Lowes v Mediaworks TV Limited

[2017] NZHC 1130

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2017-485-7 [2017] NZHC 1130

UNDER	section 18 of the Broadcasting Act 1989
IN THE MATTER	of an appeal from a decision of the Broadcasting Standards Authority (No 2016-072 dated 2 December 2016)
BETWEEN	ARCHIBALD NORMAN LOWES Appellant
AND	MEDIAWORKS TV LIMITED Respondent

Hearing:	17 May 2017
Counsel:	A N Lowes in Person T E G Turton for Respondent A E Scott-Howman and N L Hickman for Broadcasting Standards Authority
Judgment:	29 May 2017

JUDGMENT OF THOMAS J

Introduction

[1]      Mr   Lowes   made   a   formal   complaint   to   MediaWorks   TV   Limited (MediaWorks)   following   an   item   on   TV3’s   Paul   Henry   on   4   July   2016, Independence Day of the United States of America (the United States).  His concern was that Mr Henry, in his interview with Mr Gilbert, then the United States Ambassador to New Zealand, referred to the United States having claimed independence in 1776 “from England”.   A little later in the interview, Mr Henry referred to a comment the Rt Hon Margaret Thatcher had made when she was the “Prime Minister of England”.  Both comments were inaccurate.  The United States

obtained independence from Great Britain.  Mrs Thatcher was the Prime Minister of

LOWES v MEDIAWORKS TV LIMITED [2017] NZHC 1130 [29 May 2017]

the United Kingdom of Great Britain and Northern Ireland (the United Kingdom). Mr Lowes views both matters as being of constitutional importance.  His complaint to MediaWorks was on the grounds of accuracy and discrimination and denigration.

[2]     The MediaWorks Standards Committee (the Committee) accepted the inaccuracies but considered they were made in the context of framing Mr Henry’s discussion with the United States Ambassador about the celebration of Independence Day.  On that basis, the Committee considered the inaccuracies were immaterial in the context of the item.

[3]      The Committee considered the errors were genuine and not intended to discriminate against or denigrate the reputation of a class of people.   For those reasons, the Committee declined to uphold Mr Lowes’ complaint.

[4]      Mr Lowes then complained to the Broadcasting Standards Authority (the BSA).   By its decision dated 2 December 2016 (the Decision), the BSA did not uphold the complaint.1   Mr Lowes has now appealed against the Decision.

Approach to appeal

[5]      Pursuant to s 18(4) of the Broadcasting Act 1989 (the Act), this Court must treat Mr Lowes’ appeal as one from the exercise of a discretion.   This means the Court must be satisfied the BSA, as decisionmaker, made an error of principle, failed to take into account all relevant matters, took into account irrelevant matters or was plainly wrong.2

The interview

[6]      The  complaint  concerns  Mr  Henry’s  introduction  of  Mr  Gilbert,  when

Mr Henry began by saying:

The year was 1776, the 4th of July and the United States just claimed its independence  from England.    Every  year  since Americans  celebrate  the historic event like no other citizens celebrate anything at all, it is the most extraordinary thing if you’ve ever been there on the 4th of July.   So what

1      Lowes v MediaWorks TV Ltd Decision No 2016-072, 2 December 2016.

2      May v May (1982) 1 NZFLR 165 (CA) at 169-170.

better way to celebrate than to talk to the US Ambassador to New Zealand

Mark Gilbert. Mark, good morning to you, and happy celebrations.

[7]      After Mr Gilbert returned the greeting, Mr Henry continued:

You know I’ve been reminded of a quote that Margaret Thatcher made many, many years ago when she was the Prime Minister of England, she said “Europe was great by history, the United States was created by philosophy”. And that was very must true, wasn’t it?

[8]      Mr Gilbert responded by referring to the recognition in the Declaration of

Independence of all men being equal, saying that remained important to Americans

240 years later. And there was some further discussion on that topic.

[9]      Mr  Henry  then  asked  how  Mr  Gilbert  and  other  expatriate  Americans celebrated Independence Day.  Mr Gilbert described celebrations at the Embassy and events  in Auckland  and  Wellington,  noting  the  celebrations  in  2016  included  a celebration of 100 years of the National Park Service.   Some discussion on that ensued.

[10]     Mr Henry then commented about the level of patriotism in the United States and why it might be so.   Mr Gilbert discussed the context of the Declaration of Independence and the seriousness with which Americans viewed those inalienable rights.  The links between the United States and New Zealand were also discussed. The interview concluded with Mr Henry making a light hearted comment about his attempts to obtain a green card.

[11]     It is fair to say there was no extensive examination of any of the range of topics  covered  in  the interview.   The interview lasted  slightly longer  than four minutes.

Broadcasting Standards in New Zealand Codebook

[12]     The Act requires broadcasters to maintain programmes and their presentation to standards which are consistent with a range of matters including any applicable

approved code of broadcasting practice.3

3      Broadcasting Act 1989, s 4.

[13]     One  of  the  functions  of  the  BSA is  to  encourage  the  development  and observance by broadcasters of codes of broadcasting practice in relation to, amongst other things, fair and accurate programmes and procedures for correcting factual errors and redressing unfairness.4    The BSA is to develop, issue and approve such codes of practice.5

[14]     The April 2016 Broadcasting Standards in New Zealand Codebook is the current code of practice.  It sets out codes for each broadcasting platform: radio, free to air television, and pay television.   It describes the standards as the basic rules which apply, with guidelines informing the interpretation.  It says:6

In relation to each code, this Codebook sets out the standards and guidelines, and elaborates on these in the commentary.  It is the wording of the standard and its objectives which are paramount when determining whether the standard has been breached.   Guidelines and commentary inform the interpretation of the standard.  They will allow flexibility in application and interpretation if circumstances or context require.

[15]     Two standards applying to free to air television are relevant in this case. Standard 6, which falls under Part 1 relating to social responsibilities, provides:7

Broadcasters should not encourage discrimination against, or denigration of, 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.

[16]     Standard  9,  which  falls  under  Part  2  relating  to  information  broadcast, provides:8

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

·    is accurate in relation to all material points of fact

·    does not mislead.

[17]     Each standard is followed by guidelines.

4      Section 21(1)(e).

5      Section 21(1)(f) and (g).

6      Broadcasting   Standards  Authority   Broadcasting   Standards   in   New   Zealand   Codebook

(1 April 2016) at 8.

7      At 37.

8      At 39.

The Decision

[18]     The BSA began by assessing the complaint relating to Standard 9, noting the objective was to protect audiences from being significantly misinformed.

[19]     The BSA observed the accuracy standard is concerned only with material accuracy and unimportant points unlikely to affect the audience’s understanding of the programme as a whole are not material.9

[20]     The BSA noted MediaWorks had acknowledged Mr Henry’s error.  The BSA observed it would have expected a greater degree of care on this topic from the broadcaster but nevertheless agreed it was not material in the context, saying:10

… This was a light-hearted item concerned primarily with how Americans, including expats such as the Ambassador, celebrate Independence Day.  The item was not focused on the historic detail of America’s independence, and Mr Henry’s comments simply provided background context for the brief and general discussion.   Viewers would not have been misled by Mr Henry’s imprecise remark, and would have appreciated his intended meaning.  The point being made was not lost.

[21]     The  BSA  then  addressed  the  complaint  relating  to  Standard  6  that  the broadcast  encouraged  the denigration of or discrimination against people of the United Kingdom who were not English as a section of the community.   The BSA noted the objective of the standard is to protect sections of the community from verbal and other attacks.  It referred to Mr Lowes’ submission that the comments at issue suggested “the class of people having the particular attribute of being English are superior beings” and amounted to “virtual ethnic cleansing” of others in the United Kingdom who were not English.

[22]     Again, the BSA observed that the comments at issue amounted to careless errors but agreed there was no suggestion Mr Henry intended to denigrate or discriminate  against  the  people  of  the  United  Kingdom  who  were  not  English,

saying:11

9      Guideline 9(b).

10     Lowes v MediaWorks TV Ltd, above n 1, at [9].

11 At [14].

… Mr Henry’s comments were intended to provide a brief and thought- provoking context to his interview with the Ambassador, and did not carry the level of condemnation required to find a breach under the standard.

Mr Lowes’ appeal

[23]     Mr Lowes presented several “issues” with the BSA’s decision.  In relation to

Standard 9, Mr Lowes contended the BSA:

(a)      acted on a wrong principle when it considered Mr Henry’s errors were

material;

(b)      failed to take into account relevant matters of constitutionality;

(c)      took into account irrelevant matters, namely the “Prime Minister of

England” is commonly used; and

(d)      was plainly wrong in its decision.

[24]     In relation to Standard 6, Mr Lowe submitted the BSA:

(a)      acted on a wrong principle when it considered  Mr Henry had no intention to denigrate or discriminate;

(b)failed to take into account the International Federation of Journalists’ Declaration   of   Principles   on   the   Conduct   of   Journalists   (the Journalists’ Principles); and

(c)      was plainly wrong in its decision.

Analysis

[25]     In respect of the complained breach of the accuracy standard, the issue is whether the BSA erred in its conclusion the inaccuracy was not material in context.

[26]     It is clear the BSA considered relevant matters before it, including Mr Lowes’

original complaint and subsequent correspondence to the Committee and his referral

to the BSA.   Mr Lowes’ documentation included material relevant to the United Kingdom’s  constitutional  status  and  that  of  Mrs Thatcher  when  she  was  Prime Minister of the United Kingdom.

[27]     There is nothing to suggest that the Authority failed to consider relevant matters.

[28]     In  respect  of  the  question  as  to  whether  the  BSA considered  irrelevant matters, Mr Lowes referred to the BSA’s comment:12

Viewers would not have been misled by Mr Henry’s imprecise remark and would have appreciated his intended meaning.  The point being made was not lost.

[29]     While  the  BSA  might  be  correct  that,  despite  Mr  Henry’s  imprecision, viewers would have appreciated his intended meaning, his comments also had the potential to reinforce what might be a common  misunderstanding.   I make this observation given the objective of the standard is to protect audiences from being significantly misinformed.  The Decision, however, did not indicate the BSA had a specific view on common usage which was improperly taken into account.

[30]     There was no error in principle in the BSA considering the materiality of Mr Henry’s statements under both limbs of Standard 9.13    I consider materiality under the wider question of whether the BSA was plainly wrong.

[31]     Mr Lowes contended Mr Henry’s statements involved material inaccuracy due to the constitutional relevance of using the correct terminology.   The point, however, is the materiality of the inaccuracy in its context.14

[32]     Mr Turton, who appeared for MediaWorks, pointed out that Paul Henry was a programme broadcast during the morning television timeslot.   It was light hearted and irreverent, he said, combining news and lighter items but there was no real depth or detail in the coverage of many matters.   He emphasised that the whole of the

interview in question was only around four minutes long.

12 At [9].

13     McDonald v Television New Zealand Ltd [2012] NZHC 1030 at [25] and [27].

14     Guideline 9b.

[33]     While that may be the case, the need for accuracy is more important in a programme which includes news items than for example in a purely entertainment focused broadcast.  Mr Henry’s remarks were made in the introductory section of the interview,  and  it  is  reasonable  to  expect  the  introduction,  which  provides  the platform for the interview, to be accurate.  It is true, however, that the interview was not  about  independence  of  the  United  States  as  such,  rather  it  was  about Independence  Day:  how  it  is  celebrated,  the  principles  associated  with  the Declaration of Independence and their enduring importance to the people of the United States.  There were also, as noted above, other matters touched upon in what was a very brief interview.

[34]     Seen in context, therefore, I am satisfied the BSA was not plainly wrong in its conclusion that the inaccuracy was not material in the context.

[35]     As  to  whether  the  broadcast  discriminated  against  or  denigrated  those subjects of the United Kingdom who are not English, there was no error in the BSA’s approach.

[36]     The BSA did not make an error of principle, accurately noting the objective of  Standard  6  and  level  of  condemnation  required.    The  BSA  was  under  no obligation to consider any of the Journalists’ Principles, particularly Principle 7,15 which in any event does not state a lower threshold for discrimination than that applied.   Any denigration or discrimination could only have been inferential and there is nothing in the interview which, even by inference, could be considered as

encouraging the different treatment of members of a particular section of the community to their detriment or devaluing the reputation of a particular section of the community.

Conclusion

[37]     For these reasons, the appeal is dismissed.

15     International Federation of Journalists Declaration of Principles on the Conduct of Journalists (1954),  Principle  7:  “The  journalist  shall  be  aware  of  the  danger  of  discrimination being furthered by the media, and shall do the utmost to avoid facilitating such discrimination based on, among other things… political or other opinions, and national or social origins”.  Mr Lowes also referred to Principle 1 and Principle 5.

[38]     As to the question of costs, it is worth noting that MediaWorks has issued new guidance to journalists as to how they refer to the United Kingdom and Great Britain to ensure the mistake will not be repeated.  Mr Lowes acknowledged that, although pointed out a similar error in a recent news broadcast on TV3.

[39]     I refer to this, given Mr Turton’s acknowledgement that MediaWorks does

value the role viewers play in drawing attention to mistakes and inaccuracies.

[40]     In all the circumstances, MediaWorks might well consider costs should lie where they fall.

[41]     Finally, I thank Mr Scott-Howman for his attendance on behalf of the BSA

and the assistance he offered the Court.

Thomas J