Comprehensive Notes on the Broadcasting Standards Authority and Media Regulation

Administrative and Course Overview

• Technical Setup Dispute: The session began with the speaker experiencing difficulty accessing files in Lecture Theater 1 ($L T 1$) located in the old government buildings annex. Communication with IT services was required to resolve an issue where the file directory showed unfamiliar documents rather than the lecturer's PowerPoints.
• Syllabus Schedule:
  • Current focus: Finalizing the Broadcasting Standards Authority ($BSA$) and beginning Source Protection.
  • Next Week: Finishing Source Protection and covering Copyright.
  • Final Session (Friday): Revision and discussion regarding the upcoming test.

The Broadcasting Standards Authority (BSA): General Framework

• Institutional Status: There is uncertainty regarding the long-term existence of the $BSA$, with potential changes slated for next year ($2025$).
• Reference Material: Students are encouraged to study the $BSA$ "code book," which contains standards, guidelines, and commentary that digest thousands of cases dating back to $1990$. The lecturer also references his own book, published approximately $20\,\text{years}$ ago, which summarizes historical standards.

The Accuracy Standard

• Scope: Accuracy requirements apply specifically to news, current affairs, and factual content (e.g., documentaries). It does not apply to fictional content like movies.
• Materiality Threshold: A complaint will only be upheld if the error is on a material point of fact. Trivial or technical errors that do not affect the audience's broad understanding of the program as a whole are excluded.
• Obligation to Correct: Broadcasters must fix significant errors in a reasonable manner and time frame.
  • Correction Methods: Broadcasters often argue that a website correction is sufficient ($TV\,New\,Zealand$ vs website-only), though this is legally debatable if the error was broadcast widely. The seriousness of the error, ongoing updates, and identification timing dictate the correction type.
• Burden of Proof: Once challenged, the heat is on the broadcaster to provide evidence that their content was accurate.

Analysis, Comment, and Opinion Exception

• General Rule: The accuracy standard does not apply to statements clearly distinguishable as analysis, comment, or opinion.
• Determinative Factors:
  • Language used.
  • Program type (e.g., "loosey-goosey" talkback vs. authoritative news).
  • Role and reputation of the speaker.
  • Subject matter and its importance.
  • Attribution and evidence provided.
• Case Example: Martin Devlin (Sports Breakfast Radio):
  • Devlin stated that a member of $Team\,New\,Zealand$ had "upped and left" but it "hadn't come out yet."
  • Despite the factual nature of the claim, the $BSA$ ruled the statement was clearly opinion/analysis because the talkback context is "loose" and "gossipy," thus exempting it from the accuracy standard.
• Foundation of Opinion: There is an "exception to the exception": if a commentary or opinion is based on a fundamentally wrong fact as its foundation, the accuracy standard applies. For example, if a criticizes a government layoff of $8,700$ workers by claiming it is actually $25,000$, the inaccuracy of that foundation void the opinion exemption.

Reasonable Efforts and Professional Standards

• Interviews and External Experts: If a broadcaster interviews an expert who provides inaccurate information, they might be cleared if they made "reasonable efforts" to ensure accuracy.
  • High Effort: Selecting a reputable expert with no obvious "axe to grind."
  • Low Effort: Selecting a "loose cannon" or someone with limited expertise.
• Live vs. Recorded: Broadcasters are given more slack for live broadcasts ($Morning\,Report$) compared to prepared, edited segments where they had time to verify details.
• The Bolton Case (Kerry Bolton vs. Radio New Zealand):
  • An academic identified Kerry Bolton as a key member of the holocaust denial movement on a Sunday morning current affairs program.
  • The $BSA$ initially upheld the complaint for a failure of the broadcaster to take "reasonable care" despite not confirming the statements were actually false.
  • The High Court overturned this, establishing a mandatory two-part test: the $BSA$ must find $(a)$ an actual, material inaccuracy, and $(b)$ a failure to take reasonable care. A failure of care alone cannot create liability.

The Balance Standard (Controversial Viewpoints)

• Definition: Broadcasters must make reasonable efforts to present significant viewpoints on controversial issues of public importance within the period of current interest.
• Purpose: To enable the audience to arrive at an informed and reasoned opinion by considering competing views.
• Rationale Clause: In the code book (though not the statute), it is stated balance complaints won't be upheld if viewers can reasonably expect to see other views in other media coverage.

Case Study: Cindy Quiro vs. Michael Laws (The Balance Paradox)

• Scenario: Host Michael Laws spent $3\,\text{hours}$ on talkback radio attacking a child poverty report released by the Children's Commissioner Cindy Quiro and $Barnardo's$.
• Laws' Comments: He called the report "academically lazy," "crap research," and "subversive." He attacked Quiro's ethnicity, calling her of "Maori extraction," and labeled her an "apologist for dropkick moms and deadbeat dads."
• The Omission: Laws allegedly had not read the report, which actually recommended full-time work and medical interventions, rather than just more money.
• BSA Decision: The complaint was not upheld. The $BSA$ ruled that because the show did not "purport to be a serious and even-handed examination," there was technically no "discussion" of an issue, and thus the balance standard was not triggered.

The Fairness Standard

• General Rule: Broadcasters should deal fairly with any individual or organization taking part in or referred to in a program.
• Scope: Unlike accuracy and balance, this applies to all programs, not just news or factual content.
• Test: Whether the broadcast created an "unfairly negative impression."
• Public Interest Defense: A balancing act between the importance of the speech and the potential harm to the person's reputation.
• Specific Fairness Requirements:
  • Informed Consent: Participants must understand their role in the program.
  • Right to Comment: If a person is criticized, they should be given a fair chance to respond.
  • Doorstepping: Ambushing people with cameras (e.g., $Morgan\,Fahey$ case). Broadcasters should try all legitimate contact methods (phone, email) before resorting to a doorstep.
• Public Figure Threshold: In the Cindy Quiro case, the $BSA$ ruled that public figures must tolerate the "most trenchant criticism." Unless the criticism enters "abusive personal territory" (personal abuse), it is generally considered fair play.

Privacy Standard in Broadcasting

• Two Strands:
  1. Publication of Private Information: Disclosing sensitive private details (e.g., $Hosking$).
  2. Intrusion into Private Affairs: Intentional intrusion into solitude or seclusion (e.g., $C\,v\,Holland$).
• Nexus Requirement: There must be a direct link (nexus) between the private details disclosed and the public interest being served. A program cannot use a general public interest topic (like corruption) to justify irrelevant private details (like a sex life).

Discrimination and Denigration

• Mini Hate Speech Standard: Broadcasts should not encourage discrimination or denigration based on sex, race, sexual orientation, age, disability, status, or religion/politics.
• High Threshold: Content must be "nasty," showing a "high level of condemnation" or devaluing the reputation of a group.
• Historical Examples:
  • Triangle Television: Voices of Islam program called homosexuality "filthy" and argued for the death penalty (Upheld).
  • Michael Laws on Exclusive Brethren: Called them a "nutter sect" and suggested they should be "denackered so they can't breed" (Upheld).

Offensive and Disturbing Content (Taste and Decency)

• Core Elements: Swearing, nudity, sex, and violence.
• Contextual Factors: Warnings, time of broadcast, and audience expectations (e.g., an edgy adult cartoon vs. midday news).
• Talkback and the "Dump Button": Talkback producers operate on a roughly $10\text{-second}$ delay. This allows them to hit a "dump button" to silence unexpected offensive comments before they hit the airwaves. Broadcasters are given more leeway for unexpected live comments if the host immediately redresses the issue.

NZBORA and Broadcast Regulation

• TBNZ v West Case: Establish that the $BSA$ must provide a specific justification when upholding a complaint because it restricts the right to freedom of expression.
• Hierarchy of Speech: Political speech and investigative journalism require a significantly higher burden of harm to justify restriction compared to entertainment programs like "soaps."

Case Study: Heather Du Plessis-Allan (COVID-19 Misinformation)

• Issue: Du Plessis-Allan told listeners not to avoid Oporiki (Aporuki), claiming the Bay Of Plenty vaccination rate was $92\%$.
• The Reality: While the first-dose rate for the region was $92\%$, the specific Oportiki rate was only $81\%$, and the critical double-dose rate was only $66\%$.
• BSA Ruling: The complaint was upheld. Despite her "provocative opinion" being protected, the dissemination of misleading health information during a pandemic was a significant harm that outweighed her free speech right.

The Media Council

• Status: An industry body, not statutory. Maintains press freedom and standards for newspapers, magazines, and news websites (including digital content from $TVNZ$).
• Composition: $6$ public members (often a former judge as chair) and $5$ industry members.
• The Waiver: Complainants must sign away their right to sue the media outlet for defamation or judicially review the council's decision (though the latter is likely legally invalid).
• Remedies: The council cannot award costs or damages. They can only order the publication of a summary of their decision with "fair prominence," a retraction, or a right of reply.

Questions & Discussion

• Student Question on Attributed Statements: If a broadcaster quotes someone else's factual error without endorsing it, is it a breach?
  • Response: It depends on "reasonable efforts." If the quoted person is an expert and there is no reason to doubt them, the broadcaster is likely safe. If it's a "loose cannon," the broadcaster is liable.
• Student Question on "Discussion" definition: Why did Laws not qualify as a discussion?
  • Response: The $BSA$ logic was that since the audience didn't expect a serious, even-handed exchange, the $3\text{-hour}$ tirade didn't meet the technical definition of a "discussion" under the balance standard.
• Student Question on Public Figures: Is an author of a report a public figure?
  • Response: It is a spectrum. A politician or Cindy Quiro is at the extreme end (requiring personal abuse to breach fairness). A lesser-known academic has more fairness protection, though the boundary is often argued by "limelight" or power status.