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Should the Media Council issue a retraction?

December 17, 2025

Well, this is interesting.

After writing the post below, I was contacted by Andrew Galloway, the Executive Director of Alcohol Healthwatch. Guess what? He says the 2-drink guideline is in fact official Canadian policy. He refers to an email from a WHO-affiliated official who says the alcohol industry has been trying, unsuccessfully, to get the New York Times and other media outlets to change their stories for the same (wrong) reason. (I’m a NY Times subscriber, and my quick search suggests that the NY Times has reported as fact that the 2-drink guideline has been formally issued in a way that seems to represent the government’s position).

This was kind of the thrust of RNZ’s reporting in the first place, which was about alcohol industry lobbying tactics.

Mr Galloway says he managed to get Stuff to correct this, and also wrote to the Media Council. But the MC refused to revise its decision.

If Mr Galloway is right about this, it presents something of a problem for the MC, I think. On the one hand, Mr Galloway isn’t a party to the complaint. RNZ was entitled to put forward what evidence it liked. There’s no process that I’m aware of in the MC rules for revising a decision once it has been issued. And while Mr Galloway and his source seem authoritative, it’s possible I suppose that they’re wrong.

But.

Equally, I’m not aware of anything in the MC’s rules that would stop it reissuing its decision. Or taking steps to check this out. And what if the letter pointing out the new evidence came from Radio NZ? Would that have made any difference?

More problematic: RNZ is required to post a summary of the MC’s decision and link to it in its original story. It now looks like that might be … inaccurate. Well, it’s accurate to say the MC upheld the breach and explain why it did. But the MC is concerned with how readers will understand any particular story. And readers will understand it to mean that the 2-drink guideline isn’t official. In fact, that’s now what the RNZ story says:

The official guidance in Canada remains a maximum of 15 standard Canadian drinks per week for men and 10 for women.

Still, if someone were to complain to the MC about the RNZ story, or the correction of it, then the MC would be in a pickle. Likewise if someone mischievously complained about the Stuff article, which supposedly gets it right, on the basis that it must be wrong since the MC said so.

Luckily for the MC, the deadline for those complaints has passed. But if I were Alcohol Healthwatch, I’d be on the lookout for the next NZ media mention of the Canadian guidelines, and I’d bring a complaint whether that story got it right or not. (If it’s wrong, complain again based on the new evidence. If it’s right, complain that it’s inconsistent with the MC’s finding of fact.) If that happened, I’d buy some popcorn.

And if I were RNZ I might just be tempted to run another story, or update the earlier one, to provide an opportunity for such a complaint…

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Media regulation system breaking down?

December 16, 2025

It was bound to happen sooner or later.

Complaints are being made to both the Media Council and the Broadcasting Standards Authority about basically the same stories. And they’re reaching different conclusions.

How can this happen? Easily. Let’s say Radio NZ broadcasts a story or interview, then posts a text version of it, as it often does. The broadcast is subject to the BSA. The text story is subject to the MC.

So if you’re Ian Wishart, and you’re annoyed that RNZ has aired a story about how Hamilton’s run of hot weather “shattered the previous record” because there’s a newspaper story from 1935 suggesting a longer run of hotter weather back then… you can complain to the BSA that it’s inaccurate. And if RNZ posts a text version, you can complain that’s inaccurate too, this time to the MC.

Of course, that’s what happened. The MC upheld the complaint. The BSA rejected it.

This has happened three times that I’m aware of. The MC has upheld them all and the BSA rejected them.

In the Wishart case, the difference between the two isn’t as large as it sounds. Both the MC and the BSA said the stories were hedged enough – the expert being quoted said he was looking at a dataset that went back to the early 1990s. It was pretty clear he was giving an opinion. RNZ was entitled to rely on that and had used words like “probably” and “likely” to indicate uncertainty. The BSA agreed. But where RNZ had fallen down was the headline (“Hamilton’s run of hot days shattered previous record”), which was stated as fact. RNZ had changed it to “breaks previous record” after receiving Wishart’s complaint, but that wasn’t good enough.

Incidentally, the data collection in 1934-5 was at different locations and with different methodologies, so it’s not at all clear that RNZ’s source was wrong. And the MC has previously held that it’s fine for headlines to contain a degree of exaggeration. So I’m not sure this was the right call. But reasonable people can disagree. Anyway, the BSA didn’t have to deal with a headline, and the introduction to the segment contained the word “likely”.

But the other two decisions really do show a difference in approach to accuracy, I think.

In one, the Brewers Association complained about an RNZ story called “Outdated alcohol guidelines understate health risks, Ministry documents reveal”. It said that the UK, Australia and Canada had all updated their drinking advice, “resulting in much lower recommended drinking limits” according to a Health NZ document. NZ’s guidelines say that low-risk drinking behaviour is up to 15 drinks a week for men, 10 for women. The article said the equivalent guidance is set, for men and women, at 2 in Canada, 10 in Australia and 14 in the UK.

HNZ started reviewing our guidance last year, RNZ reported, but then stopped after contact from the Brewers Association.

The problem is complicated and I won’t go into details. But it seems that a Canadian government advisory body had come up with, and published, the 2-drink recommendation, but it hadn’t been adopted as the official Canadian position, which was, like ours, 15 and 10 drinks. Treating the 2-drink recommendation as official advice was an error that was also made by the BBC and the NY Times, as well as our own health officials. The MC found it was a significant inaccuracy. The BSA found that it wasn’t material given that the story was really about whether the guidelines reflected modern scientific evidence about the risks. The BSA tends to ask, in cases like this, “does the mistake significantly affect listeners’ understanding of the programme?”. They said it didn’t.

Reasonable minds etc.

It’s worth pondering whether the fact that the BSA always engages with the right to freedom of expression in the Bill of Rights might be having some effect on line calls like this one. It’s striking that the BSA only upholds 5-6% of complaints, while the MC upholds at least twice that, and often more.

The third case was about video games and gambling habits. RNZ aired an expert from the Problem Gambing Foundation saying that “a lot of countries have banned loot boxes” in video games – objects that allow players to receive a random item, such as a weapon, sometimes after paying for them with real money. The problem, she said, was the intermittent reward – you only get what you want sometimes, so you keep trying. It’s powerfully addictive.

In fact, according to the complainant, only one country (Belgium) has banned loot boxes. Other countries have regulated them to some degree, but not banned them.

The MC found this to be inaccurate, and said (as with the other two complaints) that RNZ didn’t fix it fast enough. It said RNZ is generally entitled to rely on experts and this “won’t necessarily breach Council principles”. But it meant RNZ “took a risk”. (Uh, this is a risk it takes every time it interviews someone with specialist knowledge, which is basically all the time). It said someone writing up a story after an interview has an opportunity to check these things.

All of them? Maybe not. “While it might be reasonable for RNZ to have relied on expert comment in the first instance, once challenged, RNZ had an obligation to promptly investigate and publish any necessary corrections or clarifications.” (My italics).

This is not a model of clarity. So RNZ can sometimes rely on experts, but other times it will breach Council principles. It will sometimes have to check out what the expert said before writing it up, but other times, maybe not. But it will be a breach if RNZ doesn’t respond sufficiently promptly to a complaint that alerts it to a potential error.

For what it’s worth, that last point seems bang on to me. But this is a breach of the Corrections principle, not the Accuracy principle. But the MC upheld both. Why was it inaccurate, given that RNZ relied on an expert? Maybe it was breach from the outset because RNZ didn’t check it out before writing up the interview. Maybe it was only a breach after the complainant raised it. Dunno. But the former seems a bit unfair on Radio NZ given that the error was neither obvious nor all that significant. And the second seems a breach of the Corrections principle not the Accuracy one. Or… did it start off as not-inaccurate, and become inaccurate after RNZ was warned about it? That seems a bit weird, but perhaps justifiable – the circumstances for upholding an accuracy complaint did not come together until RNZ had reason to check it out, and then left it up.

What about the BSA? Not upheld. The mistake wasn’t material. It didn’t significantly affect listeners’ understanding of the story. The story was about a school programme to tackle problem gambling, not about banning loot boxes. The bit about loot boxes was peripheral and fleeting.

RNZ had tried to make the same argument to the MC – the mistake wasn’t “central to the story.” The MC said this is not relevant because publications have to be accurate “at all times.” I’m not sure that’s right. The MC has previously held that it’s only “material” errors that warrant upholding the complaint. The MC has often dismissed minor errors “that may not go to the heart of the story”. But you can still argue about whether the error was in fact material.

When I first read these decisions, I was inclined to applaud the robustness of the MC approach. But as I write them up I find I’m more convinced by the BSA’s decisions. (Though in general, I’m still inclined to think the BSA finds too many ways around upholding complaints relating to Accuracy and Balance).

Bottom line, though: it’s fairly clear that the MC and BSA take slightly different approaches to what are effectively identical stories. Both apply standards requiring accuracy but the MC is more likely to uphold complaints that the BSA sees as minor. This does not seem ideal in a regulatory system where complaints against exactly the same stories can go to both bodies.

The government’s latest recommendation about regulating a converging media (essentially self-regulation with a statutory appeal body, for “professional media” including things like Netflix and The Platform but excluding social media) seems like a pretty sensible reform to me.

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BSA is still right

October 21, 2025

This is PS to the post below.

I’ve now read what Judge Harvey and Liam Hehir have to say about this (and have had a chance to debate Judge Harvey on The Platform). I have to accept that the issue is not as clear-cut as I’ve suggested. But neither is it as clear-cut as they say it is. I still think the better argument is that the BSA has jurisdiction.

So I’m going to add a few more comments.

Provisional decision – prejudgment?

First up, there has been criticism, particularly from Judge Harvey and Sean Plunket, about the process the BSA has followed. They say that by issuing a “provisional interlocutory decision” about jurisdiction, the BSA has prejudged it. (“Interlocutory” just means a step taken in a dispute before the final argument and decision about the substance). They have a point.

But there’s another way of looking at it. The BSA twigged to this issue years ago, and did some work on it. They produced a memo and sent it to broadcasters in 2019. (The Platform and Reality Check Radio weren’t around then). The memo said they thought live-streaming internet broadcasts were included, but no such complaints had been raised, and if there was one, they’d give the broadcaster a chance to argue the toss before they made a final call.

The BSA’s provisional decision is, as you’d expect, very much in line with that memo. Had the BSA simply written to The Platform and said, “We’ve had a complaint about you. We can see there’s an issue about jurisdiction. We’d like your submissions. Oh, and we attach a memo we did in 2019 which you might like to address as part of your response” – then it would be hard to see how that was inappropriate.

What the BSA actually did was not so far from that. And as a general matter, some judges are willing to share their preliminary thinking with the lawyers arguing the case, and that’s invariably helpful. It’s good to know what you’re up against.

In fact, had the BSA not alerted The Platform to its earlier research, it could have been criticised for failing to do so. Imagine if it had just written to the parties seeking submissions and then reached a decision about jurisdiction that was in line with its earlier memo without telling The Platform about it. What’s more, the BSA would not have had the benefit of more direct engagement with its preliminary views.

Still. The process was not ideal.

On the other hand, it’s not impossible that the BSA, after hearing full argument, will reverse its provisional decision and hold that it does not have jurisdiction. That would also be entirely in accordance with the process it’s following.

Still, if you’re worried about constitutional propriety, it’s also very poor form, to say the least, for the PM and other Ministers to suggest that the BSA, a quasi-judicial authority, is unlawfully overreaching its powers. That seems to run against the spirit of the Cabinet Manual. If the BSA does reverse itself, we’re going to be left wondering whether it was political pressure that made them do it. Even if that’s not true, it’s not healthy.

What about the issue of jurisdiction itself?

Let’s put this in context. If The Platform and any other internet-based TV or radio platform are not subject to the Broadcasting Act, then they are not subject to broadcasting standards, and could do the following things:

These are all based on real cases. In most of these situations, those harmed couldn’t simply use other laws instead, even if they could afford them. I’m not saying The Platform would do all these things. But I am saying that broadcasters have done them, and been held accountable through broadcasting standards which would not apply to internet broadcasters, on the theory that they’re not covered by the Act.

That’s my point about the purpose of the Broadcasting Act. In resolving issues of interpretation, judges ask themselves whether the purpose of the law is clear (say, from a statement in the Act that says its purpose is “to provide for the maintenance of programme standards in broadcasting in New Zealand“) and then interpret any ambiguity so as to fulfill that purpose rather than frustrate it.

A more literal approach

That’s not the only approach to interpretation taken by judges. Judge Harvey focuses on a more literal and technical approach. He points out that the definition of broadcasting is about transmission by “radio waves or other means of telecommunication”. He says telecommunication is about a particular infrastructure set up by broadcasters. It doesn’t include the transmission via the internet, which occurs though a network, via protocols, none of which are set up by broadcasters. That’s what Parliament had in mind, and that’s what they described, and it doesn’t include internet radio. “Just because it looks like a duck, and quacks like a duck, that doesn’t mean it is a duck,” he says.

It’s a reasonable argument. It can be supported by reference to the right to freedom of expression in the Bill of Rights Act, which says ambiguous laws should be interpreted consistently with the right to free speech where possible and being subject to a complaints regime is definitely a restriction on your freedom of speech, although it’s a bit hysterical to describe it as “censorship”. I think the only programme the BSA has ever ordered off air is the Mighty Morphin Power Rangers, on the grounds that it taught kids that violence was the best response to their problems.

A court might decide that Judge Harvey’s approach is right. I think there might also be an argument that it’s odd to call a computer a “broadcasting receiving apparatus” and that the proper meaning of that phrase is a bespoke TV or radio set.

The comeback

My response is that, if it looks like a duck, and quacks like a duck, it’s probably just another breed of duck that we didn’t know about before, and we should treat it the same.

I think “transmission of programmes” is a broad concept. Programmes are defined as sounds or visual images intended to inform, enlighten, entertain or promote someone’s product or interests. That’s… also broad. The phase “by means of radio waves or other means of telecommunication” seems to recognise that traditional broadcasts are only one way of transmitting programmes, and Parliament was contemplating others that might not be in existence yet. It’s allowed to do that! I don’t think “telecommunication” (also broad!) needs to be tied down to infrastructure the way Judge Harvey would.

It’s not uncommon for a law to apply to things or circumstances that weren’t around when the law was passed, as long as they can properly be said to fit within it. In fact, as the BSA has pointed out, there’s another law that orders judges to do that. For example, if a law says that vehicles have to travel on the left hand side of the road, and at the time it was passed, there were only diesel vehicles, then that law would also cover petrol vehicles after they came to be invented. Even though, when the law was passed, no-one had a clue that such a thing might come to exist.

The comeback to the comeback

Judge Harvey (and others) make another argument, and quite a good one. It’s based on another principle of statutory interpretation (are you starting to get the feeling that this statutory interpretation gig is a bit more complicated than you thought? Different approaches to interpretation can point toward different results. Welcome to Laws 101!)

This principle says that judges faced with ambiguous wording in a statute should avoid the meaning that leads to absurd, unfair, oppressive, etc results. So Judge Harvey says, wouldn’t it be ridiculous if I set up a livestream at my workplace and made it publicly accessible – and was then subject to a whole complaints regime! Liam Hehir makes a similar point. Are publicly accessible Zoom meetings all broadcasts subject to the complaints regime?

I tip my hat to this argument. In some ways, it’s the flip-side to my “wouldn’t it be ridiculous if an internet broadcaster, doing news and talkback the same as traditional broadcasters, with a similar audience size, and possibly doing the same harms, wasn’t subject to the same standards regime?”

And yet.

The comeback to the comeback to the comeback

One response is that these might not be “programmes”.

Another is that there are lots of small broadcasters, such as radio stations targeted at particular ethnic groups, who are subject to the regime.

Another is that even a Zoom call or workplace livestream could attract a large audience and start doing the sorts of harms that traditional broadcasters do.

One or more of those responses might work. But I’m not at all sure about that. I’m inclined to think that those sorts of transmissions don’t fall within the scope of what Parliament thought it was doing, even at a conceptual level. I also think such an interpretation would breach the Bill of Rights Act.

So that seems to be a big problem – two big problems – for my argument. The heat’s on me to explain why they don’t sink it.

The Bill of Rights Act

I’ve said Bill of Rights protects freedom of expression. The BSA hears complaints against broadcasters’ speech, and sometimes upholds them. It can order broadcasters to air a corrective statement. That’s a direct infringement of the broadcaster’s right to decide what to broadcast. It can (effectively) fine them. That’s a punishment for speech. It can simply uphold the complaint and publish its decision. That also restricts speech by setting boundaries on what can and can’t be said. It can order them off-air for up to 24 hours (though it’s only done that once as far as I know). That obviously restricts speech.

But the right to free speech, even under the Bill of Rights Act, is not absolute. The Bill of Rights permits restrictions that are reasonable, prescribed by law, and are demonstrably justified in a free and democratic society. That’s why we can have laws regulating defamation and advertising and trade secrets and porn.

A court would almost certainly say that our broadcasting standards regime – as it applies to traditional broadcasters – is a demonstrably justified restriction on broadcasters’ speech.

I think it’s a small step to say that applying that regime to internet broadcasters who are performing virtually exactly the same activities, with the same potential harms, to similar public audiences, is also demonstrably justified.

But is it demonstrably justified to apply that regime to the livestream of work, or to a Zoom call? I don’t think so.

But I think the courts could readily get around this. I think the courts can say that The Platform is broadcasting, but the Zoom call isn’t. I think they will interpret the definition of broadcasting so that it doesn’t apply to those small-fry things. They will add a gloss that says the definition only applies, say, to broadcasters that reach substantial public audiences, or who are conducting commercial activities, or are in a position to do significant harm to the standards the Act is designed to protect, or to broadcasts that are the primary activity of the person doing the broadcasting.

That’s not in the language of the definition of broadcasting. But courts do that sometimes. I think it’s a fair argument that such a reading-down is in keeping with the context and purpose of the Broadcasting Act. It would avoid an overly expansive interpretation. It would solve the problems of purpose and free speech set out above.

So… aren’t I saying that courts won’t or shouldn’t read in Judge Harvey’s notion of telecommunication infrastructure, but they can and should read in my gloss that weeds out small, private transmissions that would otherwise be caught? Yes I am. I think mine is in keeping with the purpose of the Act, and addresses the problem of leaving significant internet broadcasters unregulated, and is a demonstrably justified restriction. (Of course, Judge Harvey’s is also demonstrably justified under the Bill of Rights, as it creates no restriction on the speech of internet telecommunications).

Levies

Sean Plunket has noted that he’s never been approached by the BSA to pay levies. In fact, the Broadcasting Act doesn’t make that the BSA’s job. It’s the job of broadcasters subject to the Act to provide a return setting out their revenue so the BSA can calculate the levy. (That levy is about $250 per half a million dollars of revenue, so I doubt it would be very high).

Actually, it’s an offence for The Platform not to submit such a return. But under the prosecution guidelines, I’m confident that no-one will be interested in prosecuting in these circumstances.

Still, there’s an argument (another principle of statutory interpretation!) pointed out to me by Graeme Edgeler that, when a statute is ambiguous, the courts usually won’t adopt an interpretation that creates unexpected criminal liability. Stack that one up beside Judge Harvey’s argument.

There’s more to say, but that’s plenty, I think.

I was wrong to say below that the counter-argument is bollocks. It’s clearly arguable. But I still think the BSA’s provisional view is right.

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The Broadcasting Standards Authority is right

October 16, 2025

The BSA has agreed to consider a complaint against internet-based radio station The Platform. This has triggered a cascade of tizzies from Sean Plunket, Winston Peters, David Seymour, the Free Speech Union, David Farrar, and others. Plunket called the complainant an ignorant “plonker”. Peters accused the BSA of “acting like some Soviet era Stasi”. Farrar says they should resign. Plunket says the BSA might “take and investigate complaints on anyone who puts anything on the internet.”

Bollocks.

The BSA is just doing its job. The Broadcasting Act regulates broadcasters. Here’s the definition:

broadcasting means any transmission of programmes, whether or not encrypted, by radio waves or other means of telecommunication for reception by the public by means of broadcasting receiving apparatus but does not include any such transmission of programmes—

(a) made on the demand of a particular person for reception only by that person; or

(b) made solely for performance or display in a public place

That’s a bit technical, but seems clearly to include an internet-based station that livestreams to a large audience. It does not include podcasters that require downloads. It doesn’t include videos posted on YouTube for download. It doesn’t include anyone on the internet who’s not livestreaming to a public audience.

As a matter of policy, The Platform is effectively a radio station. It bills itself as an “independent media organisation focussed on developing open and reasoned exchange”. It fits entirely within the legislative purpose of the Broadcasting Act. It’s conducting the same functions, serving the same good, and creating the same potential harms as NewsTalk. Why wouldn’t it be subject to the same standards – like accuracy, fairness, and privacy?

Bear in mind that the BSA’s oversight of talkback radio is extraordinarily light-touch. It rarely upholds a talkback complaint. The balance standard effectively does not apply to talkback. The BSA doesn’t apply the accuracy standard to people who call in and seldom applies it to hosts. The BSA is happy to interpret most of what goes on there as opinion or analysis. Talkback gets a lot of leeway under the fairness standard. It’s almost impossible for a public figure to bring a talkback complaint, for example. On top of that, the BSA has to consider the effect of the right to freedom of expression in the Bill of Rights Act whenever it contemplates upholding a complaint. Overall, its uphold rate in recent years is only about 6% of all complaints (not just talkback). Its standard punitive powers (usually, just publishing a decision upholding the complaint, sometimes ordering the broadcast of a corrective statement) are not a major incursion into free speech.

It’s true that internet radio wasn’t around when the Broadcasting Act was passed. But the definition of broadcasting isn’t restricted to old-style formats.

I was aware of the BSA’s view about internet radio, which they didn’t try to hide. They had considered in advance what they might do if someone complained about an internet station. You’d think that was sensible. They’d looked at the definition and reached the obvious conclusion. They said if and when the situation occurred they’d give the broadcaster a chance to make submissions about whether they should hear the complaint. I assume that’s what’s happened.

This isn’t a power-grab. It’s limited to livestreams to general audiences, and it’s what the BSA is required to do under the Broadcasting Act.

I can’t see any reason why the BSA’s general Codebook wouldn’t apply to The Platform. But the BSA is going out of its way to be fair to The Platform, which didn’t have any say (as other broadcasters did) in the development of the standards in the Codebook. So it’s only applying the standards specifically set out in the Broadcasting Act, which include taste and decency. Weird, yes. The Act lists a series of standards that broadcasters have to adhere to – taste and decency, privacy, balance, law and order – and then says the BSA can develop other standards and put them in a code (which they’ve done – adding accuracy, fairness and children’s interests, for example).

For what it’s worth, I doubt that Sean Plunket calling tikanga “mumbo jumbo” in the context of a political critique in a radio programme with a philosophy that is well known to listeners will be found to breach standards of taste and decency.

Still, I guess it’s time now to develop a codebook that applies to internet broadcasters. (Are you paying attention, Reality Check Radio?) My guess is that it will be much the same as the existing Codebook.

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Is the BSA rejecting too many complaints?

January 31, 2025

Odd fact about the Broadcasting Standards Authority: for the last few years, they’ve only been upholding about 5% of complaints.

Why? I think there’s a range of reasons. Generally responsible broadcasters. Dumb complaints. Complaints brought under the wrong standard. Greater adherence to broadcasters’ rights to freedom of expression in the Bill of Rights. (I might be a bit responsible for that one).

But you have to wonder whether they are rejecting some well-founded complaints. This level of upholds is historically low for the BSA. It’s gone on for some time. It’s much lower than the Media Council’s uphold rate.

In general, I’m a fan of the BSA. Their decisions are clear, thoughtful, principled, and generally (I think) right. But I’ve just looked at the last ten complaints, all of them rejected, and I can see two or three I think they got wrong.

Hartstone v NZME Radio

One is against Fletch, Vaughan and Haley on ZM radio. The hosts are talking about people snooping on their partners’ devices to see if they’ve been cheating. Vaughan reads out a listener text:

Vaughan [reading out text message]: I got my ex cheating while I was overseas. I checked his Find My iPhone and saw he was in a neighbouring city when he said he went for a run. He denied it at first but then confessed that he was cheating.

Hayley: Neighbouring city…

Vaughan: Everyone knows you leave your phone at home if you’re going to go for a run and hook up with people at the public toilets…

[laughter]

Vaughan: Come on guys! We’re better than this.

Fletch: Yeah, duh. Come on.

Vaughan: Chat to a gay, you know. Get some tips.

Hayley: Duh dumb dumbs.

Vaughan: Come on

Fletch: Duh.

Hayley: Yeah the gays should run a course.

Fletch: [laughs]

Vaughan: The gays should run a course.

Hayley: You know what I mean? A class.

Vaughan: Sneaky devils 101

Hayley: Sneaky devils.

Does this denigrate gay people? I think it does. Imagine if they’d said “Maaori” instead.

But the BSA didn’t uphold the complaint. They said the hosts had a reputation for being edgy; this was understood by their young audience; they were joking; it was brief.

The BSA also pointed out that the threshold for the discrimination and denigration standard (effectively a sort of hate speech provision) is a high one. It usually requires an element of malice or nastiness.

And, you know, free speech.

All true. But it strikes me that this was more pernicious than the BSA thought. It takes for granted that gay people are disloyal, dishonest and sneaky. That’s the premise of the joke. No-one questions it. The hosts run with it, repeat it, riff on it. The audience is young. The humour here, the fact that they’re all just making this assumption about gay people as if it’s just part of reality, actually makes it worse.

The type of speech cannot be said to be important in free speech terms (compared with news or serious drama, for instance). The penalty of an uphold does not much hurt ZM. They really need to be told that this isn’t acceptable.

McGlone v TVNZ

In another case, TVNZ’s 1News was doing a story on the dangers of crossing sandbars. It mentioned two recent drowning tragedies. It interviewed someone from the Coastguard, who said:

‘We recommend crossing the bar at high or low tide, so we can try and take the current out of the equation’.

This is pretty much flat wrong. No-one, including official Coastguard information sites, thinks you should be crossing a sandbar at low tide, as the BSA’s decision makes clear.

It’s also the sort of bad advice that (a) is easy to understand and remember and (b) can get you killed. Surely it’s exactly what the accuracy standard is about. The accuracy standard includes a requirement to make corrections.

The BSA didn’t uphold the complaint. When I first read the decision, I expected the BSA to say, as it very often does, that what the Coastguard guy said was simply analysis. It was just a recommendation. An opinion. The accuracy standard does not apply to analysis and opinion.

But the BSA didn’t do that. They said it was likely to be understood by viewers as a statement of fact. I think that’s dead right. I’ve criticised the BSA in the past for being too ready to treat things as analysis when the audience would understand them as fact. They didn’t do that here.

But they did say the error wasn’t material. I think their reasoning is tortuous, so I’ll give it to you in full:

[15]  The statement appears inconsistent with other Coastguard advice on bar crossings. Coastguard has said:

[16]  Many organisations agree it is unsafe to cross a bar during low tide.12 However, advice does vary. Some say it is most unsafe to cross a bar when the tide is going out, rather than at low tide.13 Others say the best time to cross is during slack tide (peak high or low tide) or to avoid crossing at ebb tide (mid-tide).14

[17]  It appears there is no one-size-fits-all rule for crossing a bar. Coastguard, Maritime NZ, and other organisations agree the safest conditions for a bar crossing, including the best tidal conditions, are contingent on the bar in question and advise local knowledge is sought before crossing a bar.15

[18]  In any event, it is not for the Authority to rule on the accuracy of a statement about the safest conditions for crossing any sand bar. To do so would overstep our role and area of expertise. However, we consider there are reasonable arguments the statement was not materially misleading or inaccurate in the context of the broadcast.

[19]  The item was not simply an educative piece on how to cross sand bars. It sought to highlight the risk and complexity involved in crossing sand bars. The broadcast emphasised a bar crossing is ‘among the most hazardous manoeuvres a skipper can make’ and coastal bars are ‘dynamic, unpredictable, and can turn perilous at any moment’. The Coastguard’s Bar Awareness Roadshow was also promoted, which was said to be taking place ‘to push down on [the] risk’ involved in crossing sand bars.

[20]  The statement cannot be viewed in isolation. Surrounding comments contextualised the statement by outlining that various factors are relevant in determining a safe bar crossing.16 The Coastguard representative listed four considerations: tide, current, wind, and swell. Therefore, in the context of the broadcast, viewers can be expected to have understood the relevant statement focused on just one of many relevant risk factors (the tide).

Look, I’m no expert. But as a rule of thumb it seems clear that you don’t cross sandbars around low tide, and any contrary general advice is dangerously wrong. If TVNZ broadcasts that advice, it’s an error, and needs to be fixed.

I don’t understand that stuff about it not being the BSA’s job to rule on that question. Of course they’re not experts at everything. That’s why they look at evidence. They are not experts at most of the subjects of the accuracy questions that come before them. But they still have to rule on them. And usually, they do.

The stuff about risk factors is all very well. But I can’t see how it makes the Coastguard guy’s statement immaterial. By finding that it’s not material, the BSA has left the story untouched, and TVNZ is not required to correct it.

But that’s not the end of the matter. The BSA had another reason for rejecting this complaint. I have to say, it’s a much better one. Because a broadcaster’s duty is not to get things right. It’s to make reasonable efforts to do so. Here, TVNZ interviewed a spokesperson from the Coastguard. Even if that guy got it wrong, surely TVNZ have behaved reasonably.

This is a strong argument, and one the BSA is increasingly relying on. Interview someone authoritative and you’re in the clear. You can make the case that this is all that we can reasonably expect of broadcast journalists.

I have sympathy for TVNZ and the BSA here. It’s hard to criticise either of them. Still, I think the correct analysis here is that TVNZ broadcast a material error, but did not breach standards when they did so, because they relied on an authoritative source.

But TVNZ did breach the accuracy standard when it failed to broadcast a correction after it was told about the error. I think that’s what the BSA should have held.

Al-Jaib v TVNZ

This case is a weird one. TVNZ broadcast a news story last June that said Israel would withdraw from the Gaza as part of a peace proposal. Everyone, including TVNZ, agrees that was wrong. Under the proposal, Israel would only withdraw from densely populated areas.

Everyone agrees the error was significant and material. That triggers TVNZ’s obligation to correct it.

What did TVNZ do? It said it could not correct the story itself, even online, because the news programme was recorded as a whole. It said it published, on its website, the following day, a story with the correct information.

That’s it. It did not broadcast anything. It did not point out, even online, that its earlier story was in error. It left that earlier story up, uncorrected.

The BSA said that TVNZ only needed to take reasonable steps to correct errors (this is a gloss on the standard, but okay), and that TVNZ had done enough.

Really? I think in general that a material error broadcast on air needs to be corrected on air. And that a correction, however it is published, needs to identify the thing it’s correcting.

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Who’s defaming you?

January 29, 2025

Someone defames you anonymously online. Can you find out who it is?

Maybe. There are legal avenues to seek a court order that an internet host reveal the identity of the person. One of them is called a Norwich Pharmacal order, but as Hugh Tomlinson KC points out, it only applies when the host is “mixed up in” the wrongdoing, and merely hosting an email account doesn’t count.

But court rules in the UK (and in NZ) allow a similar application, and the grounds are wider, though they only apply to relevant documents rather than pure information. Still, any internet host will presumably have records that permit the identity to be revealed.

Although it must be shown (in both countries) that the host is likely to hold relevant information, and that a disclosure order is “necessary”, the cases Tomlinson cites suggest that the necessity barrier will not usually be a high one once relevance is proved. (Under the NZ rules such an application can be brought before a lawsuit against the wrongdoer is filed (rule 8.20), in which case it must be shown that there’s a tenable claim against him or her. Or it can be brought afterwards (rule 8.21), in which case it must be shown that the third party holds documents that would have to have been disclosed if they were a party.

In NZ, an order can also be made under the Harmful Digital Communications Act requiring a host to reveal the identity of an anonymous or pseudonymous poster who has seriously breached the Communications Principles. I’m not aware of any such order having been made though.

It remains to be seen how (or whether?) the Bill of Rights might affect the picture. The US Supreme Court has held that anonymous speech warrants First Amendment protection. I’d like to think that if the poster was engaging in publicly significant speech and was vulnerable to exposure then a court would stop to consider whether a disclosure order is a demonstrably justified restriction on the free speech of the poster …

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Defamation damages too…

January 24, 2025

A couple of recent cases suggest that the courts are awarding significant sums for defamation even where the publication is very small. This is despite the new rule that says plaintiffs, if challenged, have to show that the publication they are complaining about has caused them “more then minor harm.” When publication is limited to a small number of people, that might be difficult, though the courts certainly take account of who the recipients are. A defamatory email to your boss might well be enough alone to get over the harm threshold.

Two recent cases suggest that the threshold is not very high, and that publications to limited audiences can cause serious harm. In one, the defendant sent two emails to a married couple, trying to warn them against a rival accountant, alleging sexual impropriety and professional misconduct. The misconduct allegation was exaggerated but not unfounded, but the allegation of sexual relationships with clients was wrong. The judge awarded $50,000.

In another, the defendant made two comments on a car dealer’s Facebook page, under a particular car listing, suggesting (falsely) that the car had been stolen. There were no other comments, and the only evidence that anyone had read it was from the person who appeared as the plaintiff’s McKenzie friend (a support person in a court case where the party is not represented by a lawyer). The judge was entitled to draw inferences about the extent of publication, but wasn’t prepared to infer that anyone else had read it. Still, the judge seemed to have no problem finding that the harm threshold was surmounted and awarded $20,000.

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Human Rights Review Tribunal serious about privacy damages

January 24, 2025

Damages for breaches of the Privacy Act used to be laughable. The very top award was $40,000 to someone whose treatment in an addiction facility was revealed to the media. Not only was it taking an age for the Human Rights Review Tribunal to resolve cases, the awards made it hardly worth the candle.

That changed in 2015 when the HRRT awarded $98,000 for humiliation over some photos of a cake. A credit union found out that Karen Hammond, an employee who had recently resigned, had celebrated her departure by having a few friends over, and one of them kindly brought a cake. The icing on the cake said “Fuck you…” and “cunt”. Hammond posted a photo on her Facebook page (which was not public). The union, Baywide, got wind of this, bullied another employee into accessing the woman’s Facebook page, took a copy, and sent it around employment agencies. Hammond struggled to get employment after that.

The HHRT said the time had come to reassess the levels of damages, and created three bands: up to $10,000 for less serious infringements; up to $50,000 for more serious ones; and more than that for the most serious category.

Cases usually involve someone wrongfully distributing private information (like Hammond). But the HRRT has held that it will also take seriously other rights created by the Privacy Act – rights about collection of information, even if it’s not distributed further.

Last month the HRRT awarded $60,000 to a man whose phone, USB stick and laptop, containing private information, were taken by his employer shortly before he was fired. (The laptop was owned by the company). What made it worse was the way the company lured him out of the office so it could nab his stuff, and how it failed to return his private information despite repeated requests.

This breached the company’s obligations to collect lawfully, fairly, and directly from the source of the information. The company argued that the employee’s behaviour was of concern and said what they found on the laptop justified the concern, but the HHRT said this did not provide any legal excuse for the breaches.

The HHRT has also been working on its backlog, and must now be regarded as a genuine avenue for redress in privacy cases.

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Not so qualified?

January 22, 2025

The defence of common law qualified privilege applies (to cut short a lot of legal jargon) when someone tells someone something in good faith, believing they need to know it. Think: telling the police that the neighbour is running methlab or dobbing in a colleague to the boss for stealing. If you honestly believe it’s true, and you only tell the person or people who need to know it, then you’re likely to have a defence to a defamation claim if it turns out you’re wrong.

But what if a lot of people need to know? Can you still use the defence?

One problem is that if you’re telling a lot of people, you may be publishing it generally, in which case, you’re in the territory of the new defence of “responsible communication in the public interest”. You’d have to show that publishing it was responsible, and that it was on a matter of public interest.

Maybe you can’t show one of those things. Might you still be able to use qualified privilege, on the grounds that the large group you sent it to all needed to know?

A recent case (Bains v Singh [2024] CA 581) gives the answer: yes. A message was posted on a Facebook page with 10,000 followers. The person it was about sued for defamation. Crucially, the followers were members of an ethnic group and had a common interest in their religious institutions and leaders, and the author frequently wrote about those things.

The Court of Appeal held that the new public interest defence does not gazump the ability to argue qualified privilege when the audience is quite large. In the past, this has stretched fairly far, including publication in a business newspaper, and it seems that this is still good law. But you’ll still have to argue that the audience has a proper interest in receiving the information.

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Supreme Court weighs in on name suppression

May 16, 2024

Name suppression decisions can be tough sometimes. No matter your views on free speech, you have to be hard-hearted not to be torn by the tug of the competing arguments.

I think you can feel the Supreme Court wrestling with that in M v The King.

The case for suppression

The appellant’s offending happened when he was between the ages of 14 and 17. (There were two appellants, but I’m going to focus on this one. He was 18 by the time he was sentenced in the District Court).

Alcohol abuse played a part. He pleaded guilty. He was sentenced to a year on home detention. After his offending, it was discovered that he is autistic and has ADHD. He’s been in psychotherapy and alcohol and drug counselling. There was evidence that publication of his name would harm his mental health by creating stress and anxiety, exacerbated by his “cognitive thinking errors”. He was attacked on social media in a way the judges described as “fairly extreme (and disturbing)”. Some people were calling for vigilante justice. There were vigilante attacks at his home.

Corrections assessed him as at low risk of reoffending.

The suppression thresholds

The Court had to consider whether publication would cause him “extreme hardship”. In a nutshell, our name suppression laws automatically suppress the identities of child victims and witnesses, and sex victims, but defendants have to show “extreme hardship” before they can get name suppression. Others involved – other victims, family etc – have to show “undue hardship” to get suppression.

It sounds like he has a fair case, right?

Suppression and youth justice

In fact, I thought the Supreme Court was going to grant it. They held that our laws had to be interpreted consistently with the UN Convention of the Rights of the Child. Because his offending occurred when he was a youth, that means his best interests must be “a primary consideration” and given “powerful weight”. That in turn means his privacy should be respected, and it should be recognised that young people can be more impulsive, have greater capacity for rehabilitation, and may be affected by psychosocial, emotional and other external influences that can contribute to immature judgements.

The judges said “the reality is that if name suppression is not granted it will be very difficult for [him] to reintegrate himself into society unless he changes his name.”

But…

And yet. They didn’t grant suppression. They didn’t find he would suffer “extreme hardship.”

The case against suppression

The case for naming him is also powerful. You’ll have noticed that I haven’t mentioned his crimes. They are bad. There were ten charges – including rape, sexual violation and indecent assault. One of the victims was 13 (though the court found this was consensual). Others were 14 or 15 and intoxicated.

Several of the victims themselves wanted him named. There’s a possibility that other victims might come forward. There’s also a strong public interest in people being named when they have committed serious crimes. They may repeat them. It is, anyway, part of being held accountable.

You might think he’d already caught a break with the sentencing – there were heavy discounts for his youth, guilty plea, mental health and remorse, so that a starting point of 7.5 years became that year-long home detention.

The Supreme Court emphasised that the “starting point” is open justice. It endorsed the two-stage approach taken by the Court of Appeal in name suppression cases. (Trainspotter point: the SC suggests, though does not actually hold, that appeals in suppression cases are evaluative not discretionary, so the appellate court can re-take the decision itself rather than look for errors of law or principle, a failure to consider a relevant matter or consideration of an irrelevant one, or a finding that is plainly wrong.)

How does the Bill of Rights fit in?

The SC also holds that the right to freedom of expression in the Bill of Rights Act is in play. Surely that’s right. It says it is “highly relevant to name suppression decisions.” Good. It also notes that the BORA right to a “fair and public hearing” is relevant. Well, sure, but it’s a bit odd to cite that provision – which is there to protect the defendant against abuses of justice in the dark – in a way that hurts the defendant.

More to the point: how, exactly, does the right to freedom of expression fit with name suppression decisions? What’s the mechanism? The BORA permits reasonable limitations that are demonstrably justified in a free and democratic society. Surely name suppression will sometimes qualify. When? How do we tell?

Infuriatingly, the Supreme Court doesn’t say. There’s no methodology. So I’m guessing judges will keep ignoring the right to free speech in suppression decisions, or just pay lip service. At best, it may be a thumb on the scales.

Reasoning for denying suppression

In the end, the SC found that public embarrassment goes with the territory when you’re convicted. His autism and ADHD were being managed. He had family support. The online hate was from people who already knew his identity and wasn’t as pervasive as in some other cases. The offences were serious. This wasn’t just a case of missing some social cues. The courts below had assessed risk of reoffending as, at best, closer to moderate.

So, name suppression was denied. As a result, he can be named on 14 June 2024, after the court gave him some time to prepare.

The lesson?

Whatever you may have read in the occasional media beat-up about name suppression, it’s usually not easy to get. This case underscores that. This case makes youth offending factors mandatory considerations, but not necessarily overriding ones. Embarrassment, effect on employment prospects, a degree of harm to mental health, youth… none of these will usually be enough to get name suppression.

Name suppression decisions are sometimes tough.

A warning?

The SC said “any commentary, in whatever medium, should be responsible” and hoped that it would not repeat “the inappropriate commentary that has featured, albeit infrequently, in social media to date.”

Of course, I agree. But just to be clear, the SC doesn’t have any say about that. They can’t punish speech for being “inappropriate”. It’s like what the SC said in Erceg v Erceg: the principle of open justice means “that media representatives should be free to provide fair and accurate reports of what occurs in court.” Actually, they’re free to provide unfair and inaccurate reports too. I’m not encouraging that! But it’s only in very rare situations that an unfair or inaccurate report of a court proceeding will cross the line into punishable contempt or defamation.

The courts are not the only body in the nation with the special right only to have truthful accounts published about them.

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