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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.

The new TVNZ 7 show “The Court Report”, filmed at VUW law school, debuted yesterday. Criminal barrister Greg King hosts; I’m the roving reporter. Check it out here.

Dear Sea Shepherd anti-whalers:

I see that you were happy to lie to the public about banning Peter Bethune from future voyages - as part of your litigation strategy.

I’m afraid I now assume that you’d be equally prepared to lie to the public as part of your PR strategy.

Michael Reed QC, Morning Report on Wednesday:

The jury were completely convinced that David hadn’t done it.

This betrays either a gob-smacking ignorance of fundamental principles of criminal law, or an intention to mislead the public about the significance of a not-guilty verdict.

Fortunately, one of the Bain jurors seems to understand the law better than Reed, as demonstrated in this letter to the Christchurch Press last month:

As a member of David Bain’s retrial jury, I am angered by the misinterpretation of our not-guilty verdict by the public, and particularly by the media. In an article in The New Zealand Herald, shortly after the retrial verdict last June, Paul Holmes wrote: ‘‘David Bain is innocent. Robin Bain came in from the caravan that cold Monday morning and killed four sleeping members of his family, then himself.’’

This type of conclusion has been repeated many times in the year since the trial finished. Even in Friday’s Press article about an upcoming play about the murder case, Katie Chapman states that Bain’s ‘‘defence successfully argued that Robin was the killer’’. I take exception to this flawed characterisation of David Bain’s not-guilty verdict. As a jury, we did not necessarily find David innocent or Robin guilty. Our task was to determine if David Bain’s guilt was proved beyond reasonable doubt – a very high threshold. Anyone who reads from our verdict that Robin Bain is guilty is just plain wrong. Robin Bain was not on trial – David was.

Good on RNZ’s Monique Devereux for making this point.

Incidentally, this also rather suggests that there are occasions on which it is valuable to hear from jurors after a verdict, despite the hard line taken on this issue by many judges.

So, now that TVNZ has broadcast its special edition of Bryan Bruce’s The Investigator: The case against Robin Bain, compellingly arguing that Robin Bain couldn’t have committed the Bain family murders, can David Bain and his team do anything about it? They argue that it’s “unadulterated rubbish”, contains “mischievous misrepresentations of facts”, “perpetuates a fraud”, and unethically refused to include their side.

They seem particularly furious at Bruce’s conclusion that “in my view, there was no forensic evidence that Robin Bain killed himself or his family” (and later, in slightly watered down form, “the forensic evidence fails to support any such unlikely chain of events” as that required for Robin Bain to have committed the murders).

Team Bain is making noises about legal action, which could involve either a defamation lawsuit or a broadcasting standards complaint. What chance would they have? (I won’t deal with the question of whether anyone else might have remedies, such as the witness Bruce raised questions about, Daryl Young.)

Defamation

The first hurdle for Team Bain is defamatory meaning. Does this programme actually suggest that David did it? TVNZ might say that the documentary was all about Robin, not David. It never said that David must be guilty.

I don’t think that flies. A programme means what ordinary reasonable viewers would take it to mean, including the things that are between the lines. As Bruce pointed out, the defence team itself argued that Robin Bain committed the murders. That was essentially their whole strategy. As far as I know, no-one has suggested it could have been anyone but Robin or David. If you purport to demolish the case against Robin, everyone will quite reasonably take you to be saying that David did it. Round one to David.

Round two is the defences. The really interesting one is Truth. The onus would be on TVNZ/Bruce to prove the “sting” (which we’re supposing is that David is the murderer). They wouldn’t have to prove that beyond reasonable doubt, though. It’s only a civil standard that applies: balance of probabilities (though the level of proof must be commensurate with the gravity of the allegations, which would suggest a burden higher than more-likely-than-not when you’re calling someone a murderer). What’s more, a defamation jury could probably be shown all the evidence that was excluded by the criminal court, as well as anything that Bruce could turn up. It would potentially be a mammoth case, extremely long, complicated and expensive. I’m guessing David Bain can do without that - quite apart from the serious risk that the jury would find the allegation justified.

But even if TVNZ didn’t manage to convince the jury that David was the killer, it might manage to make out another defence: Honest opinion (which used to be called “fair comment”). The programme is very carefully structured as a presentation of Bruce’s “personal opinion”. At all the key places he uses language such as “in my view…”. There’s really no reason to doubt that his opinion is genuine. There’s a very solid argument that the opinion is based on facts set out or referred to in the programme. Those are the requirements of the defence. Unless Team Bain can show that the programme got some facts flat-out wrong, or perhaps omitted reference to some glaringly significant facts, this defence is a serious obstacle to a defamation lawsuit.

There’s another defence called Qualified privilege, currently in a state of development by the courts. Speaking broadly, it may be moving toward protecting speech that’s in the public interest (even if it turns out to be wrong), where the reporter has behaved responsibly. David can certainly ask whether it’s responsible journalism to exclude his views form a programme like this, but he couldn’t assume that this defence would fail here.

Broadcasting standards complaint

This might be a better prospect for Team Bain. The complaint would not need to be made in Bain’s name. I rather expect that some non-Team-Bain folk will lodge complaints with TVNZ, if they haven’t done so already. [Update: there’s a complaint already].

As for Team Bain themselves, they have questioned the accuracy of the documentary. Was there in fact significant forensic evidence linking Robin Bain to the killings that the documentary omitted? Even if there is, TVNZ can still argue that this was presented as opinion, not fact. Perhaps Team Bain will identify specific factual allegations that they think are wrong, or (more readily) create misleading impressions. The BSA in the past, however, has been ready to roll a lot of things up under the rubric “opinion”.

The fairness standard, and the Standard Formerly Known As Balance, are more promising for Team Bain. They overlap to some degree.

The fairness standard requires that people “referred to” in the broadcast be treated fairly. That certainly includes David.

Balance relates to broadcasters’ discussions of controversial issues of public importance. It would be a brave BSA that found that no such issue was involved here.

Balance requires the broadcaster to make reasonable efforts to include “significant viewpoints”. It strikes me as difficult to argue that David Bain’s viewpoint wasn’t significant in the context of a documentary about his case. Apparently he tried  to provide input into the documentary, but was turned down. The BSA has said the balance standard applies with particular force when serious criticisms are advanced against someone. The same goes for fairness. Looks like a slam dunk to Team Bain so far.

But it’s not so straightforward. TVNZ will argue that the focus of the documentary was Robin Bain’s guilt. That was the issue of public importance. And that didn’t require David Bain’s input. Yep, they’ll argue that. I think it’s unconvincing for the same reasons I set out above.

Next, TVNZ will argue that less balance is required for authorial documentaries. The guidelines say so explicitly. That’s a much better argument. This documentary is plainly authorial. It emphasises at every turn that it’s Bryan Bruce’s view. Reasonably early on, he tells us that that the documentary is his “personal opinion.”

The guidelines also talk about whether viewers can be expected to be aware of significant views from other coverage. That’s surely also the case here. Team Bain can hardly argue that they haven’t been given plenty of ink and airtime for their views on TVNZ and in every other media outlet in the country.

These are powerful arguments for TVNZ. Still, they may not be enough. The most comparable BSA case is the one about Keith Hunter’s documentary Murder on the Blade, arguing that Scott Watson was wrongly convicted. The BSA split over the question of balance. The majority said that the balance standard wasn’t breached. (Note that the guidelines were slightly different back then, though I’m not sure it would make a difference). They said:

1. The fact that it was one person’s perspective was clear from the introduction
2. It was made clear that the programme did not deal with all the evidence
3. The documentary did present the key elements of the case of the side it criticised
4. It didn’t misrepresent the case
5. It sufficiently acknowledged other viewpoints
6. There was extensive previous coverage of other viewpoints
7. The Bill of Rights protected the speech

How does The Case against Robin Bain fare under these factors? It probably satisfies 1, 6 and 7. It may satisfy 2 and 4. According to Team Bain, it fell down badly on 3 and 5. TVNZ will say that the programme wasn’t about David Bain’s guilt or otherwise, and in fact, mentioned uncritically that the second jury felt that there wasn’t enough evidence to convict.

So here’s the question: was enough balance provided, even if the threshold is low because the documentary is authorial, and focused on Robin Bain’s guilt? Was there enough indication of the material supporting Team Bain’s view that the evidence pointed to Robin? Was there, as they allege, some degree of misrepresentation? Might some omitted information be so significant as to render the programme misleading (or at least unfair) without it? Might the BSA find that the need for balance here is greater than it was in the Murder on the Blade case since it’s effectively accusing someone of murder rather than suggesting someone didn’t do it? Or might they say the need for balance is less because the programme didn’t directly tackle David’s guilt, and there were plenty of other sources of information about the trial?

Whatever the case, TVNZ has dealt itself an extra trump by giving Team Bain some air time to rebut the documentary in its news and current affairs coverage afterwards. Smart move. The balance standard requires only that the range of “significant viewpoints” be broadcast within the “period of current interest”. So it will be able to draw on the rebuttal offered during Close Up last night, for example. (That may not insulate it from a fairness complaint, though. Fairness has been treated as separately required in each programme. On the other hand, a slight change in the wording of the fairness standard recently may have changed that…).

Upshot: this would be an interesting complaint if it’s properly argued. I’m inclined to think the outcome will depend to a large extent on whether Team Bain can point to material that was glaringly left out or misrepresented.