TV3 & Fairfax: Ruling Erosion Of Media Freedom
By Kevin List and the Scoop Team
Two media bosses have warned that a High Court ruling that forced TV3 to include United Future's Peter Dunne and the Progressive Party's Jim Anderton in a leaders' debate has caused a concerning precedent that could further erode freedom of the media in New Zealand.
Strong statements criticizing the Judge's ruling have been issued by TV3 and Fairfax New Zealand. Both media companies cite an erosion of fourth estate independence and fueling their outrage.
On Thursday, Justice Ron Young found in favour of Peter Dunne and Jim Anderton in their battle to be included in a TV3 leaders' debate. Both men had been culled from TV3's leaders debate based on a single poll published on 28 July. TV3's head of news and current affairs Mark Jennings explained yesterday in a press statement why Mr Anderton and Mr Dunne had missed out: "Our position, openly stated a few weeks ago, was that our debate would include leaders of the top six polling parties based on our next 3 News/TNS Political Poll," he said.
TV3 had based its decision on a sample size of 1000 eligible voters with a margin of error of 3.1%. The difference between making the cut and not making the cut came down to the decision of two people - 16 people told the 3 News/TNS Political Poll they would vote for ACT whilst 14 people stated they would vote for United Future.
Justice Young ordered TV3 to include both Mr Anderton and Mr Dunne in Thursday night's TV3 Leaders' Debate. Putting pressure on TV3 to include the Progressive and United Future Party leaders was considered by far the lesser of two evils by Justice Young.
Failing to include Mr Anderton and Mr Dunne, Justice Young said would be detrimental to New Zealand's parliamentary democracy.
The ruling has caused an outcry from media circles, rabidly protective of judicial and political interference in editorial and newsroom decisions.
It is true that TV3 is set to accrue thousands of dollars from party campaign advertising - money that originates from taxpayers' hard work. Considering this factor, is it right that the courts insist that ideals of democracy be brought into line should it consider a broadcaster to be acting in an selective manner and contrary to the public's interest - and that democracy is not being served?
That appears to be a relevant question.
But, TV3's director of news & current affairs, Mark Jennings, said he is deeply concerned at the serious precedent this ruling has created.
"We believe the ruling has significant implications regarding media freedom in New Zealand," Mark Jennings said.
He said although the debate proceeded with Peter Dunne and Jim Anderton taking part that TV3 will be "examining our legal options for challenging the precedent this ruling has caused. This decision will be reached over the next week or so.
"This ruling has created a broader debate in relation to the editorial independence of New Zealand’s media."
Scoop yesterday asked Mr Jennings what he thought of Justice Young's criticism that TV3's news judgment was "arbitrary" and "fundamentally flawed".
"I don't think he is right. It simply wasn't arbitrary it was the same method we used last time around and Peter Dunne and Jim Anderton were excluded then and the only outcry was a polite phone call from Jim Anderton," Mr Jennings said.
He brushed off suggestions that TV3 was interfering with democracy in the way the had decided to run the Leaders' Debate
"My answer to that is two fold: First of all we are one of a series of debates. There are debates being broadcast on Sky TV, on Prime, on all the radio stations - the newspapers will probably even have debates. Secondly we will provide the minor parties; Anderton, Dunne and even Destiny with other opportunities. We told them that," Mr Jennings said.
Fairfax New Zealand's editor in chief, Peter O’Hara, said: "Fairfax New Zealand firmly believes the judgement on the TV3 Dunne/Anderton case is an alarming intrusion into the democratic process and the operations of a business. It is of deep concern that the Broadcasting Act has been brought to bear in this way.
"While the print media may consider itself fortunate not to be subject to such statute, Fairfax takes no satisfaction from that and sees the court's decision as having dangerous implications for a free and robust media in this country. Fairfax will work with our colleagues in the media industry to pursue any available options to redress this matter," Peter O'Hara said.
In summing up, Justice Young said that an affidavit supplied by Mr Jennings was more likely to support the plaintiff's case.
It is understood TV3 decided late this week to stand by their decision based on other factors besides the poll published on 28 July. Justice Young pointed out representatives of TV3 had previously stated that the 28 July TNS poll was the only basis for their decision, he therefore dismissed TV3's later arguments around their decision making process.
The process in utilising one poll to decide who got TV time, and who didn't, was described by Justice Young as "arbitrary" and "fundamentally flawed". Justice Young further considered there was "little to commend" about TV3's decision making.
Justice Young was satisfied that TV3's decision was susceptible to judicial review, TV3 had put itself into the public arena, and in Justice Young's opinion, by staging the Leaders' Debate had certain public responsibilities.
Among the material submitted by the plaintiffs was the ACT Party publication, The Letter which is normally written by former ACT Party leader Richard Prebble.
"TV3’s debate on Thursday night is absolutely crucial for third parties. He who is not there is lost - so United's fate is sealed," explained this week's The Letter.
The Letter also considered that Mr Hide may be the politician to tame TV3's worm because of "great intellect, wit and good humour". Now it would seem, thanks in some small way to Mr Prebble's musings, Mr Hide may have some extra competition in the form of the worm's friend - Mr Dunne.