Pearce and NZME Radio Ltd - 2020-109 (28 January 2021)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- Thomas Pearce
ProgrammeMike Hosking Breakfast
BroadcasterNew Zealand Media and Entertainment
[This summary does not form part of the decision.]
The Authority did not uphold an accuracy complaint about Mike Hosking’s comments on the COVID-19 testing regime during his ‘Mike’s Minute’ segment on Newstalk ZB. The complaint was that the segment was inaccurate and misleading, for example by suggesting the Prime Minister was encouraging COVID-19 testing to scare the public and as a political ploy. The Authority found the statements made by Mr Hosking were expressions of his own opinion and analysis to which the accuracy standard did not apply.
Not Upheld: Accuracy
 During his ‘Mike’s Minute’ segment on Newstalk ZB’s Mike Hosking Breakfast programme on 4 August 2020, Mr Hosking made the following comments about the Government’s COVID-19 testing regime at that time:
So she was at it again yesterday, ‘say yes to the test’. For God’s sake, yes to the test – highlighting a new testing regime. Why is the Prime Minister doing this? Because she wants you to worry. She wants you to remember the dark and troubled days of lockdown, the uncertainty of what would happen to us all as this previously unknown virus swept the world and towards our small nation. The fact we haven’t had community transmission for three months is unfortunately a poorly-timed outworking of having a successful lockdown but not tied to the election. ...‘We can’t be complacent’, she said. No, we can’t. But that applies to, I don’t know, crossing the road, eating too much fat, drinking too much alcohol – doesn’t mean we test ourselves for it, for the sake of it. It really is the most glaringly audacious ploy to have us believe that a virus that is in a handful of isolation hotels and dwellers really needs us lining up by the thousand to find out there isn’t an issue. …The fact the economy’s in tatters must not be focused on, because as we have heard – you will continue to hear – we are in the middle of a pandemic. The health freak-out worked for them then, the economic misery, not so much. But here’s the truth. The truth of today, not much. We are not in the middle of anything other than a recession, the likes of which we’ve never seen. We are not in a pandemic. We haven’t been for three months and counting. And even in its worst moments, of the 1,000 beds we’d set aside for the tidal wave of death and ventilators, we filled 22. They’ve had their health curtain call. We’ve applauded. But they’re now milking the standing [ovations] for naked political advantage.
 Thomas Pearce complained the broadcast breached the accuracy standard:
- The broadcast was ‘both factually inaccurate and, more importantly for this complaint, seems directly intended to mislead. He is encouraging people to forego COVID-19 tests and to disregard and indeed distrust public health advice… Mike claims incorrectly that, in order to make people scared, the Prime Minister is encouraging people to accept tests for COVID-19 if offered.’
- The description of the Prime Minister’s advice as a political ‘ploy’ was incorrect or misleading for two key reasons:
- ‘The advice comes from health officials including the Director-General of Health… Mike has presented this information as coming from the Prime Minister, who has simply reinforced and repeated the advice given to her by health officials.’
- ‘The reason for surveillance testing is well understood and well justified. It is because the virus can escape isolation, and that the best response given this fact is to try and identify any outbreaks as soon as possible. To this end the advice to the government from health officials is that they need to carry out roughly 4,000 tests each day.’
- ‘By presenting it as a political ploy, or by politicising this issue at all, Mike is presenting dangerous misinformation as fact. Nowhere in his piece does he explain or indicate this is simply an opinion of his.’
The broadcaster’s response
 NZME did not uphold Mr Pearce’s complaint. It said:
- ‘there is an established audience expectation that the Mike’s Minute segment is an opinion piece in which Mr Hosking gives his own, strongly often expressed views on his chosen topic.’
- While it accepts ‘this country is not in a pandemic’ and ‘we hardly filled any beds’ were statements of fact, they were true at the time of broadcast: ‘On 04 August, there were no new cases of COVID-19 reported by the Health Ministry, it had been 95 days since the last recorded case of COVID-19 within the community from an unknown source, and there was a total of 22 active cases’.
- Mr Hosking’s other comments in the broadcast are ‘distinguishable as analysis and opinion and accordingly this standard does not apply to them’.
- In response to the complainant’s allegations that Mr Hosking intended to mislead listeners:
The host gives his opinion on the reason behind this renewed focus on community testing. This was the host’s view and one shared by other commentators and we reject the claim that it was intended to mislead… The host did not say that the advice received by the Prime Minister is a ‘ploy’ used for political purposes. Rather he was voicing his opinion that the Prime Minister’s decision to focus in this particular press conference on the need for surveillance testing is open to question… It is reasonable for the host to question the government’s motives behind the government warning of inadequate testing levels within the community at precisely the time when political parties were preparing to launch their election campaigns.
 The accuracy standard1 protects the public from being significantly misinformed.2 It requires broadcasters to make reasonable efforts to ensure any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead. Expressions of comment, analysis or opinion are exempt from the requirement to be accurate.3
 We have listened to the broadcast and reviewed the correspondence listed in the Appendix.
 Our task is to weigh the right to freedom of expression against any potential harm caused by the broadcast. We may only intervene and uphold a complaint when the resulting limitation on the right to freedom of expression is reasonable and justified.
 We recognise the importance of media scrutiny, and the role of the media in holding the government to account, particularly during a crisis.4 For the reasons below, we did not identify any potential harm in the broadcast which would outweigh the broadcast’s public interest value or justify intervention limiting the broadcaster’s freedom of expression.
 We first considered whether the statements made in the ‘Mike’s Minute’ segment were statements of fact, or statements of analysis, comment or opinion. If they were analysis, comment or opinion, the accuracy standard does not apply.
 The key question is how a reasonable listener would likely perceive the statements.5 The following factors are relevant:6
- whether the statements are verifiable (can be proved right or wrong)
- the language used in the particular statement and in the rest of the item
- the nature of the programme, and the role and reputation of the person speaking
- the subject matter, with statements about notoriously controversial issues more likely to be opinion
- whether evidence or proof was provided to support the statements
- whether the statements were clearly attributed to anyone.
 We have considered these in relation to the statements concerning the Prime Minister’s motivations for encouraging COVID-19 testing and in relation to the segment as a whole. We have also considered whether or not Mr Hosking used or conflated data7 in order to bolster his views in a manner that risked leaving listeners misinformed, particularly in connection with the statement:
We are not in the middle of anything other than a recession, the likes of which we’ve never seen. We are not in a pandemic. We haven’t been for three months and counting. And even in its worst moments, of the 1,000 beds we’d set aside for the tidal wave of death and ventilators, we filled 22.
 Overall, we found it likely a reasonable listener would perceive the statements made in the segment to be Mr Hosking’s opinion and analysis, rather than statements of fact, taking into account:
- ‘Mike’s Minute’ segments are regular ‘opinion pieces’ where Mr Hosking provides his views, opinion and commentary about news and current affairs.
- Mr Hosking is known and expected to deliver robust views and critical commentary.8 There is an audience expectation Mr Hosking will discuss current events from a particular perspective and in a way that focuses significantly on his opinions and analysis.
- In this broadcast he signalled he would be delivering his opinion by opening with a speculative question, ‘why is the Prime Minister doing this?’
- The phrase ‘glaringly audacious ploy’ was hyperbole rather than a verifiable statement, and signalled speculation and opinion.
- While the delivery of the statement, ‘We are not in a pandemic’ was emphatic, it was open to interpretation (either in the international or domestic context) and immediately followed by Mr Hosking contextualising his reasons for that view, meaning it was unlikely to be taken as a fact:
- Taking the item as a whole and given the wide range of media coverage of the international situation, a reasonable listener was unlikely to interpret it as a statement of fact that, internationally, ‘we are not in a pandemic’.
- Interpreted in the New Zealand context, Mr Hosking clearly explained why he holds the view, with reference to the figures cited above in  and in the sense that, at the time of broadcast, there had been no community transmission for three months.
- While Mr Hosking occasionally used data to justify his views (including in the statement highlighted above), the segment was peppered with sweeping and hyperbolic statements. The remarks were not attributed to anyone in particular and the manner in which it was presented, including by accentuating particular words for dramatic effect, signalled these were his thoughts and analysis.
- The topics discussed are controversial, carry high public interest, and have been widely debated publicly.9
 On the basis we consider the statements to be distinguishable as commentary, opinion and analysis, the accuracy standard does not apply and we do not uphold the complaint. In any event, given the significant, ongoing media coverage concerning COVID-19, listeners had access to a wide range of material on the issues discussed, mitigating any risk of being misled by Mr Hosking’s comments in this broadcast.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
28 January 2021
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Thomas Pearce’s formal complaint – 4 August 2020
2 NZME‘s decision on the complaint – 1 September 2020
3 Mr Pearce’s referral to the Authority – 1 September 2020
4 NZME’s response to the referral – 16 September 2020
5 Mr Pearce’s final comments – 24 September 2020
1 Standard 9 of the Radio Code of Broadcasting Practice
2 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
3 As above
4 For example see Grieve and Television New Zealand Ltd, Decision No. 2020-041 at . See also Burne-Field and NZME Radio Ltd, Decision No. 2020-040 at 
5 As above
6 Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 64
7 See Wilson and NZME Radio Ltd, Decision No. 2019-067 at -; and Burne-Field and NZME Radio Ltd, Decision No. 2020-040 at -
8 Burne-Field and NZME Radio Ltd, Decision No. 2020-040 at 
9 See: Sam Sachdeva “Health experts urge end to political ‘scaremongering’ over COVID-19” (13 March 2020) <newsroom.co.nz>; Jason Walls “COVID-19 Coronavirus: Collins squares up against Ardern as the pair go back sparring in the House” The New Zealand Herald (online ed, 18 August 2020); Zane Small “Coronavirus: Jacinda Ardern hits back at Opposition over criticism of COVID-19 testing strategy” Newshub (online ed, 19 August 2020)