Tinsley and Radio New Zealand Ltd - 2020-067 (28 October 2020)
- Judge Bill Hastings (Chair)
- Paula Rose QSO
- Susie Staley MNZM
- Leigh Pearson
- Dave Tinsley
ProgrammeMorning Report and Mediawatch
Channel/StationRadio New Zealand Ltd
[This summary does not form part of the decision.]
The Authority has not upheld a complaint about three RNZ broadcasts regarding political commentator Matthew Hooton. Two items on 21 and 22 May 2020 comprised interviews with Mr Hooton about the National Party leadership contest at that time, following which an item on 24 May 2020 discussed the emergence of Mr Hooton’s conflict of interest in this regard. The complaint was the 21 and 22 May items failed to disclose the conflict and the 24 May item failed to address it adequately. The Authority did not consider the broadcasts breached the accuracy standard, noting Mr Hooton disclosed his friendship with Todd Muller (National Party) in the 21 May item and accepted he had ‘nailed his colours’ to the Muller mast in the 22 May item. The conflict of interest generated by his subsequent engagement by Todd Muller did not arise until after these broadcasts. The nature and disclosure of his conflict was then discussed at length in the 24 May item once the details had emerged. Regarding balance, the Authority was satisfied significant points of view were adequately presented. Overall, the Authority did not find actual or potential harm at a level that justified regulatory intervention or restricting freedom of expression.
Not Upheld: Accuracy, Balance, Fairness
 On 21 May (Morning Report) and 22 May (Morning Report), RNZ National broadcast items concerning the National Party leadership contest between then-leader the Hon Simon Bridges and senior member Todd Muller and others. The items included Kim Hill’s interviews with political commentator Matthew Hooton, who offered opinions about the leadership contest and about Mr Bridges and Mr Muller. In particular, the items included the following:
- MH: ‘Well, [Mr Bridges] is a friend, Todd Muller is a friend, I’ve stayed at both their houses over the years, they are perfectly nice people both of them…and the fact of the matter is, life is not fair. But, people get to say, the public is always right, the public gets to say look, we just don’t want this person…’ (Morning Report, 21 May 2020)
- KH: ‘Should we not be worrying about self-fulfilling prophesies here, I mean the polls are the polls, okay, but you’ve nailed your colours firmly to the mast, you’re a Muller man… So you are talking him up?’ (Morning Report, 22 May 2020)
 On 24 May 2020 (Mediawatch), the broadcast discussed the emergence of Mr Hooton’s conflict of interest in this regard, in light of Mr Muller engaging Mr Hooton’s services on the afternoon of 22 May 2020. The broadcast also included segments from an interview between Mediawatch’s Colin Peacock and RNZ’s head of news Richard Sutherland on this issue. In particular, it included the following:
- CP: ‘[O]n Thursday night Matthew Hooton said Nikki Kaye advised him that Todd Muller wanted him to come to Wellington the next morning, and he did. He was later asked to help Todd Muller on an unpaid basis through Friday afternoon, and at that point he said he advised RNZ and the Herald, ‘’I could no longer do my usual Nine to Noon and Business Herald slots, under these circumstances’’.’
- RS: ‘Look, it’s pretty clear to anyone who’s been listening to Mr Hooton on RNZ over the last few days that he was very much clearly a Todd Muller supporter. I don’t think that, given he didn’t have an official position with Muller’s office, I don’t think he probably needed to disclose it at that point…’
- CP: Yeah, but they wouldn’t have known at that point that he’d responded to a request from Todd Muller’s deputy on his behalf to actually fly to Wellington and meet up with them to do unpaid but unspecified work. That’s a pretty deep involvement isn’t it, that perhaps listeners should have heard about, because he’s not just an analyst at that point, he’s getting close to being a spokesperson?
- RS: Well, certainly I think it would’ve been useful perhaps if he had have made that more clear. But certainly I can’t speak for Mr Hooton on that, you’d need to ask that question of him.
 Dave Tinsley complained to RNZ that these broadcasts breached the accuracy, balance and fairness standards of the Radio Code of Broadcasting Practice. With regard to the 21 and 22 May broadcasts, he complained that Matthew Hooton was used ‘as a political commentator on Radio NZ without declaring that he has been working for Todd Muller’. He also considered Mr Sutherland did not satisfactorily explain the matter in his interview broadcast on 24 May, and ‘was downplaying the significance of the situation’.
 In his referral of the matter to the Authority, Mr Tinsley sought to add an additional broadcast on 19 May 2020 for consideration, as part of his complaint. Pursuant to section 8(1B) of the Broadcasting Act 1989, we are only able to consider his complaint in respect of the matters raised in the original complaint to the broadcaster, which did not identify the broadcast of 19 May 2020. Therefore, our decision is limited to considering the broadcasts on 21, 22 and 24 May 2020.
The broadcaster’s response
 RNZ declined to formally consider Mr Tinsley’s complaint on the basis he did not sufficiently identify the broadcasts. However, it is the duty of every broadcaster to receive and consider formal complaints about any programme broadcast by it where the complaint constitutes, in respect of that programme, an allegation that the broadcaster has failed to comply with programme standards.1 The first consideration of a complaint should be prompt and without undue formality.2 Where a complainant has described the broadcast to the extent that the broadcaster can reasonably identify it, as is the case in respect of Mr Tinsley’s complaint, the broadcaster should proceed to consider it. Declining to formally consider such complaints renders the complaints process more difficult for the complainant, the Authority and ultimately RNZ itself.
 RNZ nevertheless indicated that, had Mr Tinsley sufficiently identified the broadcasts, it would not have upheld his complaint for the following reasons:
- Mr Hooton admitted on air on the Friday morning (22 May) he had ‘nailed his colours’ to the Muller mast.
- It was clear to listeners exactly what Mr Hooton’s position was and they would have understood where his comments were coming from.
- Mr Hooton responded to queries from the Mediawatch programme with a statement of how events unfolded in the latter part of the week.
 Responding to Mr Tinsley’s referral of the complaint to the Authority, RNZ further submitted:
- ‘It is clear in [Mr Hooton’s] statement that it was not until Thursday night [21 May] that Mr Hooton was approached by the National party asking for him to go to Wellington the next day. It was not until the Friday [22 May] that he was asked to work on an unpaid basis that afternoon to assist the National party.’
- ‘If Mr Tinsley is now challenging the veracity of Mr Hooton's statement… [or]…questioning the veracity of Mr Hooton's recall of these events, then that is another matter which cannot be resolved by the formal complaints process.’
- ‘It was very clear in that interview [of 21 May] with Mr Hooton that he openly declared Mr Muller as a friend, and it was obvious from his other comments that he was supportive of his bid for the National party leadership.’
- ‘In that interview [of 22 May]…it would have been clear to the audience…that Mr Hooton was a supporter if not a strong supporter of Mr Muller in his candidacy for the leadership of the National party.’
The nominated 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 receiving misinformation and thereby being misled.
 In our view this is the standard most relevant to the complainant’s concern Mr Hooton’s conflict was not adequately disclosed, so we have focussed our determination accordingly.
 We deal briefly with the balance standard at paragraph  and the fairness standard (which we consider does not apply) at paragraph , below.
Overview: Freedom of expression and outcome
 When we consider a complaint that a broadcast has allegedly breached broadcasting standards, we first recognise the important right to freedom of expression. Our task is to weigh the value of and public interest in the broadcasts complained about, against the level of actual or potential harm that may have been caused, with reference to the objectives of the standards described above. We may only uphold a complaint where the corresponding limitation on the right to freedom of expression is reasonable and justified.
 The broadcasts in this case carried high value and a high 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.3 What this means is we would need to find a correspondingly high level of harm to conclude these items breached broadcasting standards and to justify limiting freedom of expression.
 Considering the level of public interest, the timing of the emergence of a conflict of interest, the disclosures made, and the range of views presented through robust questioning of Mr Hooton and Mr Sutherland, we have not found harm at a level justifying regulatory intervention. We expand on our reasons below.
 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, if applicable, is to consider whether reasonable efforts were made by the broadcaster to ensure the programme was accurate and did not mislead.4
 Mr Tinsley did not identify any specific statements he considered to be inaccurate. Rather, his primary concern, as we understand it, is the broadcasts portrayed Mr Hooton as an independent political commentator when he was in fact conflicted. In other words, the alleged failure to disclose Mr Hooton’s conflict of interest in the broadcasts of 21 and 22 May, or to explain them adequately in the broadcast of 24 May, misled the audience.
Were the broadcast items misleading?
 According to Mr Hooton’s timeline, it was not until the evening of 21 May he was asked to travel to Wellington the next day for a meeting with Mr Muller, and not until the afternoon of 22 May that he was engaged to work for Mr Muller (on an unpaid basis). There is no reason to question the veracity of Mr Hooton’s timeline, and we agree with RNZ that the Broadcasting Act 1989 does not provide a process for Mr Tinsley to challenge that.
 In view of this timeline, we note that the conflict of interest complained of did not arise until after the broadcasts of 21 and 22 May. We consider that this conflict is then discussed accurately and in detail in the broadcast of 24 May.
 In the 21 May item, we also note in response to Kim Hill’s question as to why Mr Hooton thought Mr Bridges needed to go, Mr Hooton disclosed he had a longstanding friendship with Mr Muller, as well as with Mr Bridges, saying:
Well, [Mr Bridges] is a friend, Todd Muller is a friend, I’ve stayed at both their houses over the years, they are perfectly nice people both of them…and the fact of the matter is, life is not fair. But, people get to say, the public is always right, the public gets to say look, we just don’t want this person…
 In addition, in the 22 May item, Mr Hooton accepted Ms Hill’s suggestions that he had ‘nailed his colours firmly to the mast’, he was ‘a Muller man’, and even that he was ‘talking him up’. The item constituted a particularly robust interview.
 We do not consider the items were misleading.
 In any case, we consider that Ms Hill made reasonable efforts in both the 21 and 22 May items to probe Mr Hooton’s independence and reasons for his expressed positions, so as to ensure the broadcast did not mislead.
 The 24 May item included Mr Hooton’s response to Mr Peacock’s question ‘Have you been advising or working on behalf of Todd Muller or any other National MPs on the Party’s leadership contest and, if so, [had you] informed media outlets including New Zealand Herald and RNZ?’. This broadcast also included segments from Mr Peacock’s robust interview with Mr Sutherland, concerning the nature and disclosure and implications of Mr Hooton’s interests and, in particular, whether Mr Hooton’s disclosures were satisfactory.
 This broadcast provided the audience with a very detailed picture of the series of events and the emergence of Mr Hooton’s interest in Mr Muller’s leadership. The comments of Mr Sutherland were clearly statements of opinion to which the accuracy standard did not apply, and the fact Mr Tinsley disagrees with this opinion (that Mr Hooton’s disclosures were satisfactory) does not render the broadcast inaccurate or misleading.
 We are satisfied that the broadcasts were unlikely to mislead their audiences.
 Accordingly, we do not uphold the complaint under this standard.
 The balance standard (Standard 8), which requires broadcasters to present significant alternative viewpoints, applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance.
 In other words, a number of criteria must be satisfied to trigger this standard:
- The subject matter must be an issue ‘of public importance’.
- It must be ‘controversial’.
- It must be ‘discussed’ in a news, current affairs and factual programme.
 Mr Tinsley did not make specific arguments in relation to the balance standard, beyond the main concern outlined in his complaint that Mr Hooton’s conflict of interest was not adequately disclosed or adequately addressed by Mr Sutherland in his interview. As we have said, we consider this is appropriately addressed as an issue of whether the audience was misled, rather than whether the broadcasts were balanced.
 We note that the issue of Mr Hooton’s conflict of interest (in relation to his commentary on the National Party leadership contest) could be considered a controversial issue of public importance. However, we consider this issue was only ‘discussed’ for the purposes of the balance standard in the broadcast of 24 May, and the significant viewpoints relevant to the issue were sufficiently presented in that broadcast (by Mr Peacock and Mr Sutherland respectively).
 Accordingly, we do not uphold the complaint under this standard.
 The fairness standard (Standard 11) states broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. Mr Tinsley has not identified any such individual or organisation that has been treated unfairly. Therefore, we do not consider the fairness standard applies to his complaint, and have determined it in respect of the standards above.
 Accordingly, we do not uphold the complaint under this standard.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
28 October 2020
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Dave Tinsley’s formal complaint – 24 May 2020
2 RNZ’s response to the complaint – 23 June 2020
3 Mr Tinsley’s referral to the Authority – 1 July 2020
4 RNZ’s response to the referral – 24 August 2020
5 Mr Tinsley’s final comments – 28 August 2020
6 RNZ’s confirmation of no further comment – 8 September 2020
1 Broadcasting Act 1989, s 6.
2 Broadcasting Act 1989, s 5(h).
3 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.
4 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19