interviewer’s description of a tweet from National MP Chris Penk regarding the Abortion Legislation Bill as ‘fake news’, ‘misinformation’, and ‘wrong’ was inaccurate. The Authority found that this description amounted to comment and analysis, to which the accuracy standard does not apply. The Authority also found that the interview was balanced, as it was reasonable for the interviewer to take a position opposing that of Mr Bridges, and Mr Bridges was given ample opportunities to present his perspective on issues discussed. Given Mr Bridges’ position and experience in the media, and the reasonable expectations Mr Penk would have around treatment of his tweet in the media, the Authority also found that neither was treated unfairly.
Not Upheld: Accuracy, Balance, Fairness
 Opposition and National Party Leader Simon Bridges was interviewed by Susie Ferguson on Morning Report about the abortion law reform, and his support of the Abortion Legislation Bill (the Bill) at its first reading. The interview covered whether he thought there should be a referendum, his reasons for supporting the Bill, his concerns around the Bill and what ‘further safeguards’ he thought should be included in the Bill relating to the provision of abortion services for those more than 20 weeks pregnant.
 Ms Ferguson went on to ask Mr Bridges about whether he thought National should support the Bill, and since it was a conscience vote, whether he had a ‘sense of the numbers’. She challenged him about the spread of ‘misinformation’ by National Party MPs, specifically in relation to a tweet by Chris Penk, including referring to it as ‘fake news’:
SF: Are you going to be exerting any control over your MPs that are spreading misinformation about this?
SB: No, because the reality of these things is one person’s misinformation is another person’s fact, and -
SF: Well, just can I stop you there though - Chris Penk – no hang on – Chris Penk on the 4th of August tweeted and the tweet’s still up this morning, ‘Sure, we expected some changes but nothing so extreme (/cruel?) as liberalising abortion right up to birth.’ That’s not true, is it?
SB: Well, you are seeking to, on the basis of what is clearly an opinion, assert it as a fact that he’s putting forward. He’s making clear his opinion.
SF: That is exactly what I’m asking you about – it is his opinion, but it is wrong, it is not a fact.
 The interview was broadcast during Morning Report on 7 August 2019 on RNZ National. As part of our consideration of this complaint, we have listened to a recording of the broadcast and read the correspondence listed in the Appendix.
 Paul O’Neill submitted the broadcast breached the accuracy, balance and fairness standards of the Radio Code of Broadcasting Practice for the following reasons:
- The standard was breached by the interviewer ‘stating as fact that abortion until birth under the Bill was “fake news”’.
- Ms Ferguson repeatedly asserted that Chris Penk’s tweet was untrue.
- This ‘portrays an inaccurate interpretation of the Bill’ as Mr Penk’s tweet was correct ‘that abortion will be liberalised up until birth if the Bill is passed in its present form’.
- Ms Ferguson does not appear to understand the changes proposed by the Bill.
- The discussion was unbalanced as it ‘promulgated only the interviewer’s assertions’ that Chris Penk’s tweet was untrue.
- ‘The interviewer made no attempt to show balance as to reasons why the proposed legislation might not be appropriate as an alternative viewpoint.’ This can be contrasted with a later broadcast where the tweet was discussed and the interviewer ‘tempered’ the discussion by saying ‘to be fair to Chris Penk, I’m assuming what he’s getting at is that the tests after 20 weeks do seem to be reduced…’
- The interviewer appears to have a ‘fixed view’ favouring one side of the issue.
- By making misleading assertions of fact, the interview had ‘the propensity to mislead Mr Bridges into an incorrect assessment of the Abortion Legislation Bill’.
- It was unfair to seek comments from Mr Bridges based on ‘unbalanced and inaccurate statements and questions’.
- If there is a breach of balance and accuracy, this impacts on fairness as it requires the interviewee to ‘correct the inaccuracy and provide balance to the interview’.
- The interview is also unfair to Mr Penk by calling his tweet ‘misinformation’ when it is ‘a reasonable interpretation of the Bill’.
The broadcaster’s response
 RNZ did not uphold the complaint for the following reasons:
- The complaint suggests that ‘the interviewer stated that abortion until birth was “fake news”’, but the interview was actually referring to ‘a social media message from a backbench National MP’ expressing his view on the Bill.
- ‘It is a legitimate interviewing technique to challenge the person being interviewed with “devil’s advocacy” type questioning and that is what occurred on this occasion.’
- The interviewer and Mr Bridges agreed that Mr Penk’s tweet was his opinion. It was reasonable to use the term ‘fake news’ in reference to the tweet, which was ‘Mr Penk’s opinion being stated as a fact.’
- ‘A one-on-one interview does not amount to a “discussion” as opposed to a longer form documentary type of programme.’
- The interview was of relatively short duration, focussed specifically on the Bill, and was not ‘an examination of the wider ethical issues of abortion’ nor ‘a discussion about the status of the foetus.’
- Mr Bridges is ‘an able media performer’.
- He was ‘well able to put forward his point of view’.
- He was allowed to speak at length at times throughout the interview.
- ‘[R]egardless of the questions…he was able to put forward his views as to how the proposed legislation should be handled.’
- If Mr Bridges thought what the interviewer was saying was inaccurate, ‘he had ample opportunity’ to raise that in the interview (which he did not do).
The relevant standards
 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.1
 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 fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The purpose of this standard is to protect the dignity and reputation of those featured or referred to in broadcasts.2
 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. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.
 An interview with the Leader of the Opposition, about a Bill before Parliament, is in the public interest. Additionally, the Bill relates to a sensitive and divisive issue, abortion law reform. The media plays a vital role in encouraging open and informed discourse about such issues. This means that in order for us to interfere and find a breach of broadcasting standards, we would need to find a correspondingly high level of harm was caused, or potentially caused, by the broadcast.
 Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.3 Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’4 Programmes may be misleading by omission.5
 The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.6 Where statements of fact are at issue, the standard is concerned only with material inaccuracy. Technical or unimportant points unlikely to significantly affect the audience’s understanding of the programme as a whole are not material.7
 Mr O’Neill submitted that Ms Ferguson’s statements (that Mr Penk’s tweet is ‘not true’, ‘is wrong’, ‘not a fact’ and ‘fake news’) are inaccurate, as Mr Penk’s tweet was ‘a reasonable interpretation of the Bill.’
 Our first consideration is whether Ms Ferguson’s statements were analysis, comment or opinion rather than fact. A fact is verifiable: something that can be proved right or wrong.8 An opinion is someone’s view, which is contestable, and others may hold a different view.9 Whether something is a statement of fact or opinion depends on context and presentation. It is crucial how a reasonable viewer or listener would perceive it.10 Taking into account the following, we found that Ms Ferguson’s statements were comments she was making reflecting her analysis of the tweet:11
- The statements were not presented as a factual position.
- In the context of the overall broadcast, it was clear that Ms Ferguson was putting forward a position.
- Her comments were value judgements on which she was relying to challenge Mr Bridges about how he intended to address the spread of misinformation by his party MPs.
- The statements were made as part of a ‘devil’s advocate’ style of questioning, in which an interviewer takes a position on an issue in order to engage the interviewee.
 Therefore, we do not uphold the complaint under the accuracy standard.
 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 focus of the interview was Mr Bridges’ views on the proposed Bill as it was passing through Parliament. We have consistently found that abortion and related amendments to legislation amount to a controversial issue of public importance.15 In this case we consider that the views of the opposition party in Parliament are also of public interest.
 We also consider that it was ‘discussed’ within the programme. RNZ argued that ‘one-on-one interviews do not amount to a discussion’. This is not correct. We have previously found that brief, straightforward news reports may not amount to a discussion,16 but one-on-one interviews are frequently considered to be discussions.17 This broadcast was almost 6.30 minutes in length, covered a number of aspects relating to the Bill (such as whether there should be a referendum, why Mr Bridges now supported the Bill, and how the National Party was approaching the Bill). Given that, we consider that it amounted to a discussion. It is also clear that Morning Report is a news and current affairs programme, so we find that the balance standard applies to this broadcast.
 The objective of the balance standard is to enable the audience to arrive at an informed and reasoned opinion (which is important to the operation of an open and democratic society).18 The next question is whether the broadcaster made reasonable efforts in the circumstances to allow significant viewpoints to be presented. Taking the following contextual factors into account, we are satisfied that the requirements of the balance standard were met in this case:19
- Mr Bridges was being interviewed to present his perspective on the proposed legislation.
- The discussion of the tweet was one aspect of a larger discussion regarding the Bill.
- Interviewers often take positions in opposition to interviewees in order to challenge the interviewee on a subject, particularly in political interviews.20 The balance standard does not require interviewers to lay out every perspective on an issue. There was space within the interview for Mr Bridges to present views that were different to those put forward by Ms Ferguson.
- Ms Ferguson posed devil’s advocate-style questions to provide a countering perspective to that presented by Mr Bridges.
- Mr Bridges was given ample opportunities to put forward his views regarding the Bill and a number of aspects of its passage through Parliament. He spoke at length several times throughout the interview.
- Mr Bridges had opportunities to explain his understanding of the tweet:
SB: It’s an opinion, Susie, that tens, perhaps thousands of New Zealanders have and they are entitled to, and the reality is whilst I don’t want to make the debate for myself emotive, I have said to you, my clear view, which is that the test post twenty weeks at the moment is lighter, less strong than the legal position today, and it should be strengthened.
SF: What Chris is saying in that tweet Mr Bridges, what Chris is saying is fake news, and you’re just happy to let that go.
SB: The truth is that the test that is proposed by Mr Little post twenty weeks is one of appropriateness for an individual doctor. That is, I think, a lighter test than I, and clearly Chris Penk, think is desirable.
- There is ongoing media coverage regarding the Bill and listeners could reasonably be expected to be aware of views expressed in other coverage.21
 Therefore, we do not uphold the complaint under the balance standard.
 Turning now to the fairness standard, a consideration of what is fair depends on the nature of the programme and its context (including the public significance of the broadcast).22 The broadcast that is the subject of this complaint involved a public figure being interviewed and the views he expressed being challenged. 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.23
 The interviewing of politicians by journalists is an important feature of life in a democratic society and an important feature of the exercise of freedom of expression.
 We do not consider any aspect of the interview went beyond the level of robust scrutiny and political analysis that could reasonably be expected in an interview with a politician or that this resulted in Mr Bridges being treated or portrayed unfairly. We do not agree that Mr Bridges would have been misled by the questions put to him and do not consider that the broadcast would have caused any harm to him.
 We also do not consider that Mr Penk was treated unfairly in the interview. Mr Penk is a public figure who chose to engage on social media about a controversial issue in a way that is designed to provoke a response. Politicians can reasonably expect comments they make on social media to be the subject of and critiqued by news media.
 Accordingly, we do not uphold the complaint under the fairness standard.
For the above reasons the Authority does not uphold the complaints.
Signed for and on behalf of the Authority
Judge Bill Hastings
25 March 2020
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Chris Penk’s tweet – 5 August 2019
2 Paul O’Neill’s formal complaint – 7 August 2019
3 RNZ’s response to the complaint – 6 September 2019
4 Mr O’Neill’s referral to the Authority – 4 October 2019
5 RNZ’s further comments – 22 October 2019
6 Mr O’Neill’s final comments – 13 December 2019
7 RNZ’s confirmation of no further comments – 30 January 20
1 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
2 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
3 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
4 Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
5 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
6 As above
7 As above
8 Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 62
9 As above
10 As above
11 As above
12 Guideline 8a
13 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
14 As above
15 See for example Cotterall and Radio New Zealand Ltd, Decision No. 2019-072, Right to Life New Zealand and MediaWorks TV Ltd, Decision No. 2017-052 and Right to Life and Radio New Zealand Ltd, Decision No. 2017-007
16 See for example Neate and Radio New Zealand Ltd, Decision No. 2019-074
17 See for example Graf and Radio New Zealand Ltd, Decision No. 2019-071, Horowhenua District Council and MediaWorks Radio Ltd, Decision No. 2018-105 and Anderson and Radio New Zealand Ltd, Decision No. 2018-091
18 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
19 Guideline 8c
20 See Maasland and Radio New Zealand Ltd, Decision No. 2018-065 at 
21 See for example ‘Sweeping abortion law changes: Woman's right to choose until 20 weeks’ (NZ Herald, 5 August 2019); ‘New Government bill seeks to remove abortion from Crimes Act, treat it as a health issue’ (1 News, 5 August 2019); ‘Abortion bill: What's actually changing and when’ (Stuff, 8 August 2019); ‘Live: Abortion law passes first vote in Parliament 94-23’ (NZ Herald, 8 August 2019); ‘Large majority of MPs pass first reading of proposed abortion law reforms’ (Newshub, 8 August 2019); ‘Abortion law reform under debate in Parliament today’ (RNZ, 8 August 2019)
22 Guideline 11a
23 See for example Holland and MediaWorks TV Ltd, Decision No. 2017-048