RODNEY HIDE AGANST NEW ZEALAND HERALD

Case Number: 2492

Council Meeting: MARCH 2016

Verdict: Upheld in part

Publication: New Zealand Herald

Ruling Categories: Accuracy
Social Media
Unfair Coverage

Overview

  1. Rodney Hide complains that an article published by the New Zealand Herald was unfair and inaccurate, in breach of Press Council Principle 1. He also complains about a tweet by the author of the article.

2. The Press Council does not uphold the first complaint. It upholds the second complaint, noting that appropriate action has been taken to remedy it.

Background

3. On January 16, 2016 the New Zealand Herald published an article reporting and commenting on proceedings in the High Court involving David Henderson.

4. Mr Hide had supported Mr Henderson in earlier litigation and was taking an interest in the proceedings. They were relevant to his concerns about access by authorities such as IRD and the Official Assignee to customer information held by Xero. He had expressed those concerns in material written for the National Business Review (NBR), and he also wrote more widely on related issues for theHerald on Sunday.

5. Before publication, Mr Hide was consulted by the author of the article and explained his views on the proceedings and their effect.

6. The article gives brief details of the background to the proceedings before reporting on remarks made by Associate Judge Osborne both in hearing (and allowing) an application by the Official Assignee to lift a non-publication order and in the earlier proceedings to which the non-publication order related. It goes on to report comment by Mr Hide and by the parties to the proceedings.

7. Referring to the earlier proceedings, the article said “But this hearing, undercutting many of Hide’s claims, was suppressed and covered by a non-publication order . . . .”

8. On January 13, shortly before publication of the article, its author tweeted “Short write-up of court ruling morphed into 1600-word Greek-style epic featuring crimes, c*nts, lulz and ex-MPs. In @nzheraldbiz Saturday”.

The Complaint

9. Mr Hide complains that it is untrue to say that his claims were undercut. He says those claims were not identified in the January 16 article, but when he sought clarification from the reporter he was told that they were claims made in NBR articles. Mr Hide then identified his article published on November 6, 2015 as the main source of the “claims”.

10. In complaining to Fran O’Sullivan, Editorial Director - Business of theNew Zealand Herald, Mr Hide set out in some detail the claims he considers he made in that article and states that not one of them was undercut by the judgement. He says “Ahead of publishing my column I consulted two barristers to reassure myself that my interpretation was correct.” He went on to say that while the two judgements were critical of him, they did not undercut any claim made in his article of 6 November. The reporter knew the claim of undercutting was false as Mr Hide had supplied him with repeated explanations prior to publication.

11. Commenting on Ms O’Sullivan’s statement (in response to his complaint of factual inaccuracy) that the article was “clearly written as a feature read including a substantial component of interpretation and analysis.” Mr Hide says he considers the New Zealand Herald’s response to his complaint constitutes an admission of factual inaccuracy and the only remaining question is whether the statement about undercutting was one of fact or opinion.

12. Referring to the pre-publication tweet, Mr Hide says it lacks accuracy, fairness and balance. He considers it offensive and displaying a lack of professionalism by a senior journalist.

The Response

13. The first response to Mr Hide’s concerns about the article came from the author of it. He notes that he and Mr Hide clearly came to different interpretations of the two Court rulings and then set out at some length the excerpts from those rulings which led him to the conclusions expressed in the article.

14. After Mr Hide had complained to the Press Council, Ms O’Sullivan provided a further response. On the question of accuracy, she largely repeated the contents of the earlier response. She noted that the article was written to include a substantial component of interpretation and analysis, and expressed the view that the reporter’s choice of words amounted to a fair and reasonable assessment of the Judge’s rulings.

15.Turning to the tweet, Ms O’Sullivan explained that the strong language reflected a quote (deleted before publication) in the draft of the article. The quoted remarks were made by Mr Henderson and the tweet was neither directed at Mr Hide nor was there any suggestion that it was directed at him.In her view the tweet was regrettable. It has been deleted and the reporter has been reminded of social media policy and acceptable use.

The Decision

16. As Mr Hide has noted, factual material published by the media must be fair, accurate and balanced, but the standard is different for opinion material, so long as it is clearly presented as such.Ms O’Sullivan submits that “while there is some degree of interpretation in the reporter’s choice of words, we stand-by that choice as a fair and reasonable assessment of the judge’s ruling”.

17. The Press Council has been supplied with a full copy of Associate Judge Osborne’s ruling on the application to lift the non-publication order, and of the earlier ruling.Mr Hide was not a party to either proceedings and any reference to him and his views is peripheral. However, in the second ruling there is a reference to Mr Hide’s NBR article. The Judge recorded that the article set out Mr Hide’s view of factual matters and the law, and continued “He concludes that the Assignee, in obtaining information from Xero, acted outside her powers and that Xero did not act as a custodian of its customers’ data”. Mr Hide has not disputed that summary of his views. The Judge later refers to his earlier ruling (to which the non-publication order related) as “a judgement of this Court which upheld the lawfulness of the Assignee’s s171 notice”. The s171 notice was the means by which the Assignee obtained information from Xero. On any reasonable interpretation, that is a finding that the Assignee did not act outside her powers.

18.It seems clear that while the Judge may not have gone through each individual claim made by Mr Hide and assessed its validity (and there is no reason why he should have done so) his conclusions generally support the view that Mr Hide was wrong at least in his argument that the Assignee had acted unlawfully. In this context it seems both accurate and reasonable to say that Mr Hide’s claims were undercut.

19. The article in question was not an opinion piece. However, in reporting on complex and contentious issues in an area where complete comprehension requires specialist knowledge – and this is such a case – it is inevitable that even when not expressing an opinion reporters will select, shape and interpret their material to make it meaningful to their readers. Simplification is not necessarily inaccuracy, and the fact that the reporter did not enumerate Mr Hide’s claims and the arguments for and against them before saying generally that they were undercut does not amount to inaccuracy.

20. Mr Hide was consulted before the publication of the article and the final article included some of his comments – certainly enough to provide balance and to indicate to a reader that he did not accept that his arguments had been undercut.

21. Turning to the complaint about the tweet, it is worth noting that this is one of the first times the Press Council has been called on to determine a complaint about this form of communication.

22. The tweet was effectively advance publicity for the article in the same way that a poster or headline is advance publicity, with the difference that the tweet was made before the article was in final form and did not go through any sort of editorial process. However, it was clearly made by the reporter in his capacity as a reporter for theNew Zealand Herald and the editor has properly taken some responsibility for it and reminded the reporter of his obligations. Moreover the tweet has been deleted, although apparently it remained accessible for some weeks.

23. For the sake of clarity, the Press Council records that the same standards apply to a tweet of this nature as apply to other published material. The tweet in question in this case was unprofessional in its inaccuracy and use of unacceptable language and certainly did not conform to the highest professional standards.

The complaint of a breach of Principle 1 is not upheld.

The complaint about the tweet is upheld, but it is noted that the business editor of theNew Zealand Herald has taken appropriate action and no more is required of her.

Press Council members considering the complaint were Sir John Hansen, Liz Brown, Chris Darlow, Peter Fa’afiu, Jenny Farrell, Sandy Gill, Marie Shroff, Vernon Small, Mark Stevens and Tim Watkin.

John Roughan took no part in the consideration of this complaint.