Ong and Radio New Zealand Ltd - 2021-086 (13 October 2021)
- Susie Staley MNZM (Chair)
- Paula Rose QSO
- Susie Staley MNZM
- Su-Wuen Ong
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand
[This summary does not form part of the decision.]
An item on RNZ’s Midday Report covering reports of violence against protesters at Kennedy Point Marina included interviews with a protester, and the developer of the site. The Authority has not upheld a complaint the item breached the balance and fairness standards. The Authority found the item presented a reasonable range of perspectives and developer Kitt Littlejohn was given a fair and reasonable opportunity to present his point of view. Given the level of public interest in the item, Mr Littlejohn, in his position, could reasonably expect the media’s scrutiny and the programme was unlikely to leave listeners with an unduly negative impression of him.
Not Upheld: Balance, Fairness
 On 7 July 2021, an item on Midday Report covered the protests at Kennedy Point Marina. The introduction follows:
Mani Dunlop … Violence is escalating as work progresses on the new Kennedy Point Marina at Waiheke Island, with footage emerging of a protester holding onto buoys in the water and being hit repeatedly with a boat. The police say they are aware of the incident and are investigating. Protesters are trying to stop all works on the new Kennedy Point Marina saying the approval of the development contradicts Te Tiriti o Waitangi and they never agreed to the works. They want Auckland Council and the Government to intervene. Ngāti Pāoa Trust Board plans to go to court tomorrow to get a stop-work injunction for breaching resource consent. That's to do with Kurura and the breakwater. I spoke to Emily Maia Weiss who is out on the moana at Pūtiki Bay about what happened and about the protest action underway.
 Ms Dunlop proceeded to interview Ms Weiss about the situation. Some questions posed were:
- ‘Has the protest group gone to the police with what happened…?’
- ‘In terms of what happens now, are you trying to bolster protester numbers there?’
- ‘And have you had any communication with the developers other than obviously on the frontline there?’
 Ms Dunlop also interviewed the developer, Kitt Littlejohn. The interview began as follows:
Ms Dunlop …that was Emily Maia Weiss out in Pūtiki Bay. And you may have heard the construction workers and drilling in the background there. We are joined now by the developer, Kitt Littlejohn. Tēna koe, thanks for joining us. Now what did you think of the video of the woman in the water being rammed by the boat at Pūtiki?
Kitt Littlejohn Yeah, well, look, I've seen the footage, and I'll be honest, I'm deeply disturbed by the escalating tensions on site. It's not what we expected at all. I mean, our priority remains the safety of everyone on the site, the construction workers, the protesters and the public. And we're working closely with the police to do the best we can for everyone.
 Some of the questions Ms Dunlop posed Mr Littlejohn were:
- ‘And what is the company doing as a result of that violence seen in the video?’
- ‘You call it a dangerous construction zone. It seems as if they were being more dangerous in terms of how they were conducting themselves with that boat.’
- ‘…but it’s the police’s role in order to stop that?’
- ‘Were the police called by those construction staff?’
- ‘Has there been any attempt to hold a meeting to have further discussions, constructive discussions that don't involve this sort of violence?’
- ‘In terms of the staff in that video, are they still working?’
- ‘So do you support the staff and the actions in terms of trying to keep protesters out of the area and the way in which they did?’
- 'Are you worried that someone is going to get seriously hurt if works do not stop here?’
 Su-Wuen Ong complained the broadcast breached the balance and fairness standard for the following reasons:
- The interviewer ‘did not appear to be balanced or even-handed…with Mr Littlejohn she appeared challenging throughout the entire interview and asking probing questions. In the other case she gave Ms Weiss the opportunity to express her views without any form of challenge or probing.’
- ‘It is the contrast between the probing questioning of one party and the total lack of it with the other party that is the basis of my complaint…as a journalist the interviewer should be scrupulously even-handed. Or declare at the start that she is going to side with one party…’
The broadcaster’s response
 RNZ did not uphold Mr Ong’s complaint for the following reasons:
- ‘Mani Dunlop asked Emily Maia Weiss a range of questions…mainly to elicit information about what happened at the scene of the altercation in order to build a picture of it in the minds of the audience.’
- Mr Littlejohn was then asked a range of questions to allow him to respond to the situation. ‘He was free to correct or to question Ms Weiss’ account of events and to disagree with the interviewer, or to dispute or refuse to answer any of the questions put to him…he did none of these things.’
- ‘Mr Littlejohn is an able media performer, was well able to respond to all the questions put to him and was not fazed by any of the issues raised. He appeared quite open in his responses and was readily forthcoming with information sought by the programme host.’
 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.1 The balance standard ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.2
 The fairness standard3 requires broadcasters to deal fairly with any person or organisation taking part, or referred to in any broadcast. The standard protects the dignity and reputation of those featured in programmes.4 It ensures individuals and organisations are dealt with justly and fairly and protected from unwarranted damage.
 We have listened to the broadcast and read the correspondence listed in the Appendix.
 As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.5
 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’.6
 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’. A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.7
 The issue discussed in this broadcast (the Kennedy Point Marina dispute and the alleged violence towards protesters) carries a high level of public interest and is clearly controversial. We therefore agree the balance standard applies.
 In considering whether a reasonable range of perspectives was presented, the following factors were taken into account:8
- The item was a short news report covering the protests and did not purport to be an in-depth examination of the issues.
- The introduction clearly signalled the report was focused on the alleged violence on the marina.
- The relevant opposing views were presented in the interviews: Ms Weiss offering her perspective as protester, and Mr Littlejohn, as the developer.
- The protests surrounding Kennedy Point Marina have been an ongoing issue widely covered by the media and listeners can reasonably be expected to be aware of the differing views on the issue.9
 Given the above factors, in particular the considerable opportunity afforded Mr Littlejohn to express the developer’s perspective, we do not consider the balance standard was breached.
 The complainant argued the reporter changed her interviewing approach in her interview of Mr Littlejohn, resulting in him being treated unfairly in the broadcast.
 A change in interview approach or not being ‘scrupulously even-handed’10 with interviewees does not, in itself, indicate a breach of broadcasting standards. Interview strategies, and what questions are asked in an interview are matters of editorial discretion only – provided the requirements of the fairness standard are otherwise met (eg the relevant individual is given a fair and reasonable opportunity to comment for the programme). The factors we have taken into consideration under the fairness standard are as follows:11
- The broadcast covered an issue of high public interest and listeners were entitled to be informed about the situation.
- There were no critical comments aimed at Mr Littlejohn personally. All the questions were focused on eliciting further information surrounding the reported event, and what the company has done in response.12
- Mr Littlejohn was given a reasonable opportunity to answer the questions posed, and to present his viewpoint.
- Given Mr Littlejohn’s position as the developer, and the public interest around the incident, Mr Littlejohn could reasonably expect the media’s scrutiny (and appeared to handle it well).
- The interview was unlikely to leave listeners with an unduly negative impression of Mr Littlejohn.
 We therefore do not consider Mr Littlejohn was treated unfairly in the broadcast.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
13 October 2021
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Su-Wuen Ong’s original complaint to RNZ – 7 July 2021
2 RNZ’s response to Mr Ong – 22 July 2021
3 Mr Ong’s referral to the Authority – 2 August 2021
4 RNZ’s final comments – 25 August 2021
1 Standard 8 of the Radio Code of Broadcasting Practice
2 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
3 Standard 11 of the Radio Code of Broadcasting Practice
4 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
5 Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
6 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
7 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
8 Guideline 8c
9 “Protesters’ campsite at Pūtiki Bay taken down by police” RNZ (online ed, 21 August 2021), Josephine Franks “Police spent $36k arresting four Waiheke protectors, breaking up marina occupation” Stuff (online ed, 23 August 2021), “Waiheke Island protest: Police arrive en masse at marina site” NZ Herald (online ed, 15 July 2021), Charlotte Manning “The occupation at Pūtiki Bay, Waiheke – explained” The Spinoff (online ed, 23 June 2021), “Waiheke marina: Opposition differences ‘highlights misjudgement in vision’” RNZ (online ed, 22 July 2021)
10 The complainant’s original complaint to RNZ, 7 July 2021
11 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
12 RNZ’s response to Mr Ong, 22 July 2021