SKY TV AGAINST NEW ZEALAND HERALD

Case Number: 2547

Council Meeting: OCTOBER 2016

Verdict: Not Upheld

Publication: New Zealand Herald

Ruling Categories: Balance, Lack Of
Columnists
Comment and Fact
Conflict of Interest
Unfair Coverage

Overview

1. The complaints against both the New Zealand Herald and Stuff arise from a commercial dispute between New Zealand’s major pay-per-view TV Company and the two major news organisations which produce theNew Zealand Herald, The Dominion Post, The Press and other publications. This commercial dispute involves ongoing legal proceedings and consideration of New Zealand copyright law. As the Council has made clear on a number of occasions, it is not in a position to rule on matters of copyright.

2. Although the articles complained of cover similar territory and the Sky complaints have common themes, in the interests of clarity we will deal with each dispute separately.

The Complaint

3. Sky TV complains against four articles, as follows:

i)Heather du Plessis-Allan, 31 July 2016 :
Breaches of Principles 1, 4 and 5

ii)Sky’s limit over restrictive rules, 7 August 2016 :
Breaches of Principles 1, 4, 5 and 10

iii)Athletes out of picture on sponsorship, 7 August 2016 :
Breaches of Principles 1 and 10

iv)Anti-siphoning laws need to be reconsidered, 6 August 2016 :
Breaches of Principles 1, 4 and 5


4. Sky’s complaint was forwarded by Kirsty Way, its Communications Director. It takes a somewhat scattergun approach alleging breach of a number of Press Council principles, although this approach is said to be clarified by an attachment which gives examples relied on by Sky in the articles. It also gives Sky’s view of the issues that arise. As best we are able, we identify the complaints as follows:

i)Heather du Plessis-Allan, 31 July 2016 :
Breaches of Principles 1, 4 and 5

ii)Sky’s limit over restrictive rules, 7 August 2016 :
Breaches of Principles 1, 4, 5 and 10

iii)Athletes out of picture on sponsorship, 7 August 2016 :
Breaches of Principles 1 and 10

iv)Anti-siphoning laws need to be reconsidered, 6 August 2016 :
Breaches of Principles 1, 4 and 5

5. In each case, both in a table and in a letter of complaint, Ms Way gives what she describes as examples of issues under various Principles, in particular Principle 1.

Sky TV’s Position

6. At an overall level, Sky’s complaint is that the coverage of this commercial dispute has been treated by theHerald in a manner that is unfair to Sky’s position and promotes the commercial interests of theHerald and NZME over those of Sky. Sky says that as a consequence there is a breach of Principle 1 relating to accuracy, fairness and balance. There appears to be a repeated concern that there is insufficient coverage of Sky’s position, and, also fails to mention that viewers will have the opportunity to see free-to-air coverage of the Olympics on Prime. It is also said that Ms Way complains that Sky should have been asked for comment on a number of matters. Overall, it is said that the lack of accuracy and the lack of specific request for comment leads to an imbalance.

7. In relation to matters of opinion, Ms Way relies on Principles 4 and 5 and says the relevant articles have presented clear opinion pieces as factual. This includes what she maintains is an inaccuracy, such as an incorrect assumption that a Sky subscription is needed to watch the games.

8. Finally, Ms Way and Sky rely on Principle 10 to maintain that it is for the journalist to be a public watchdog and maintain independence at all times. It is said that where a lack of independence cannot be avoided, it needs to be clearly disclosed. Ms Way says in a situation where a publication is commenting on a dispute in which it is directly involved it requires that either the publication refrain from commenting if it cannot do so in a balanced or independent way, or the publication and journalist in question clearly disclose its interest in the matter.

The Response

9. On behalf of the Herald, the managing editor Shayne Currie responds to each of the specific points made by Ms Way.

10. He first dealt with Principle 10, and said it is not designed to cover rare situations in which the publisher is itself directly involved as a participant. Rather, he submits, Principle 10 is to ensure the news media is not beholden to other parties. He accepted that a newspaper cannot be strictly “independent” when reporting on a newsworthy matter in which it is itself involved. In relation to the news stories he says there is no breach of Principle 1, as the articles are not inaccurate, unfair and unbalanced, and in each case Sky was given the opportunity to comment, and did so. He says the two news articles do not breach principles 4 or 5.

11. In relation to the Heather du Plessis-Allan column, the editor submits it is clearly opinion and its focus is far removed from the commercial dispute; rather that the writer was disenchanted with the Olympics for a number of reasons.

12. Finally, he says the editorial in the Herald on Sunday, while not labelled ‘opinion’ was clearly opinion from the language used. He also points out that as soon as issues were raised, a clarification was inserted to make it clear it was an opinion piece.

The Decision

13. We have set out the parties’ position in brief above, but in our decision will deal more fully with matters of concern. We will do this chronologically, dealing with the individual articles.

Heather du Plessis-Allan, 31 July 2016

14. This is clearly labelled as the writer’s opinion. The headline gives her name, and then continues “Why I won’t watch the Olympics”.

15. The article starts with a happy memory of falling in love with the Olympics when the author was 11 years old. It then continues to document the author’s growing disenchantment with the Olympics because of the scourge of doping. After detailing such matters, she continues:

It’s the elitism that has crept into a [sic] event that was originally meant for amateur gentleman [sic]. It’s the picking and choosing of sports that, often, only the wealthy can participate in.

It’s the broadcaster charging me huge amounts of money for a TV deal so I can watch the athletes my taxpayer dollars have supported as they train.

No, thank you, Sky, I’d rather not watch.

16. This is clearly an expression of opinion, and the reasons for her decision not to watch are well spelt out in the article.

17. We see no inaccuracy in the comment. In an opinion piece it was not necessary for the author to state she could have watched delayed coverage on Prime. Although Sky make much of the fact that there was free-to-air coverage on Prime, nowhere in the extensive material they filed did they say how substantive any live coverage on that channel was. It appears to us in the main it appears to have been a vehicle for delayed coverage.

18.We see no breach of the principles complained of in relation to the first article.

Anti-siphoning laws, 6 August 2016

19. This is a news article reporting on a press release by the New Zealand First broadcasting spokesman, Clayton Mitchell. The press release specifically refers to free-to-air coverage and the party’s determination to introduce a bill to Parliament to match other countries which guarantee certain events have free-to-air coverage. We agree with Mr Currie that this article covered a matter of high public importance and interest. The article clearly makes reference to, “Prime are screening the Rio games from 11 p.m. to 3 p.m. daily, but it is not clear how much of this will be live coverage”. As we have already noted, and as Mr Currie mentioned, nowhere does Ms Way state how much live coverage was on Prime. It is fair to accept his comment that in the context of the overall hundreds of hours of coverage on Sky’s 12 pay channels, it is quite modest. Furthermore, Ms Way was quoted in the article, and she must have been well able to give the exact amount of live free to air coverage on Prime.

20. Meeting the balance and fairness provisions of Principle 1 is not some mathematical exercise of giving equal space to protagonists.

21. This was a story that arose from the position of New Zealand First, and was accurate, fair and balanced. Sky was given the opportunity to comment, which it accepted, and the piece also referred to overse as situations where free coverage is guaranteed for certain events, with specific reference to both Australia and the United Kingdom.

22. There are no breaches of our Principles as alleged by Sky in this article.

Athletes out of picture on sponsorship: agent — 7August 2016

23. This was an article about athletes and the use of their images. It refers to revelations regarding a number of defending gold medallists and disagreements relating to Air New Zealand advertising. It goes on to refer to some Fonterra advertising, and finally deals with

Athletes out of picture on sponsorship: agent — 7 August 2016

23. This was an article about athletes and the use of their images. It refers to revelations regarding a number of defending gold medallists and disagreements relating to Air New Zealand advertising. It goes on to refer to some Fonterra advertising, and finally deals with a member of the women’s hockey team for the Olympics, who said she was surprised to see herself on a billboard promoting Sky TV and the Olympics.

24. Again, Ms Way commented, saying that the hockey player concerned was aware of the Sky campaign.

25. The reference to Sky is a small piece at the end of a lengthy article dealing with a story around a sports agent’s comments that leading athletes deserved to have more say in how their images were used in Olympic sponsorships.

26. Again, we see no principles have been breached as alleged by Sky.

Sky’s limit over restrictive rules, 7 August 2016

27. The Council has said on a number of occasions that opinion pieces should be clearly labelled as such. We are surprised that publications continue to ignore that advice. We repeat that the Council considers it essential that opinion pieces are clearly labelled as such. A by-line or photo tag is not sufficient.

28. However, we think any reasonable reader seeing terminology such as “we disagree” and “we believe”, appearing as it did in a sports section, would take the clear view that it was an opinion piece. Standing back and reading the piece as a whole it is clearly opinion. Furthermore, in this instance once the matter was drawn to the editor’s attention a correction was published almost immediately. Such a rapid response would be grounds on its own not to uphold the complaint in relation to this opinion piece.

29. We find no breach in that regard.

30 We will turn to Principle 10 in relation to both matters when we have dealt with theStuff complaint. See Case 2548