XD and Mediaworks TV Ltd - 2018-102C-D (13 March 2019)
- Judge Bill Hastings (Chair)
- Wendy Palmer
- Susie Staley MNZM
- Paula Rose QSO
ProgrammeNewshub and The AM Show
BroadcasterMediaWorks TV Ltd
[This summary does not form part of the decision.]
A complaint regarding two broadcasts, relating to threats to public officials over the Government’s use of 1080 (including footage of an anti-1080 protest featuring the complainant), was not upheld. The Authority found the use of the footage, in segments on Newshub and The AM Show, did not result in any unfairness to the complainant. The Authority considered these broadcasts did not link the complainant, or the majority of anti-1080 protestors, to the threats, as both broadcasts stated that the threatening behaviour was from the fringes of the movement. The Authority determined that the audience was therefore unlikely to be misled or misinformed. The Authority also found a comment made by host Duncan Garner during The AM Show segment, implying Willie Apiata should be sent to harm the people who made the threats, did not breach broadcasting standards. The Authority noted that the comment was flippant, and when weighed against the broadcaster’s right to freedom of expression, it did not reach a point that justified the limitation of that right.
Not Upheld: Programme Information, Violence, Discrimination and Denigration, Accuracy, Fairness
 A Newshub segment reported that the Prime Minister had received threats from anti-1080 extremists. The report included footage of what it described as ‘a peaceful anti-1080 protest’, taking place near the Labour Party conference. The complainant was visible as part of this protest.
 A segment on The AM Show featured Newshub Political Editor Tova O’Brien discussing reports that the Prime Minister and the Department of Conservation (DoC) had received multiple threats in relation to the use of 1080 poison. This broadcast contained the same footage of the protest featuring the complainant as the Newshub segment and included the following commentary:
We’re seeing this growing movement on the fringes of the anti-1080 campaign… Some of the things the Conservation Minister outlined to us yesterday: wheel nuts being loosened on vehicles, helicopters being shot at, wires being strung across valleys to try and bring helicopters down. That is hugely, hugely concerning. Some of the threats as well posted on the DoC Facebook page: ‘I will slaughter the skin off your faces you DoC muppets’. It is extreme and it is getting increasingly extreme and I think now is time – and I think DoC has kind of changed its focus and heightened its focus on security around 1080 and it needed to because the fringe elements of the anti-1080 movement are out of control.
 This broadcast also included commentary from host Duncan Garner who, having introduced the report by referring to the ‘thugs targeting the Prime Minister’, then commented afterwards saying: ‘Lock ‘em up. Lock ‘em up. They’re anarchists. Send in Willie Apiata in camo gear to sort them out one night and they’ll never breathe again.’
 The Newshub segment was broadcast on 6 November 2018 on Three. The AM Show segment was broadcast on 7 November 2018 on Three.
[5 ] The complainant submitted that the broadcasts breached the programme information, violence, discrimination and denigration, accuracy and fairness standards of the Free-to-Air Television Code of Broadcasting Practice, for the following reasons:
- The Newshub footage of the protest featuring the complainant unfairly linked them to the death threats to the Prime Minister and labelled them as a ‘ban 1080 fringe extremist’.
- The complainant was protesting peacefully and exercising their rights under the New Zealand Bill of Rights Act 1990 to raise awareness of a serious environmental issue.
- The complainant’s image was used without their consent, which ‘villainised’ the complainant amongst their community and the people of Aotearoa.
- Both the complainant and the Ban 1080 movement (which is a protest against violence) were unfairly represented.
The AM Show
- Mr Garner referred to 1080 protestors as ‘thugs’ during The AM Show and, the way the story was reported, implied he was referring to the complainant.
- DoC’s allegations are inconsistent with information released by Police under the Official Information Act 1982, which show only a handful of reported threats, none of which are properly attributed to people opposed to 1080.
- The broadcast’s representation of 1080 protestors was unfair, misleading and deceptive. Most 1080 protestors seek a more humane world and are legitimately concerned about the indiscriminate use of a deadly poison. They are not the type of people who condone violence.
- Mr Garner’s comments regarding Mr Apiata were extremely serious, inflammatory and incited violence.
The broadcaster’s response
 MediaWorks’ response was that:
- The protest was described in the Newshub item as ‘a peaceful anti-1080 protest’ and the complainant was not named or directly referred to. The protest was used as an example of responsible and peaceful anti-1080 activism and was juxtaposed with the fringe extremists who were the subject of the story. There is no basis to the claim that the broadcast ‘linked [the complainant] to death threats’ or ‘labelled [the complainant] as a ‘ban 1080 fringe extremist’.
- Regarding the reference to Mr Apiata, considering audience expectations of Mr Garner and The AM Show, the target audience, the nature of the comment and the lack of graphic images, the broadcast did not breach the violence standard.
- The ‘fringe’ of the anti-1080 movement does not amount to a ‘section of the community’, as intended by the discrimination and denigration standard. In any event, the broadcast was a combination of factual material and expression of serious comment, analysis and opinion, which the standard is not intended to prevent.
- The broadcast’s reporting of the threats made against the Prime Minister and DoC staff, and their increasing frequency, reflected information that had been released publicly by the Prime Minister’s office and DoC.
The relevant standards
 The fairness standard states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The purpose of this standard is to protect the dignity and reputation of those featured in programmes.1 Broadcast participants should also be informed, before the broadcast, of the nature of their proposed contribution except where justified in the public interest or where their participation is minor in the context of the programme.2
 The accuracy standard 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 being significantly misinformed.3
 Under the programme information standard, broadcasters should ensure that programmes are correctly classified and screened in appropriate timebands, and issue an audience advisory where the content of a broadcast may not be suitable for likely viewers.
 The violence standard states that broadcasters should exercise care and discretion when dealing with the issue of violence.
 The discrimination and denigration standard protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief.
 The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.
 In this case, the harm alleged to have been caused was damage to the complainant’s reputation (amongst their community and within New Zealand) and the reputation of anti-1080 campaigners generally, misleading audiences with inaccurate information, and inciting unlawful behaviour through Mr Garner’s comments.
 For the reasons set out below we find:
- The use of the protest footage in both broadcasts was not unfair to the complainant and was unlikely to mislead the audience about the complainant being linked to the threats.
- The portrayal of activists in the broadcast was not misleading or unfair.
- While Mr Garner’s comment regarding Mr Apiata was flippant, it did not reach a point that justified the limitation of the broadcaster’s right to freedom of expression.
 The complainant submitted the use of footage featuring them, without their consent, unfairly linked them to the alleged threats and that both broadcasts unfairly represented anti-1080 activists.
 Consideration of what is fair will generally take into account whether the audience would have been left with an unduly negative impression of an individual or organisation.4
 With regard to the complainant’s depiction, while the complainant was shown in the footage at the front of the protest, in medium close-up, the complainant was not specifically highlighted or emphasised in the footage through a close-up zoom or special effects.5 Further, the footage was taken at a public protest outside a high-profile event (Labour Party Conference). In these circumstances, we consider the complainant could have reasonably expected the protest to attract some media interest, and that footage of the protest and the participants might then be broadcast by media. Finally, the use of the footage was fleeting and the complainant was not named or otherwise specifically referred to.
 Accordingly, we consider the complainant’s participation in the broadcast, being their brief appearances in public crowd scenes, was minor in the context of the segments. Therefore we find the complainant’s consent was not required.6
 In regards to the complainant’s submissions that they were unfairly linked to the alleged threats:
- The footage was used briefly at the beginning of the Newshub item and was described as a ‘peaceful anti-1080 protest’. The subject of the broadcast then switched to discuss the alleged threats to Government workers, which it stated were carried out by those on the fringes of the anti-1080 movement. Considering the host’s explanation of the protest and the broadcast’s shift in tone, we find it unlikely viewers would associate the complainant with the alleged threats to the Prime Minister or DoC staff.
- In regards to The AM Show, Ms O’Brien discussed ‘the growing movement on the ‘fringes’ of the anti-1080 campaign.’ Footage of the protest outside the Labour Party conference was shown alongside footage of 1080 use and other protests, while Ms O’Brien discussed DoC’s increased vigilance in response to the threats. While this broadcast did not explicitly state that the protest was peaceful, we do not consider the broadcast linked the complainant or any of the specific protestors with the threats. We understand the complainant’s concern with the footage being used. However, it was clearly used as an example of the growing public presence of the anti-1080 movement within New Zealand. The broadcast did not suggest the complainant was personally responsible for any of the threats that came from the ‘fringes of the movement’ or that Mr Garner personally considered the complainant to be a ‘thug’.
 Accordingly, we do not consider the complainant’s reputation or dignity was unfairly harmed by the use of the protest footage in either broadcast.
 With regard to the depiction of anti-1080 protestors as a group, the Authority has previously found that a large group of people does not amount to an organisation for the purposes of this standard, simply because of their size or a shared characteristic.7
 On this basis, we are satisfied that anti-1080 protestors do not amount to an ‘organisation’ and therefore the fairness standard does not apply to them. In any event, the comments made about the conduct of anti-1080 campaigners related to those who are on the fringes of the movement, and did not relate to the conduct of the anti-1080 movement as a whole.
 Therefore we do not uphold the complaint under the fairness standard.
 Under this standard we considered:
- whether the public would have been significantly misinformed as a result of the use of the protest footage
- whether the portrayal of anti-1080 campaigners in the broadcast was misleading, and
- whether the broadcasts were inaccurate in relation to the reported number of threats against public officials.
 The protest footage was taken at a public event, used briefly in both broadcasts and was not manipulated in any way. In our view, neither broadcast suggested the complainant was involved in the threats against DoC or the Prime Minister. We do not consider viewers would have linked the complainant with the threats as a result of the footage. We therefore find the use of the footage in both broadcasts was not misleading.
 As to whether the coverage of the anti-1080 movement was misleading, we find that:
- The hosts’ comments about threats referred clearly to the conduct of those who were acting on the ‘fringes’ of 1080 protests. Accordingly, we do not consider the broadcast misled viewers about anti-1080 campaigners generally.
- The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.8 Mr Garner’s statements (referencing ‘thugs’ and ‘anarchists’) were clearly statements of comment and opinion to which the accuracy standard does not apply.
 In regards to the number of threats reported, we understand that MediaWorks used information from DoC and the Prime Minister’s office. Considering the reputable and public nature of the sources of this information, we consider that MediaWorks took reasonable efforts to ensure the accuracy of the broadcasts, as required by the standard.9
 Accordingly we do not uphold the complaint under the accuracy standard.
Remaining standards raised
 In regards to the programme information standard, The AM Show and Newshub are news and current affairs programmes which are not subject to classification requirements.10 In our view, there was also no graphic language or imagery in either broadcast that required an audience advisory.
 As found in another decision regarding this episode of The AM Show, (Flutey & Rzesniowiecki and MediaWorks TV Ltd, Decision No. 2018-102A-B) we find Mr Garner’s comment about Mr Apiata did not breach the violence standard, taking into account Mr Garner’s flippant tone and other contextual factors, including audience expectations of Mr Garner and The AM Show, and the lack of explicit or graphic language. We do not consider the comment amounted to a serious promotion of illegal or anti-social behaviour.
 We do not consider that Mr Garner’s comment concerning Mr Apiata, the use of footage featuring the complainant or the representation of anti-1080 protestors generally breached of the discrimination and denigration standard, for the following reasons:
- We agree that Mr Garner’s comment was flippant and potentially offensive or upsetting to some. However, comments will not breach the standard simply because they are critical, offend some people or because they are rude.11 This comment did not amount to hate speech or a sustained attack on a particular group.12
- The broadcast did not purport to comment on the complainant or anti-1080 campaigners generally. It clearly identified the threats as coming from the ‘fringes’ of the anti-1080 movement. This standard is not intended to prevent the broadcast of serious commentary or factual programmes (unless the broadcast amounts to hate speech or a sustained attack on a particular group).13 While the story contained critical comments about the actions of members on the ‘fringes’ of the movement, the broadcast was a straightforward mix of reporting and commentary on the recent threats made against public officials by fringes of the movement.
 While we have not upheld the complaint in this instance, due to the nature and circumstances of the complaint, we have suppressed XD’s name in our decision.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
13 March 2019
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 XD’s formal complaint – 19 November 2018
2 MediaWorks’ response to the complaint – 6 December 2018
3 XD’s referral to the Authority– 7 December 2018
4 MediaWorks’ confirmation of no further comment – 23 January 2019
1 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
2 Guideline 11b
3 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
4 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
5 See JW and MediaWorks TV Ltd, Decision No. 2016-058
6 Guideline 11b
7 See for example: Loder and Dennis and MediaWorks Radio Ltd, Decision No. 2018-011
8 Guideline 9a
9 Guideline 9d
10 Guideline 2c
11 Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 15
12 Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
13 As above