BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary [This summary does not form part of the decision.]

An item on Seven Sharp featured the story of a terminally ill woman who is a long-standing voluntary euthanasia campaigner. The item also discussed the history of attempts to legalise voluntary euthanasia in New Zealand and overseas. The Authority upheld a complaint that the item lacked balance. The item did not solely approach voluntary euthanasia from the personal perspective of the interviewee. It included a wider discussion of the voluntary euthanasia debate and law reform that triggered the requirement for presentation of alternative views, which were not presented within the programme or within the period of current interest.   Upheld: Controversial Issues   No Order   

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Introduction 

[1]  An item on Seven Sharp featured the story of a terminally ill woman who has been a voluntary euthanasia campaigner for the last two decades. The item also discussed the history of attempts to legalise voluntary euthanasia in New Zealand and overseas.   [2]  Right to Life New Zealand complained that the item lacked balance.    [3]  The issue is whether the broadcast breached the controversial issues standard as set out in the Free-to-Air Television Code of Broadcasting Practice.    [4]  The item was broadcast on TV ONE on 16 February 2015. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.  

Nature of the programme

[5]  The Seven Sharp item was introduced as follows:

Now tonight we’re going to look at one woman’s last stand. She’s always been outspoken, always happy to, you know, rub people up the wrong way if she thinks she’s got a point to prove. For two decades she’s been tackling an issue she feels is her most important yet – one that affects every single one of us but the Government has put on the backburner.

[6]  The beginning of the item discussed the interviewee’s life, her illness and her reasons for campaigning for voluntary euthanasia. The reporter positioned the interviewee’s campaign in the context of the wider voluntary euthanasia debate throughout the item, initially by outlining other countries where the interviewee’s wish for voluntary euthanasia would be legal.    [7]  After the pre-recorded item the programme presenter asked the reporter in a live cross:

It’s always been a very compelling argument really, hasn’t it? ...Where are we at? I remember all the votes, we’ve had conscience votes, it’s been in Parliament, Bills come up, where are we now?

[8]  The reporter responded:

Well a quick re-cap – 1995: there was the first Bill of this kind and it was a total defeat, didn’t get a look in. 2003: similar Bill, completely different picture, so that was a narrow defeat by just one vote. It would have been interesting to see what would have happened last year but there was no chance because the Labour Party decided it was too controversial for an election year so they dropped it. Could have been put back in this year but Andrew Little [the Labour Party leader] decided it wasn’t really in line with the Labour Party’s focus – that’s jobs and economy – so he swapped it for something else.

[9]  The reporter went on to explain the international position:

I think generally there is a shift towards voluntary euthanasia, so there’s either no change or they’re changing to favour it. So the recent one was Canada this month… Belgium last year… And even in the UK… the former Archbishop of Canterbury… vehemently opposed but he has now done a U-turn to say that this is really the only compassionate way.

[10]  The presenter responded, ‘Ok, so where are we going to go from here? There’s nothing in the mix currently as we sit here tonight, is there?’ The reporter said:

We’re pretty much going nowhere fast. I don’t think that it’s going to be back in Parliament soon because there’s no political party or individual MP that has actually got it high on their agenda. So we might just see probably a few more sad court cases and the occasional opinion poll.

[11]  The programme’s two presenters then reacted to the item in the following exchange: 

Presenter 2: It’s sad, isn’t it?  Presenter 1: The funny old thing about it, it’s not a party thing it’s always a Private Member’s Bill… and then it becomes a conscience vote. And the irony of the conscience vote is of course, who the hell are those people to tell me what I’m doing? They’re not necessarily reflective of you or I.  Presenter 2: …One vote 11 or 12 years ago… surely you’d assume if we had one right now people would be in favour. Presenter 1: And there’s nothing wrong with being anti- it, if you’re anti- it – [Presenter 2: No, if that’s your stance] – but who are you busy telling me how to run my life or end my life? Presenter 2: Everyone has to decide. Let us know what you think about this…

Freedom of expression

[12]  Matters of broadcasting standards need to be considered in context and within our social environment. Dominating the landscape in our social environment is a concept of freedom of expression. This concept is embedded in the New Zealand Bill of Rights Act 1990, section 14 of which provides that ‘Everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind and in any form.’    [13]  We have previously endeavoured to explain our approach to the right to freedom of expression as follows:¹  

Consideration of the Bill of Rights Act is fundamental to our consideration and evaluation of these complaints… We are being asked to limit the right of freedom of expression which is provided for in the Bill of Rights Act. In terms of that Act, if we are to uphold a complaint we must impose only such limit on the broadcaster’s right of freedom of expression as is reasonable and we must be able to demonstrate that our limitation is justified. Put simply, we must be able to show that the harm done by the broadcast justifies any limitations imposed by upholding any part of the complaints under the nominated standards. When we speak of any harm being done by the broadcast, this need not be related to a particular person or persons, although it often is. The harm can be in a wider sense and the Act recognises that there is a general harm in limiting the right of freedom of expression in a democratic society. If we are to impose limitations, we have to show that they are counterbalanced by other adverse consequences which would arise if limitations were not imposed. 

[14]  We recognise that discussions about the issue of voluntary euthanasia carry a high level of public interest and therefore are valuable in terms of the exercise of the right to freedom of expression. It is an evolving issue which has been debated for a long time, partly because it is seen by advocates to go to the heart of human rights.    [15]  We also recognise that while Seven Sharp is a news and current affairs programme, it takes a sometimes non-traditional approach to topical issues. Part of its established format relies on the programme’s presenters discussing issues, offering their own views on topics and encouraging viewers to do the same.    [16]  The value in the broadcast must be weighed against the level of harm alleged to have been caused by the broadcast, in terms of the underlying objectives of the relevant broadcasting standards. Here, the complainant argued that the programme promoted euthanasia and did not make efforts to present a countering view from anyone opposed to euthanasia, resulting in an under-informed audience.  

Was the item sufficiently balanced?

[17]  The balance standard (Standard 4) states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest. The standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.²    [18]  Right to Life felt that the object of the item was to promote euthanasia. It complained that the item lacked balance because it did obtain any input from the medical profession or disability sector, who it claimed are opposed to euthanasia. Right to Life argued that the item used emotive language, such as ‘right to die’ and emphasised the interviewee’s fear of dying in excruciating pain, but did not mention available palliative care options. Right to Life argued that to achieve genuine balance on an issue, alternative views should be presented to the audience within the same programme if possible and the broadcaster should not be able to rely on balance found in past programmes.   [19]  TVNZ argued that the Seven Sharp item clearly approached the issue of voluntary euthanasia from the perspective of the pro-euthanasia campaigner featured, focusing on her individual situation and personal opinions on the issue. It argued that this was permitted as long as it was evident to viewers that the item was approaching the issue from a particular perspective. TVNZ considered that other perspectives were acknowledged within the broadcast through the reporter’s discussion of the history of voluntary euthanasia in New Zealand (particularly law reform) and how the issue is being handled around the world. It noted that the phrases identified by the complainant, ‘right to die’ and ‘fear of dying in excruciating pain’, were not used in the broadcast. In any case, TVNZ argued it had covered this issue within the period of current interest, which for this topic spanned many years, and referred to broadcasts in 2012 and 2013 that presented the anti-euthanasia viewpoint.    [20]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.³   [21]  The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.⁴  A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁵    [22]  We accept that voluntary euthanasia is a controversial issue of public importance.⁶  The question is whether this particular item amounted to a ‘discussion’ of that issue.    [23]  We have held in the past that items focused wholly on individual stories and personal experiences did not amount to a ‘discussion’ which triggered the requirement for balancing perspectives.⁷  Having carefully considered the item before us and viewed it a number of times, we have reached the view that it can be distinguished from those cases.   [24]  This item featured a voluntary euthanasia campaigner, who had actively campaigned for law reform for several decades before being diagnosed with a terminal illness herself. While the segment initially focused on her personal story, this was framed in the context of her campaigning. The item as a whole transitioned from mere story-telling into advocacy and a discussion of the issue of voluntary euthanasia; it did not focus only on the interviewee’s personal experience. Following the interview with the campaigner, the reporter gave a history of national and international euthanasia law reform and offered her opinion on what will happen next in New Zealand. Significantly, in our view, the Seven Sharp presenters also offered their views, which were evidently in support of voluntary euthanasia and very sympathetic to the plight and efforts of the woman featured. This wider discussion formed a significant part of the item – approximately one third of the overall length of the broadcast – so it cannot reasonably be said that the woman’s personal story absolved the broadcaster from the need to present alternative views.   [25]  The next question, then, is whether the broadcaster made reasonable efforts to present significant views on the issue of voluntary euthanasia, either within the item or within the period of current interest.    [26]  The item itself did not put forward any significant view opposing the pro-voluntary euthanasia stance; it was heavily weighted in support of voluntary euthanasia. The item presented three streams of advocacy in favour of voluntary euthanasia – the campaigner’s views, the discussion of legalisation overseas and the presenters’ and reporter’s comments. The interviewee was a vocal and long-standing voluntary euthanasia activist and the presenters largely adopted her views without question. Both presenters made comments such as, ‘It’s always been a very compelling argument really, hasn’t it?’, ‘who are you busy telling me how to run my life or end my life?’ and ‘surely you’d assume if we had [a vote] right now people would be in favour’.    [27]  The presenters did acknowledge that ‘there’s nothing wrong with being anti [voluntary euthanasia]’ and the reporter alluded to opposition to legalisation of voluntary euthanasia. However these very brief references lacked detail or substance and were completely overshadowed by the remainder of the item, which was heavily weighted towards the pro-euthanasia stance. We have said before that balance can be achieved in different ways, and not only by interviewing a representative of the other side of the debate or presenting an alternative perspective first-hand.⁸  The final comments from the presenters, and the commentary given by the reporter, were prime opportunities for some form of challenge or balancing statements on voluntary euthanasia (for example, by playing ‘devil’s advocate’), which were not taken.    [28]  Having found significant views on voluntary euthanasia were not presented within the programme, we now consider whether any were presented within the period of current interest. The Authority has previously recognised euthanasia as a long-running moral issue that has an ongoing period of current interest.⁹  In a recent decision it found that ‘the broad perspectives in the [euthanasia] debate are known to the public and… different viewpoints from both sides of the debate will be offered from time to time. Viewers therefore could be reasonably expected to be aware of the significant views in the debate’.¹⁰    [29]  Our findings in that case (and others before it) relied on our expectation that balance on this issue would be presented over time. We considered that to be a reasonable expectation. However, we have not seen this occurring and in our experience it is not straightforward to seek out the alternative view in TVNZ programmes or in other media. The Authority has determined numerous balance complaints in recent years about programmes which promulgated the pro-euthanasia position, and we have rarely, if at all, been pointed to evidence of the other view being put forward.¹¹     [30]  In relation to the present complaint TVNZ pointed to items broadcast in 2012 and 2013 which it considered presented the anti-euthanasia position and therefore achieved balance. We do not think it is reasonable to expect viewers to be cognisant of views given in items several years ago, and we are not aware of coverage in other media around the same time as this Seven Sharp item that presented significant perspectives on voluntary euthanasia.   [31]  In conclusion, we do not consider that this broadcast assisted viewers to arrive at an informed and reasoned opinion about the range of viewpoints on voluntary euthanasia. Nor was any alternative view presented in other coverage in proximity to the broadcast. We are satisfied that upholding the complaint would not unreasonably restrict the broadcaster’s right to freedom of expression. This is because requiring the presentation of an alternative viewpoint on a matter of public interest promotes, rather than hinders, the free flow of information and free speech principles.¹²  Accordingly, we uphold the complaint under Standard 4.    For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Seven Sharp on 16 February 2015 breached Standard 4 of the Free-to-Air Code of Broadcasting Practice.   [32]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.  

Submissions on provisional decision and orders

[33]  Right to Life was pleased with the provisional decision and submitted that the Authority should order TVNZ to broadcast a statement.   [34]  TVNZ pointed to the Authority’s finding in paragraph [14] that voluntary euthanasia is ‘an evolving issue which has been debated for a long time’ in New Zealand and considered that this debate is still ongoing. It noted that in May 2015, after Right to Life lodged their complaint, Lecretia Seales took a case to the High Court arguing she had the right to choose when to die. The Court issued its decision on 5 June, and TVNZ argued that around this time there were multiple broadcasts which provided balance to the Seven Sharp item by presenting other significant viewpoints on the issue. It gave examples of several items which included input from palliative care doctors, Care Alliance and others who were concerned about the negative consequences that could arise from legalising voluntary euthanasia in this country.¹³  TVNZ submitted that while the Authority did not consider that the broadcast of balancing material over several years fulfilled the requirements of the standard, the period of current interest for the issue of voluntary euthanasia includes the months between the February item and the May/June items and therefore balance was achieved by these further broadcasts. TVNZ also referred to the Authority’s practice note on the balance standard in support of its submission, which states that ‘Long running “moral” issues, such as euthanasia or abortion, tend to have an ongoing period of current interest. It is accepted that… the broad issues in the debate are well known to the public and that different perspectives from both sides of the debate will be offered from time to time’.¹⁴    

Authority’s response to submissions and decision on orders

[35]  While we acknowledge TVNZ’s careful submission and the subsequent broadcasts which presented an alternative perspective on voluntary euthanasia, we are not disposed to changing our finding that the Seven Sharp item breached the balance standard.    [36]  We accept that this will appear to depart from the approach taken in earlier decisions and from the approach referenced by TVNZ outlined in a 2006 practice note issued by the Authority. Our reasons for this departure, in relation to this case, are as follows.   [37]  The concepts of ‘balance over time’ and ‘ongoing period of current interest’ applied in relation to certain issues should not, in our view, automatically absolve a broadcaster from the requirement to make reasonable efforts to achieve balance. At the time of this Seven Sharp broadcast on 17 March 2015, the broadcaster could not have predicted that Ms Seales’ case or some other event would arise several months later which would heighten interest in the voluntary euthanasia debate and result in views other than the pro-euthanasia view being presented. We do not think it can be right to say that the broadcaster should be able to rely solely on the good fortune of that in fact occurring, at some uncertain length of time after a broadcast in which no efforts were made to provide balance.    [38]  As noted in our findings and in TVNZ’s submissions, the broadcasts which TVNZ originally pointed to as providing balance for this particular item took place in July 2012 and October 2013.¹⁵  This suggests to us that no perspective opposed to voluntary euthanasia was presented between October 2013 and 17 May 2015, two months after the Seven Sharp item, once Ms Seales’ case had cropped up in the media.    [39]  If we were to accept without question that the concept of ‘balance over time’ applied here and that TVNZ’s coverage of a different story some months afterwards saved the 17 March item, it may have the consequence that no broadcast which discusses voluntary euthanasia (or any other long-standing moral issue) could ever be found to be unbalanced – no matter how one-sided – on the basis that the other side of the issue may be presented at some point in the future.  

Authority’s decision on orders

[40]  In all the circumstances, and having acknowledged that this particular case represents a departure from previous guidance on the application of this standard, we find that publication of our decision is sufficient and no order is warranted.    Signed for and on behalf of the Authority         Peter Radich Chair 10 November 2015   

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:   1      Right to Life’s formal complaint – 20 February 2015 2      TVNZ’s response to the complaint – 27 March 2015  3      Right to Life’s referral to the Authority – 7 April 2015 4      TVNZ’s response to the Authority – 3 June 2015 5      Right to Life’s submissions on orders – 28 August 2015 6      TVNZ’s submissions on the Authority’s provisional decision and orders – 8 September 2015  

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1 Francis, Gouge and Thompson and TVWorks Ltd, Decision No. 2011-104 at [26] ² Commerce Commission and TVWorks Ltd, Decision No. 2008-014 ³ For further discussion of these concepts see Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) and Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Radio (Broadcasting Standards Authority, June 2009) ⁴ Powell and CanWest TVWorks Ltd, Decision No. 2005-125 ⁵ See, for example, Dewe and TVWorks Ltd, Decision No. 2008-076 ⁶ See, for example, McQueen and TVWorks Ltd, Decision No. 2012-068 ⁷ See, for example, Right to Life NZ and MediaWorks TV Ltd, Decision No. 2015-003, McQueen and TVWorks Ltd, Decision No. 2013-081 and McQueen and TVWorks Ltd, Decision No. 2012-068 ⁸ See, for example, Early Childhood Council Inc and Television New Zealand Ltd, Decision No. 2013-017 ⁹ Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) ¹⁰ Right to Life NZ and MediaWorks TV Ltd, Decision No. 2015-003 at [12] ¹¹ For example, see Right to Life NZ and MediaWorks TV Ltd, Decision No. 2015-003; McQueen and TVWorks Ltd, Decision No. 2013-081; McQueen and TVWorks Ltd, Decision No. 2012-068 ¹² See John Burrows’ ‘Review of Balance Decisions’ 2015 at page 16: ‘The very rationale of the balance standard is consistent with freedom of expression in that it requires the presentation of more views than are present in the programme under complaint. It advocates more speech rather than less’. ¹³ See: Palliative care doctor speaks out against euthanasia (Seven Sharp, 2 June 2015); Lifting 'blanket' euthanasia ban might see 'two, maybe three a week', court told (One News Now, 27 May 2015); Fears that dying woman’s case will encourage vulnerable people (One News Now, 27 May 2015); and Terminally ill Wellington woman fighting for the right to die (One News Now, 17 May 2015) ¹⁴ Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) ¹⁵ See: Q+A: euthanasia debate (1 July 2012) and New report reignites euthanasia debate (Breakfast, 24 October 2013)