Wong & Soper and Television New Zealand Ltd - 2020-177 (22 June 2021)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- Mark Wong & Craig Soper
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
The Authority has not upheld two complaints about an item on 1 News that reported on protests in Washington DC in opposition to the results of the United States Presidential election. The complaints were the item’s description of the Proud Boys as a ‘white supremacist’ group was inaccurate because its leader, Enrique Tarrio, is African-Cuban and it is an ‘American chauvinist’ rather than a white supremacist group. Mr Soper also complained the item’s descriptions of Joe Biden as President-Elect, before his confirmation by the Electoral College, and of voter fraud claims as unproven, were unbalanced and inaccurate because Mr Biden’s election had not been confirmed and there was substantial evidence of voter fraud. The Authority found use of the term ‘white supremacist’ was distinguishable as analysis and opinion, to which the requirement for factual accuracy does not apply. The Authority also noted: ‘President-Elect’ is an unofficial term widely used from as early as election night and all claims of voter fraud remained untested in the Courts as at the date of broadcast. The Authority found, in the context of the broadcast, these descriptions were not materially inaccurate nor likely to mislead viewers. The balance standard did not apply.
Not Upheld: Accuracy, Balance
 An item on 1 News, on 15 November 2020, reported on protests in Washington DC in opposition to the results of the United States (US) Presidential election and in support of then-President Donald Trump:
Melissa Stokes: Tens of thousands rallied in Washington DC to protest against unproven claims of voter fraud…
Anna Burns-Francis: There’s still a group of around several hundred members of Donald Trump’s supporters. A number of them are from the group the Proud Boys, which is a white supremacist right-wing group or faction of Donald Trump’s supporters… But the President’s legal hopes are fading, and there is very little chance any of the cases will overturn the vote…
Ms Stokes: Anna, still so much focus on President Trump, but America does have a new President-Elect, Joe Biden.
 Craig Soper complained the broadcast breached the accuracy and balance standards:
- It incorrectly stated Mr Joe Biden was President-Elect:
- The election results were still being counted.
- The Electoral College had not confirmed Mr Biden’s election.
- Mr Biden was only the projected winner and not President-Elect.
- It incorrectly stated claims of voter fraud were unproven:
- There was significant evidence of voter fraud yet to be considered by the courts (for example, there were 168 affidavits from poll workers claiming voter fraud, there were 6000 votes cast for Mr Trump that had been tallied for Mr Biden, and there were cases of Republican observers being barred from observing ballet counting in battleground states).
- Never had mail-in voting occurred on such a scale before in US election history.
- There were genuine concerns from a large number of people about election integrity.
- It incorrectly stated the Proud Boys are a white supremacist group:
- Members describe themselves as ‘American chauvinists’, being men who love America and advocate the right to bear arms.
- Spokesman of the Proud Boys, Enrique Tarrio, is African-Cuban and said the group has ‘longstanding regulations prohibiting racist, white supremacist or violent activity’.
- All violence in the US has been conducted in Democrat States by Antifa and Black Lives Matter, not the Proud Boys.
 Mark Wong complained the broadcast breached the accuracy standard on the basis of its description of the Proud Boys as a white supremacist group:
- ‘There is no evidence that this group are “white supremacists” and such claims are baseless. There may be many publications that refer to them as such, but One News has a duty to confirm facts rather than just blindly accepting allegations.’
- ‘It is in essence calling this man a race traitor with no evidence.’
- ‘I am sick and tired of the media’s constant attempts to frame all Trump supporters [as] racists.’
 In his referral to the Authority, Mr Wong also raised the good taste and decency standard. However, pursuant to section 8(1B) of the Broadcasting Act 1989, we are only able to consider standards raised in the original complaint to the broadcaster. As the good taste and decency standard was not raised at that stage (implicitly or otherwise), we do not address it in this decision.
The broadcaster’s response
 TVNZ did not uphold the complaints for the following reasons:
- Statement that Mr Biden was President-Elect: This term is widely used in the US to refer to a candidate who has won the Presidential election but has not yet been inaugurated. US Presidential election winners before Mr Biden, including Mr Trump, were referred to in this way prior to Electoral College confirmation or inauguration.
- Statement that claims of voter fraud were unproven: The US Justice Department uncovered no evidence of widespread voter fraud that could change the outcome of the election, as announced by Attorney General William Barr. Allegations about election fraud remain unsubstantiated.
- Statement that Proud Boys are white supremacists: This was not a material fact in the item, which focused on the protests. While some members of the Proud Boys dispute the designation of their group as white supremacist, other members and leaders do not. Law enforcement and other agencies dedicated to monitoring hate groups have noted the Proud Boys have ties to white supremacism. Also, Mr Tarrio and other members attended the ‘Unite the Right rally’ in Charlottesville, which was a white supremacist rally.
- Balance: The US Presidential election is not a controversial issue of public importance for the purposes of this standard. In any case, the programme included a range of significant points of view, including from Mr Trump, and the issue of the US election has been covered extensively in the New Zealand media.
 The accuracy standard1 protects the public from being significantly misinformed.2 It states broadcasters should 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.
 In our view, the accuracy standard is the most relevant to all of the above complaints, so we have focused our determination accordingly. We briefly address the balance standard at paragraph  below.
 We have watched the broadcast and read the correspondence listed in the Appendix.
 We have also considered the important right to freedom of expression, which is our starting point. This includes the broadcaster’s right to offer a range of ideas and information and the audience’s right to receive those ideas and information. We may only intervene and uphold a complaint where the broadcast has caused actual or potential harm at a level that outweighs the right to freedom of expression. For the reasons below, we have not found such harm in this case.
 The audience may be misinformed in two ways: by incorrect statements of fact within the programme; and/or by being misled by the programme.
 The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.3
 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.4
 Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts’.5 Programmes may be misleading by omission, or as a result of the way dialogue and images have been edited together.6
Does the accuracy standard apply?
 The statements describing Mr Biden as President-Elect and claims of voter fraud as unproven are statements of fact to which the requirement for accuracy applies.
 However, the statement describing the Proud Boys as white supremacist is distinguishable as analysis and opinion, as the Authority has previously found.7 Accordingly, the description of the group as ‘white supremacist’ is not a statement to which the requirement for factual accuracy applies.
Was the broadcast inaccurate or misleading?
Statement that Mr Biden was President-Elect
 ‘President-Elect’ is an unofficial term without a defined set of rules for its use or application,8 but it has been widely used to describe US Presidential election winners, including Mr Trump, prior to Electoral College confirmation or inauguration, and from as early as election night.9
 In this light, the description of Mr Biden as President-Elect was not materially inaccurate nor likely to mislead.
Statement that claims of voter fraud were unproven
 It is not our role to determine the merits of Mr Trump’s claims of voter fraud, either according to the information available at the time of the broadcast, or with the benefit of hindsight, although we do note Mr Trump’s claims and legal challenges were ultimately unsuccessful.
 As we understand it, the complaint is the item minimised the significance of the claims of voter fraud by dismissing them outright, when they had been particularised in detail with reference to specific issues in specific states, and specific evidence from individuals, as submitted to the courts.
 However, at the time of broadcast, these claims and any corresponding evidence remained, at best, unproven as they were untested by the courts. In that context, details of these claims were not material to the item focusing on the protests, and the description of these claims as unproven was not materially inaccurate nor likely to mislead.
 For completeness, we note the comment ‘But the President’s legal hopes are fading, and there is very little chance any of the cases will overturn the vote’ is a statement of analysis, to which the requirement for factual accuracy does not apply.
 The balance standard applies to broadcasts discussing controversial issues of public importance, and requires that significant viewpoints are presented, to enable viewers to arrive at informed and reasoned opinions. The US election could be considered a controversial issue of public importance, but it was widely covered by the media including by TVNZ, and in any case the focus of this item was the riots rather than the election itself. The characterisation of the Proud Boys as white supremacist or otherwise was not a controversial issue of public importance for the purposes of this standard.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
22 June 2021
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Mark Wong’s formal complaint – 16 November 2020
2 Craig Soper’s formal complaint – 16 November 2020
3 TVNZ’s response to Mr Wong’s complaint – 9 December 2020
4 TVNZ’s response to Mr Soper’s complaint – 12 February 2021
5 Mr Wong’s referral to the Authority – 9 December 2020
6 Mr Soper’s referral to the Authority – 1 March 2021
7 TVNZ’s response to Mr Wong’s referral – 16 April 2021
8 TVNZ’s response to Mr Soper’s referral – 16 April 2021
1 Standard 9 of the Free-to-Air Television Code of Broadcasting Practice
2 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
3 Guideline 9a
4 Guideline 9b
5 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
6 As above
7 Arps and MediaWorks TV Ltd, Decision No. 2019-073B at 
8 Karina Bolster “Decision 2020: The meaning behind ‘President-elect’” NBC 12 (online ed, Virginia, 10 November 2020)
9 "Fact Check: Previous presidents have used ‘Office of the President Elect’" Reuters (online ed, 19 November 2020); "The Guardian view on President-elect Donald Trump: a dark day for the world" The Guardian (online ed, 9 November 2016); John Cassidy "How Donald Trump Became President-Elect" The New Yorker (online ed, 9 November 2016)