Wright and Discovery NZ Ltd - 2020-143 (20 April 2021)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- Cameron Wright
BroadcasterDiscovery NZ Ltd
[This summary does not form part of the decision.]
The Authority has not upheld a complaint that a Newshub Nation item reporting poll results on support for Auckland Central constituency candidates was misleading, as it excluded undecided voters. The Authority found the results were not inaccurate or misleading in the context of the whole item. There was lengthy discussion that followed concerning the poll results and the views of each of the candidates, and at the end of the item, the reporter advised more than 20% of voters still had not decided which candidate to support. Overall, the Authority did not find actual or potential harm that justified regulatory intervention or limiting the right to freedom of expression.
Not Upheld: Accuracy
 An item on Newshub Nation, broadcast on 19 September 2020 (Three), reported results of a Reid Research Poll on support for candidates for the Auckland Central electorate, one month out from the general election:
We commissioned our first-ever Newshub Nation Reid Research Poll, and here are the exclusive results.
[Labour’s] Helen White is way out in front on 42%. National’s Emma Mellow is a distant second on almost 27%, while the Green’s Chlöe Swarbrick is third, on 24%.
So, on these numbers, a safe blue seat for the last four elections has turned red. And it could spell the end of the Greens in Parliament if they don’t reach the 5% threshold. A mammoth task for Chlöe Swarbrick to turn this around…
 This was accompanied by onscreen graphics showing Helen White on 42.3%, Emma Mellow on 26.6% and Chlöe Swarbrick on 24.2%. Onscreen text below these figures read, ‘Margin of error: 4.2%’.
 An 8-minute item followed during which a reporter discussed the poll results and the campaigning of each of the three candidates. Comments on camera from each candidate were also included responding to the poll and commenting on their campaigning so far and perceived chances of election success.
 At the end of the item, the reporter advised more than 20% of voters still had not decided which candidate to support:
But there is a lifeline for both Mellow and Swarbrick. More than 20% of Auckland Central voters haven’t decided who they’re backing… It’s all on the line in this crucial electorate, as National seeks to retain Auckland Central, while the Green Party fights to survive. Both of them chasing a Labour candidate with a comfortable lead in the only poll.
 Mr Wright complained the broadcast breached the accuracy standard by excluding undecided voters from the reported poll figures:
- ‘[O]nly the decided vote was counted for the results, which is misleading as undecided voters are being excluded.’
- ‘Undecided voters accounted for 20.7% of the results, however the three candidates accounted for (42.3 + 26.6 + 24.2 =) 93.1% of the results shown. 93.1 + 20.7 = 113.8%, so these figures are misleading.’
- On the complainant’s calculation, including undecided voters in the results ‘would have the candidate vote closer to 36.0%, 22.7%, and 20.6%.’
- ‘The broadcaster called the task of either the second or third placed candidates winning the seat as “massive” when in reality it’s entirely plausible when the undecided vote becomes obvious.’
- ‘The BSA recently cited data literacy as a reason to uphold a complaint, I believe this is another case for that.’
The broadcaster’s response
 MediaWorks did not uphold Mr Wright’s complaint for the following reasons:
- ‘The reporter ranked the three candidates based on the results of that poll. The margin of error was graphically displayed on-screen.’
- ‘Toward the end of the report… the reporter said there is a lifeline for both Mellow and Swarbrick – more than 20% of Auckland Central voters haven’t decided who they’re backing with exactly four weeks ‘til election day.’
- ‘…viewers are familiar with the way Newshub-Reid Research polls are presented. The parameters of the research and margin of error were clearly evident.’
- ‘The reporter commented that 20% of voters were undecided and the poll clearly did not include those voters. Viewers were left to form their own views about how much weight to give the poll in light of the parameters provided to them.’
 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.
 The Authority’s Election Complaints Fast-Track Process contemplates fast-tracking of complaints about ‘programmes that relate to election or referenda matters that may influence a vote’.3 As this complaint was only referred to us after the 2020 General Election, it was not eligible for fast-tracking and has been dealt with under our standard procedures.
 We have watched the broadcast and read the correspondence listed in the Appendix.
 We have also considered the right to freedom of expression, which is our starting point. This includes the broadcaster’s right to offer information and the audience’s right to receive it. We may only intervene and uphold a complaint where the broadcast has caused actual or potential harm at a level that justifies placing a limit on the right to freedom of expression. For the reasons below, we have not found such harm in this case.
 Under this standard, the audience may be misinformed in two ways: by incorrect, material statements of fact within the programme; and/or by being misled by the programme. Mr Wright is concerned with the latter, submitting the way in which the poll results were reported was misleading.
 Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts’.4 Programmes may be misleading by omission, or as a result of the way dialogue and images have been edited together.5
 Viewing the item as a whole, we do not consider the way the poll results were initially reported resulted in the broadcast being misleading. This is because:
- The margin of error (±4.2%) was clearly displayed onscreen alongside the figures reported, indicating to viewers that the percentages reported were not precise or exact; the relative levels of support for each candidate were the focus.6
- The figures were contextualised by the full item and lengthy discussion of the results that followed, including excerpts of interviews with each of the three candidates about their campaigning to date and their perceived chances of election success.
- The number of undecided voters was not material to the focus of the item, which was the comparative levels of support for the major candidates at the time of the broadcast, one month out from the election. In this context, the exclusion of the number of undecided voters from the figures actually presented a clearer picture of the nature of the competition between candidates in Auckland Central at that time.
- The public understands poll results are based on surveys of a sample population and give only a brief snapshot of public opinion. Poll reports seldom report on the same sample size or adjust their figures to account for unsurveyed populations. Viewers are accustomed to this approach. Concurrent reporting on a poll conducted by Colmar Brunton, regarding voter support for the Auckland Central candidates in the lead up to the general election, also excluded undecided voters and presented figures as percentages of the total number of decided voters, as pointed out by the complainant.7 We consider this is consistent with audience understanding and expectations.
- In any event, at the end of the Newshub Nation item the reporter clearly acknowledged more than 20% of voters were undecided as to which candidate to support.
- Finally, remarks by the host and the reporter, including that the poll results represented a ‘mammoth task for Chlöe Swarbrick’, it’s ‘all on the line’ and Labour had ‘a comfortable lead’, were clearly distinguishable as analysis, comment or opinion, to which the requirement for factual accuracy does not apply.8
 In these circumstances, we have not found actual or potential harm that justifies regulatory intervention.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
20 April 2021
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Cameron Wright’s formal complaint – 22 September 2020
2 MediaWorks’ response to the complaint – 20 October 2020
3 Mr Wright’s referral to the Authority – 20 October 2020
4 MediaWorks’ confirmation of no further comment – 11 November 2020
5 Mr Wright’s confirmation his complaint related to the television broadcast (rather than online content) – 19 March 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 Broadcasting Standards Authority “Fast track complaints process for election related content” <www.bsa.govt.nz>
4 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
5 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
6 See also Seymour and Television New Zealand Ltd, Decision No. 2012-082 at 
7 1 News (4 October 2020) “Auckland Central electorate race narrowing, Q+A Colmar Brunton poll reveals” <tvnz.co.nz>
8 Guideline 9a