Case Number: 2707

Council Meeting: SEPTEMBER 2018

Decision: Not Upheld

Publication: Herald On Sunday

Ruling Categories: Accuracy
Behaviour of Journalists
Comment and Fact
Errors, Apology and Correction Sought


[1] Soraya Bradley & Michael Kay complain that an article in the Herald on Sunday dated 3 June 2018 breaches NZ Media Council principles 1, 4 and 12.

[2] The focus of the article is on the recent debate around free speech in New Zealand and the lack of New Zealand legislation vis-a-vis hate speech.

[3] The article titled Hate v Free Speech: whose rights come first? includes the views of Wellington human rights lawyer, Michael Bott.

The Complaint

[4] The complainants Ms Bradley and Mr Kay question the accuracy of the content of the article specifically the inclusion of reference by Wellington human rights lawyer, Michael Bott to Nazi and the inference that “Germany and the rise of the Nazi could have been prevented if only hate speech laws had been in place.”

[5] Ms Bradley and Mr Kay suggest that the failure to test the accuracy has resulted in an article that is not balanced or fair “…and the structure of the article conflates comment and fact andNew Zealand Herald failed to correct these errors...”

[6] There is a suggestion by Ms Bradley and Mr Kay that Mr Bott has used the factual inaccuracy to “…peddle a dangerous fiction, significantly misrepresented historical facts regarding hate speech law.Bott did so to effect proposed Human rights legislation (Disharmonious speech, directed at religious minorities.) and assure the New Zealand public they should agree to the very laws that helped trigger the conflict within Germany.”

[7] A further complaint by Ms Bradley and Mr Kay which they suggest has resulted in an “unbalanced article” refers to the threat of liberties, “Our liberties are always under threat from totalitarians, but presently they are under threat from humanitarians and equalitarians, who believe in rule by humane and rational, who nanny and nudge us for our own good.”

[8] In February of this year the human rights commission produced a document in which it recommended introducing laws prohibiting “disharmonious speech discrimination against religious minorities.” However, Ms Bradley and Mr Kay are concerned with the lack of ability to provide a response, “The NZ public have no ability to submit feedback to our NZ human right’s commission’s report and recommendations.We must submit feedback to UN human rights.

Why are unelected bureaucrats allowed to produce policy recommendations with no accountability to the New Zealand people.”

The Response

[9] Editor of the Herald on Sunday, Stuart Dye, has responded to the complaint, “The complaint centres around views held by Wellington human rights lawyer Michael Bott.In particular, Mr Bott makes two references to Nazi Germany:

1. Mr Bott says “unchecked hate speech… [led to] concentration camps, extreme cruelty and enormous suffering.”

2. Mr Bott says “If you take an absolutist approach to free speech then you’re allowing an Adolf Hitler to rise up.”

[10] Mr Dye has advised that despite whatever took place in history Mr Bott is still entitled to express his opinion, “Regardless of whether there is any doubt that Hitler’s regime and its unchecked hate speech led to what came next, these are Mr Bott’s opinions.”

[11] In explanation, Mr Dye has said the purpose of the article was to “foster debate and never sought to, nor pretended to, reach any sort of conclusion…it drew on numerous examples in New Zealand and overseas, and also examined legal measures being taken elsewhere and discussed here.”Mr Dye further commented that the NZ Herald’s view of the article is that “there was nothing misleading nor any misinformation.”He further expressed that “TheHerald stands by the article as a fair, balanced and accurate discussion of the difficulties in determining what is free speech and what is hate speech, and the perils of attempting to legislate in this area.”

[12] Mr Dye described the article as a “news feature canvassing a range of views on how and where to draw the line between free speech and hate speech.”

[13] In addressing the suggested breach of principle four, Mr Dye has responded “This was a feature length article of more than 1,800 words.Those giving opinions were clearly doing so, based on material facts.”

[14] In response to a suggestion by the complainants that the article omitted to include a “dissenting voice to the notion of giving the state more power to rule over free speech/hate speech.”Mr Dye has explained that this was the purpose of the article, “In fact, that was precisely the reason for the article; exploring the difficulties that lie in the area between free speech and hate speech and the knock-on effects of attempting to legislate in such an area.This was highlighted at length in the passages about Justice Muir and the discussion around Louisa Wall vs Stuff.

[15] There is recognition by the Herald that the original complaint was missed and Mr Dye has offered an apology, “I’m sorry on behalf ofThe Herald… somehow the complaint was missed, and we are reviewing our procedures to ensure such an anomaly does not happen again.”

The Discussion

[16] NZ Media Council Principle 1 requires that publications be bound at all times by accuracy, fairness and balance and should not deliberately mislead or misinform readers by commission or omission.The complainants have suggested that the article lacks accuracy based on some of the assertions by Wellington human rights lawyer, Michael Bott in relation to what took place with Adolf Hitler and Nazi Germany. The complainants posit that the inaccurate facts have resulted in the article being unfair and unbalanced. Distilling the content of the complaint and the information provided by the complainants the Media Council concludes that whilst Mr Bott has referenced Adolf Hitler and Nazi Germany, these references are within the overall context of the article and are examples drawn by Mr Bott. The Council finds that there was no attempt to deliberately mislead or misinform readers and therefore principle 1 has not been breached in this matter.

Principle 1: Accuracy, Fairness and Balance – Not upheld.

[17] The article in question is not titled comment or opinion.The provisions provided under Principle 4 state that a clear distinction should be drawn between factual information and comment or opinion…material facts on which an opinion is based should be accurate. Throughout the article Mr Bott is attempting to express that there is an inherent difficulty in establishing a definition for hate crime while simultaneously allowing freedom of expression and freedom of speech.The article draws from many different sources including but not exclusively Mr Bott.Where opinions are expressed these are clearly attributed.

Principle 4: Comment and Fact – Not upheld.

[18] In this matter the complainants lodged their complaint on the 4 June with The Herald, two months later the complaint was lodged with the Media Council who bought this to the attention ofThe Herald. Mr Dye has offered an apology and an assurance that procedures are being reviewed to prevent this from happening again. The Media Council acknowledges the pressures that media outlets are under however the lack of response or untimely response to a complaint diminishes the opportunity for an editor to resolve a complaint with a complainant directly, and, in line with the provision outlined in Principle 12 this does not support the ability by a publication to promptly correct any errors.The Media Council re-emphasises that the responsibility lies with the publication to ensure that processes are in place to ensure that complaints are addressed as soon as practicable.Following on from the decision against Principle 1 and Principle 4 above the Media Council finds there is no breach of Principle 12 as no correction of error is required in relation to this complaint.

Principle 12: Corrections – Not upheld.

Media Council members considering this complaint were Chris Darlow, Liz Brown, Jo Cribb, Tiumalu Peter Fa’afiu, Jenny Farrell, Hank Schouten, Christina Tay and Tim Watkin.

Craig Cooper took no part in the consideration of this complaint.


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