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NZ’s Dunne v Canwest

By Steven | May 3, 2010

Here’s a column I wrote about the Dunne case suggesting that the media’s predictions of doom and gloom were wrong.

Judging by the media reaction, Justice Young’s decision to order TV3 to include Peter Dunne and Jim Anderton in its leaders’ debate last week was one of the most astonishing blunders in judicial history.

Media Freedom Committee Chair Tim Panckhurst called it “bizarre.” The New Zealand Herald said the judge “demonstrated a cavalier disregard for fundamental issues of media freedom and private-company rights” and called his decision “astoundingly inappropriate.” Sunday Star-Times columnist Michael Laws described it as “staggeringly stupid.”

All fretted that the decision paves the way for judges to tell the media what it has to publish. “The ruling implies that every time Mr Anderton, or any other MP, expresses a view during a parliamentary debate, the media will be obliged to report it,” thundered the Herald.

This would indeed be – as Fairfax New Zealand’s Peter O’Hara put it – “an alarming intrusion into the democratic process and the operations of a business.” Well, it would if it were true.

But it’s not.

In fact, it’s difficult to believe that any of them have even read Justice Young’s decision. If they had, they would have found its reach much more limited than they seem to imagine.

Essentially, the judge said that even though TV3 is a private company, there are occasions when companies do things that are so pivotal to our democracy that the courts may have to step in to make sure they don’t make a complete hash of them. Here, TV3 was running a debate that could conceivably affect the make-up of the next government. That possibility isn’t merely theoretical. Recent history shows how a similar debate on TVNZ (which also featured the “worm”) during the last election jump-started the fortunes of United Future. Before that debate United Future was polling at 0.4%. The worm and, afterwards, the media drooled over United Future’s leader, Peter Dunne, and the party garnered 6.9% of the vote at the election.

Even so, TV3 was going to exclude United Future from its leaders’ debate this year. It had earlier announced that only the top six parties in its July 28 poll would make the cut. ACT came in sixth, with 1.6%. United Future was next with 1.4%. Jim Anderton’s Progressive Party scored 0.4%.

Justice Young wasn’t impressed with this selection procedure. Perhaps he recalled his days as president of the Electoral Commission, the agency that divvies up public funding and airtime for party advertisements. It’s a rigorous process that weighs up everything you’d expect, including all recent poll results, existing representation in Parliament, and the results of any recent by-elections.

And here was TV3 basing its whole decision on one poll! A poll whose 3.1% margin of error made the differences between the smaller parties a statistical nonsense! Justice Young concluded that TV3 was acting “unreasonably and arbitrarily.”

The judge wrestled with the problem of who should be included in the debate. He said he would rather let TV3 re-decide itself based on proper principles. But time was running out, so he said the only sensible way to draw the line was to order the inclusion of those who, on the evidence before him, were likely to be in Parliament after the election.

The decision does have its problems. Arguably, Justice Young didn’t pay enough attention to the careful balancing that’s required under the Bill of Rights Act when freedom of expression is at stake.

Arguably, he should have acknowledged that analogous cases where the courts have intervened have involved private organisations that were performing regulatory functions, like the Advertising Standards Authority. TV3 isn’t performing that sort of public function when it holds debates.

And arguably, the judge set the standard of arbitrariness too low. There are cases that say a person’s behaviour has to be “so absurd that he must have taken leave of his senses” before the courts will treat it as “arbitrary.” TV3’s debate decision was based on a scientific poll, and was unbiased, so it wasn’t that absurd.

Bolstering this argument is Justice Young’s botched statistical reasoning. He was wrong to say that the 3.1% margin of error made the minor parties indistinguishable. What he (and the lawyers and most journalists) didn’t realise was that the margin of error shrinks when considering the smaller numbers. They’re more likely to be accurate. For instance, the margin of error for the polling of ACT (1.6%) and United Future (1.4%) is actually about plus or minus 0.8%.

That means Justice Young was right to conclude that ACT and United Future were essentially statistically indistinguishable from each other. But it also means that both are statistically distinguishable from the Progressives on 0.4%.

Ironically, on Justice Young’s reasoning, it may have been rational for TV3 to exclude Jim Anderton, but not Peter Dunne.

So there’s a fair chance that TV3 would win an appeal. But that doesn’t mean the original decision is bizarre or stupid or cavalier. In part it’s because TV3 – who only had a day to prepare its case – didn’t make the most of the available arguments.

Even if Justice Young’s decision stands, it’s very unlikely to usher in a new era of judicial management of the media. True, the door is open a chink for politicians to challenge private media decisions they think are arbitrary and that may undermine democratic rights. And under MMP, where a few votes in key electorates or a fractional shift in party support nationwide can conceivably determine who governs the country, it’s arguable that the media make many decisions that have significant electoral impact.

But Justice Young insisted such cases rarely trigger the court’s powers. His decision is tied closely to the broadcasting framework, so it’s unlikely to affect the print media. It’s hard to see it applying outside election time. Even during election season, how often will a broadcaster make such a manifestly daft editorial decision, in the context of a programme with such powerful democratic relevance?

Sure, other politicians who feel slighted by the media might be tempted to try it on in the courts. But they’re unlikely to get anywhere. For instance, the Destiny Party is now gunning for TVNZ’s Marae programme for excluding them from its scheduled candidates’ debates for Maori seats. Marae’s producer says the debates were restricted to the Labour and Maori parties, who were well ahead in the polls. They made an exception for independent candidate Mere Mangu in Te Tai Tokerau electorate as she was polling well too.

If that’s right, it seems a far cry from the sort of arbitrary media decision-making (and probably the sort of national impact) that Justice Young was talking about in the TV3 case.

Justice Young’s decision doesn’t really have “dangerous implications for a free and robust media in this country” as O’Hara and other media bigwigs contend. If there’s one thing truly guaranteed to damage the media’s role in the democratic process, it’s this sort of self-serving exaggeration from the very people we rely on to deliver accurate and impartial information.

PS. Dean Knight’s analysis of Dunne is here.

Topics: Electoral speech, NZ Bill of Rights Act | 9 Comments »

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