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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.
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