Broadcasting: The amenability of a broadcasters' editorial and operational decisions to judicial review - Mangu v TVNZ

Broadcasters will have breathed a sigh of relief at Justice Lang's decision in Mangu as he held that, in general, broadcasters' editorial and operational decisions regarding the content of their programmes are not amenable to judicial review. In essence, Lang J was not prepared to endanger the media's right to freedom of expression and editorial independence. However, his judgment did not go so far as to say that judicial review will never be available against a broadcaster exercising a statutory power and he expressly chose not to comment on Justice Ronald Young's recent decision in Dunne and Anderton v Canwest TVWorks Limited.

Mangu was standing as an independent candidate in the Te Tai Tokerau electorate in the general election. One News broadcast an item about the electoral contest for the Te Tai Tokerau electorate which focused on the closeness of the contest between the sitting member, Dover Samuels, and the candidate for the Maori Party, Hone Harawira. During the course of the item, the presenter made reference to the results of a recent poll. Mangu was not mentioned in the item.

Subsequently, Mangu brought proceedings against TVNZ alleging that the combined effect of the use of the poll (which she claimed was unsatisfactory) and the fact that she was not mentioned in the item was to undermine her chances of being elected. She alleged that when it broadcast the item TVNZ breached its duties as a broadcaster, that it acted in an arbitrary, capricious or unreasonable manner and that it failed to take into account mandatory relevant considerations.

Mangu sought interim relief, namely:

1. an order requiring TVNZ to remove material relating to the item from its internet website; and
2. an order restraining TVNZ from publishing or disseminating the results of the poll in the future without also referring to the fact that the result of the poll was subject to challenge in the Courts by her.

Lang J's decision really turned on the question of whether the Court had the power to issue an injunction. In considering this question he reached the clear view that in the case before him:

at the micro level of gathering news and presenting the news item that [was] the subject of this proceeding, TVNZ was carrying out a function that [was] not amenable to judicial review.

His reasons for coming to this conclusion included:

• the consistent reluctance of the Courts to trammel the media's right to freedom of expression and editorial independence (unless there are exceptional and compelling reasons for doing so);
  
  
• the fact that Mangu's request was one that effectively sought the Court to interfere with an editorial decision relating to the gathering and presentation of news;
  
  
• the existence of an alternative means of redress, namely the structured complaints and appeal process within the scheme of the Broadcasting Act 1989; and
  
  
• the difficulty of determining where to draw the line in individual cases if judicial review was available in respect of day-to-day programming and editorial decisions.

Importantly, Lang J did also say:

In reaching this conclusion I have deliberately restricted my comments to the issues that are directly relevant to the present case. I do so because I recognise that TVNZ exercises statutory powers in many ways. The fact that judicial review may not be available in the present case does not mean that judicial review may not be available in relation to other situations in which TVNZ is exercising a statutory power.

Immediately after making this statement Lang J mentioned that he had not made reference to Dunne and Anderton v Canwest TVWorks Limited because the principles applied by Justice Ronald Young in that case did not assist in determining the issues raised by the case that was before him.

This of course begged the question of whether the decision in the Canwest case was correct and leaves the point to be decided another day. Notwithstanding this, the Mangu case is to be welcomed; not least because it clarifies that day-to-day editorial and operational decisions of broadcasters are most unlikely to be overturned by the Courts.

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