Steven Price

My book

Media Minefield


Guide to NZ Media Law

Official Information Act

Official Information Act


Bill of Rights Act

Media law resources

Feeds (RSS)


« | Main | »

Improving accuracy

By Steven | July 21, 2010

A funny thing happened on the way to loosening the Accuracy standard in the Broadcasting Codes of Practice. It got tightened up instead.

Let me explain. The old Radio code said broadcasters have to be truthful and accurate on points of fact. The TV code was the same. Broadcasters hated it. It meant that they were responsible for every botch they broadcast, no matter how trivial, no matter how much care they took with their facts, and even if the error was made by an apparently reliable and expert source. My favourite example: when Assignment showed a clip of PM Helen Clark (wrongly) saying that full-time tertiary students were not charged interests on their student loans, the BSA upheld an accuracy complaint against TVNZ.

Actually, the BSA seemed to sense this was unfair and some of their other decisions went in the other direction.

So broadcasters were delighted when they were able to negotiate a change to this standard. Now the codes read:

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/or
  • does not mislead

Everyone breathed a sigh of relief. Now broadcasters only had to make reasonable attempts to get it right.

But broadcasters’ delight turned to dismay when they read this decision. The BSA upheld a complaint from Kerry Bolton, former secretary of the NZ National Front. Radio NZ had broadcast an interview (on Chris Laidlaw’s Ideas segment) with Dr Scott Hamilton, who alleged that Mr Bolton was actively promoting anti-Semistism and Holocaust denial.

Mr Bolton denied it. He complained. The BSA asked for RNZ’s evidence. Dr Hamilton supplied some. Mr Bolton rebutted it. The BSA ended up saying, in effect, “well, we can’t tell whether the claims were right or wrong. But since the interview wasn’t live, and since the allegations were so serious, Radio NZ should have made more strenuous efforts to check its facts.”

To some, this may seem kind of sensible. The new standard focuses on the efforts of the broadcasters. The BSA argues that this is what broadcasters were arguing for when they got the standard changed.

To others, this is horrifying. The BSA just upheld a complaint under the Accuracy standard without finding that RNZ had got anything wrong. RNZ argued that it was implicit in the new Accuracy standard that the BSA now had to find both an inaccuracy and a failure to make reasonable efforts to get it right, before upholding a complaint.

RNZ appealed to the High Court. During the course of argument, the BSA’s lawyer agreed that there may even be circumstances in which the Accuracy standard would be breached because of a failure to take reasonable care, even though by the time the complaint was determined, it was clear that the facts were correct! (The BSA may be on slightly stronger ground in situations where it is difficult or impossible to determine the facts, though it is not clear to me that this was really such a case.)

If you’ve been reading this blog before, you’ll know what I’m going to say next. The Bill of Rights Act is surely relevant to resolving this issue. It’s strongly arguable that the BSA’s wide interpretation of the new standard restricted freedom of expression in a way that is not demonstrably justified, in part because of the central harm to free speech values when a state agency penalises speech for its error, and in part because the less restrictive interpretation would essentially serve the same aim. I waited eagerly for those arguments. They never came.

Justice Joe Williams wasn’t very impressed. “I do need you guys to confront these issues,” he said. It’s a bit disappointing that none of you has”. He called for extra submissions on the point.

This is something that I’ve been harping on for some time. In my article with Claudia Geiringer, we lament the failure of agencies exercising power over people’s speech (the Film and Literature Board of Review is another) to apply the Bill of Rights properly.

To be fair, the BSA’s lawyer really only turned up to assist the court by providing some background material, and may have been worried that she’d get a hammering for turning up at all, as there’s a question about the BSA’s role in such appeals. And to be fair to RNZ’s lawyer, he felt that the issue could be resolved without reference to the Bill of Rights, and on one reading, there’s some support for that in Williams J’s decision.

Anyway, the extra submissions were submitted last Monday. (Disclosure: I had a hand in RNZ’s extra submissions). And within a week, Williams J’s decision was out. He agreed with Radio NZ. The scheme of the Broadcasting Act, the wording of the guidelines, and the Bill of Rights all suggested that in order to uphold an inaccuracy complaint, the BSA must first find… an inaccuracy.

Allow me a boast: Williams J said our article was “of material assistance in the development of my approach to this appeal.” That’s four High Court judges in a row who’ve cited it favourably, including one particularly kind judge who did so in a case where it wasn’t really relevant.

Still, the story isn’t over: the case is now back before the BSA. At each stage Mr Bolton has argued vehemently that the allegations were inaccurate. The BSA will have to resolve the dispute now.

Topics: Broadcasting Standards Authority | 4 Comments »

4 Responses to “Improving accuracy”

  1. ross Says:
    July 22nd, 2010 at 8:24 am

    Steven,

    Reading your comments reminded me of RNZ’s interview of “Nathan” by Linda Clark in 2003. It was such a disgraceful piece of journalism. Indeed it is difficult to even describe it as journalism. The BSA agreed. It found that RNZ had breached the principles of balance and fairness and awarded total costs against RNZ of $10,300, quite a large sum which included the complainant’s entire legal costs. The BSA said it was concerned at the “serious disregard” for for the complainant’s rights.

    What surprised me, reading the BSA’s decision in that case, was the position taken by RNZ. It was as if it did not accept that it had done anything wrong! In the more recent Bolton case, could an apology to Mr Bolton have resolved the issue? Having made a complaint against a broadcaster some time ago, a complaint which the BSA upheld, I am struck by the stubborness of broadcasters to accept even the possibility that they might have erred. An apology seems to be out of the question.

    Broadcasters could save themselves a lot of time (and money) if they simply accepted that sometimes they do get it wrong. In the Bolton case, RNZ (or at least Dr Hamilton) made some pretty serious allegations. Surely it is up Dr Hamilton to prove that they’re true and accurate? The argument that they have not been proven to be inaccurate is a little disingenuous.

    [Note from Steven: the case Ross discusses is here: http://www.bsa.govt.nz/decisions/2004/2004-115.htm
    It involved an interview with another boy accusing Peter Ellis of abuse. The boy was allowed to remain anonymous, his accusations were very serious but rather vague, and there were issues over whether Peter Ellis had been given a proper chance to respond.]

  2. ross Says:
    July 22nd, 2010 at 8:45 am

    Steven,

    I note that in respect of the Bolton case, the BSA reported that:

    “RNZ argued that Dr Hamilton’s comments were not statements of fact, but an expression of expert opinion and, as such, the accuracy standard did not apply”.

    That’s a curious defence. It’s as if RNZ concedes that the statements were not accurate (or not necessarily accurate) but it doesn’t matter because Dr Hamilton is entitled to express his opinion. Well, yes, he is entitled to express his opinion but RNZ should have advised listeners that Dr Hamilton’s comments were merely his opinion and were not necessarily factual. It didn’t do that.

  3. Steven Says:
    July 22nd, 2010 at 11:41 am

    Ross, RNZ argued that the accuracy standard didn’t apply because it only relates to “news, current affairs and factual programmes.” RNZ said Ideas was an opinion-based segment. The BSA rejected this argument, and RNZ did not challenge this on appeal.

    As for an apology, I think you’re jumping the gun a bit. RNZ does not accept it got this wrong. The BSA did not find that it got it wrong. One of RNZ’s arguments was that it hadn’t been properly given a chance to put all of its arguments (though the judge didn’t address that).

    Another High Court decision found that there is no burden of proof on the broadcaster to prove accuracy.

    Or should broadcasters apologise to everyone who makes a complaint?

  4. ross Says:
    July 22nd, 2010 at 6:31 pm

    Steven,

    You ask, rhetorically perhaps, if broadcasters should apologise to everyone who makes a complaint. I think you miss my point that broadcasters could and should be willing to admit when they’re wrong. In the “Nathan” case I referred to, RNZ behaved very badly but didn’t apologise until the BSA ordered them to. There was nothing to stop RNZ from admitting it made mistakes prior to the BSA becoming involved. Instead, it made excuses, among them saying that Ellis did not want to take part in the interview. This was misleading and irrelevant. (By the way, “Nathan” was not a boy at the time of the interview; he was in his 20s.)

    I am aware that RNZ argued the accuracy standard didn’t apply in the Bolton case because it only relates to “news, current affairs and factual programmes.” So why didn’t RNZ make it clear prior to and/or after the Ideas segment that it was neither news, current affairs or factual? When I hear a so-called expert denigrating someone by suggesting they’re a Holocaust denier I don’t know about you but I expect those words to be true. And I certainly expect that expert to be able to back up their claims with evidence. Otherwise listeners will become cynical and take what is said with a grain of salt.

Comments

You must be logged in to post a comment.