BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1)(a) of the Broadcasting Act 1989
Sunday – "Return to Sender" – item about the return to Sri Lanka of a 16-year-old woman who was deported despite claims that she had been sexually abused by family members to whom she was returning – included footage shot in Sri Lanka with members of the young woman's family and included comments about the sexual abuse of children in Sri Lanka – broadcaster allegedly failed to maintain standards consistent with law and order and breached young woman's privacy – item allegedly unbalanced, inaccurate and unfair

Findings
Standard 2 (law and order) – no New Zealand law in dispute – not upheld

Standard 3 (privacy) – privacy principle (vii) – consent form signed by grandmother on young woman's behalf – not upheld

Standard 4 (balance) and Guideline 4a – item discussed two controversial issues – (1) specific deportation and dangers for young woman – not unbalanced – not upheld (2) attitudes to child sexual abuse in Sri Lanka – view presented not balanced by other significant views – upheld (majority)

Standard 5 (accuracy) – no evidence of factual inaccuracies – not upheld Standard 6 (fairness) – item fair to young woman and her family – not upheld

Standard 6 and Guideline 6g (discrimination) – unbalanced discussion of attitudes to child sexual abuse in Sri Lanka – cumulative effect was to encourage denigration of Sri Lankans – upheld (majority)

No Order

This headnote does not form part of the decision.

Broadcast

[1] An item on the current affairs programme, Sunday, dealt with the return to Sri Lanka of a 16-year-old woman (“T”) who was deported from New Zealand after her plea to stay had been turned down. Her supporters claimed that she had been sexually abused by members of her family and she was frightened of returning to them. The item, entitled “Return to Sender”, included footage filmed in both New Zealand and Sri Lanka and was screened on TV One at 7.30pm on 22 February 2004.

[2] T’s grandmother, aunt and grandfather were interviewed in the item, which also featured comment from Sonali Amarasingham, a Sri Lankan born New Zealand television producer, Lianne Dalziel, in her capacity as Immigration Minister at the time, and Dr Rajan Rajansingham, the director of Escape, an organisation concerned with the sexual abuse of children in Sri Lanka.

Complaints

[3] Five complaints about the broadcast were referred to the Authority. All of the complainants considered that the broadcasts breached standards relating to balance, fairness and discrimination. Four of the five complainants also considered that the broadcast was inaccurate and breached T’s privacy and one of the complainants considered that the broadcaster had not maintained standards consistent with the maintenance of law and order.

[4] Each of the complaints is summarised below.

1. Sri Lankan Community in New Zealand (signed by Sarath Bulathsinghala)

[5] Mr Sarath Bulathsinghala complained to Television New Zealand Ltd on behalf of the “Sri Lankan Community in New Zealand” and said the complaint was supported by a total of 389 signatories.

[6] While expressing sympathy for the young woman who was deported, the complaint stated:

We deplore in no uncertain terms the biased, unbalanced, partial and unfair opinions expressed in the programme that amount to a blanket condemnation of Sri Lankan culture founded on Buddhist principles and spiritual values observed by the majority of the population and nurtured through a history spanning more than 2500 years.

[7] Elaborating on the complaint by reference to the specific standards, the complainants contended that T’s privacy had been breached as she was portrayed as a “sexually abused Sri Lankan girl”. Revealing her identity to New Zealand and the world, the complainants wrote, had not been in her best interests and had made her vulnerable to trauma, depression and possibly suicide.

[8] The complainants also argued that the item was unbalanced as there was no response by experts on Sri Lankan culture or child protection to the “humiliating” comments from Dr Rajansingham of Escape. Dr Rajansingham, the complainants stated, was not a specialist in child protection laws.

[9] The item was also unbalanced and partial, the complainants said, because Sri Lanka was portrayed:

… as a place with nothing else than filthy gutters, scavenging birds, stinking rubbish dumps, shanty dwellers and fathers with instincts worse than those of animals.

[10] The complainants also wrote that the statement that it was “the victim of sexual abuse and not the villains who ultimately end up suffering” in Sri Lanka was inaccurate. They maintained that there were organisations in place for child protection, and sexual abuse of children attracted a prison sentence of between 10 and 20 years.

[11] As to the fairness standard, the complainants said the programme commented:

… in this sprawling poor predominantly Buddhist nation, attitudes are fundamentally different to those in New Zealand. Those differences are at the heart of this story.

The complainants considered that this statement prepared viewers to accept the “twisted” claim that fathers in Sri Lanka thought it was their right to abuse their own daughters sexually. Any form of sexual abuse, the complainants argued, was unacceptable to Sri Lankans, regardless of religion.

[12] Arguing that the item had brought humiliation and indignity to Sri Lankans living in New Zealand, the complainants submitted that the damage caused by the programme was “irreparable”.

[13] The complainants attached to the complaint a summary of the services involved in child protection in Sri Lanka, and the laws relating to rape and other forms of child sex abuse.

[14] An apology and the broadcast of a correct item about Sri Lanka was sought.

2. Titus De Silva

[15] Mr De Silva complained that the item was unbalanced, unfair, and encouraged denigration of and discrimination against Sri Lankans. It was unbalanced as Sri Lankan government organisations responsible for the young woman were not represented and the impressions about child abuse in Sri Lanka given by the director of an “obscure” organisation (Dr Rajansingham of Escape) were not challenged. It was unfair to Sri Lankan fathers to suggest that incest was common, and denigrated Sri Lanka by showing a slum and suggesting that it was Colombo.

[16] Mr De Silva noted that the woman accompanying Sunday’s reporter (Sonali Amarasingham) could not be expected to be impartial in describing the events as she had lobbied the New Zealand government not to deport T.

3. Upali Manukulasuriya

[17] Dr Manukulasuriya signed the complaint made by Mr Bulathsinghala on behalf of the Sri Lankan community for the United Sri Lankan Association, New Zealand (Wellington) (see para [58]).

4. Ariya Randeni and Balaweera Weerasinghe

[18] Dr Randeni and Balaweera Weerasinghe complained that the broadcast was a “gross violation” of the standards relating to privacy, balance, accuracy and fairness. They said they were “appalled” at the way Sri Lankan culture was condemned. That culture, they wrote, had never tolerated Sri Lankan fathers as incestuous rapists.

[19] The letter complained that the broadcast breached T’s privacy by portraying her to New Zealand and the world as sexually abused and thus destroying her self esteem and dignity. They added that the law in Sri Lanka prohibited the publication of the identity of victims of sexual abuse in order to avoid stigmatism.

[20] Complaining that the item was unbalanced, the complainants repeated the complaint that the views of recognised experts on Sri Lankan culture and child protection were not advanced.

[21] With regard to accuracy, the complainants described as erroneous the statement that victims of sexual abuse ultimately ended up suffering, rather than the abuser.

[22] The broadcast was not impartial, the complainants said. The item had selectively quoted a passage in the report from the doctor who had examined T at the airport where T had said “I don’t want to go!”, but had failed to follow up on her subsequent “critical” question to her lawyer “Why did you lie to me?” That omission, they wrote, questioned the unbiased nature of the item. The complainants also alleged that:

• References to rape and sexual abuse were made by the reporter. None of the deportee’s family raised the matters unprompted.
• The interview with T’s maternal aunt was obtained by suggesting that the deportee’s grandmother was the focus of the item.
• T’s maternal aunt said that there were problems for T returning “there” — possibly meaning New Zealand — while the item suggested that the problems would arise if the deportee returned to Sri Lanka.
• The comment that the interview with the maternal aunt was ended by the arrival of her husband who wanted to suppress the rape story was not substantiated in the item.
• T’s lawyer’s claim that the item proved that the family had been dishonoured because T had spoken about the family rape reported in the “New Zealand Herald” soon after the broadcast was not supported by the item as no family member stated that T had been raped by her uncles.
• The item suggested that there were no services in Sri Lanka to protect T.
[23] In regard to fairness, the complainants reiterated the complaint that Sri Lanka was portrayed unfairly in the item. The broadcast, they wrote, was also unfair and misleading:
• to suggest that Sri Lanka’s problems with child abuse were unique
• to suggest that the Buddhist majority accepted incest as a social norm
• to use Dr Rajansingham to comment on child abuse – as he was not an expert or Buddhist, but worked for an international Christian organisation whose stated purpose was “to glorify Lord Jesus Christ by proclaiming his desire and incredible power to release people from sexual brokenness”
• to use people of Tamil ethnicity (Sonali Amarasingham and Rajan Rajansingham) in the preparation of the item when Sri Lanka was a predominantly Buddhist nation of people of Singhalese ethnicity.

5. Chula Rajapakse

[24] In addition to alleging that standards relating to balance, accuracy, fairness and privacy were breached by the broadcast, Dr Rajapakse’s complaint alleged a breach of Standard 2 (maintenance of law and order). Under the balance heading, Dr Rajapakse referred to the lack of response to Dr Rajansingham’s views, and the suggestion in the item that the visuals used were an adequate portrayal of Colombo.

[25] With regard to accuracy, the complaint focused on the comment that it was the victims of sexual abuse, not the perpetrators, who suffered; that attitudes in Sri Lanka were fundamentally different to those in New Zealand; the suggestion that, on the basis of one dysfunctional family, it was “stupid” for victims of child rape to speak out; that Sri Lankan fathers felt it was their right to abuse their children sexually; that Sri Lanka was a violent society; the item’s claim that 90 per cent of paedophilia occurs within the family; and the selective sources of information.

[26] As a result of the item’s imbalance and the inaccuracies, Dr Rajapakse wrote, a “gross” violation of the fairness standard occurred.

[27] Dr Rajapakse complained that the item violated the requirement to maintain law and order as he believed that TVNZ had not complied with the Sri Lankan law that required visas for visiting journalists.

Standards

[28] In view of the matters raised by the complainants, TVNZ assessed the complaints under the following Standards and relevant Guidelines in the Free-to-Air Television Code of Broadcasting Practice:

Standard 2 Law and Order

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Guideline 4a

Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Guideline 6g

Broadcasters should avoid portraying persons in programmes in a manner that encourages denigration of, or discrimination against, sections of the community on account of sex, sexual orientation, race, age, disability, or occupational status, or as a consequence of legitimate expression of religious, cultural or political beliefs. This requirement is not intended to prevent the broadcast of material which is:

1. 1. factual, or
   2. the expression of genuinely held opinion in news, current affairs or other factual programmes, or

   3. in the legitimate context of a dramatic, humorous or satirical work.

Broadcaster's Response to the Complainants

[29] In view of the commonality of many of the matters raised by the complainants and the similarity of TVNZ’s responses, the Authority has summarised the broadcaster’s responses by reference to the standards complained about.

Standard 3 – Privacy
[30] TVNZ advised that T was a “woman” aged 16 years. As “children” in the standards referred to people under the age of 14 years, the requirement relating to children’s privacy in privacy principle (vii) – that the broadcaster must act in the best interests of the child – was inapplicable.

[31] Further, TVNZ wrote, T and her guardian agreed to the release by their lawyer of information regarding the alleged sexual abuse. In view of the consent given, TVNZ pointed out that the privacy standard had not been breached. Nevertheless, it added, the item’s compassionate attitude reflected concern for T’s best interests. Further, T’s surname had not been broadcast and steps had been taken to prevent the distribution of the story overseas.

[32] TVNZ did not uphold the complaints that Standard 3 (privacy) had been contravened.

Standard 4 – Balance
[33] TVNZ argued that the item was not a review of Sri Lankan societal attitudes. The social aspects were referred to, it said, only as they related to the story being told. Several people had been approached for an interview, including the head of the Sri Lankan Child Protection Authority (Dr Harendra de Silva), but they had declined. However, TVNZ stated that Dr de Silva had recommended Dr Rajansingham as a suitably qualified authority to speak about problems of child abuse in Sri Lanka.

[34] Escape, TVNZ wrote, was a non-governmental organisation which aimed to eradicate child sex abuse, prostitution and exploitation, and worked with official agencies and:

The [complaints] committee felt that in the absence of a spokesperson for the Sri Lankan Child Protection Authority, Dr Rajansingham – his qualification endorsed by Professor de Silva – was an appropriate person to speak about the particular issues relevant to the return to Sri Lanka by the abused 16-year-old.

[35] It was also appropriate, TVNZ wrote, to interview someone in Sri Lanka rather than a member of the Sri Lankan community living in New Zealand. TVNZ also noted that the team from Sunday which visited Sri Lanka included a Sri Lankan woman (Sonali Amarasingham) experienced in television and journalism.

[36] Turning to the aspect of the complaints relating to the depiction of Colombo raised by some of the complainants, TVNZ said that the street scenes were chosen as they were near the convent where the teenager was being cared for. Nevertheless, TVNZ said, the pictures were not misleading as there was a “strong sense of poverty” in many parts of Colombo.

[37] TVNZ also said that prosperity was apparent in the scenes where the teenager’s grandmother and maternal aunt were filmed.

[38] With regard to the complaint that Dr Rajansingham’s comment that “some fathers” had sexual relationships with their daughters was unbalanced, TVNZ said he had expressed an informed opinion, and had used the word “some” rather than “most” or “all”. He had not implied that sexual abuse was the norm in any segment of Sri Lankan society. In his opinion, a social problem existed which needed to be dealt with.

[39] As for the complaint that the item was unbalanced owing to its use of Sonali Amarasingham, TVNZ acknowledged that it was apparent from the early sequence that she had some sympathy for the teenager but, it wrote, she apparently carried out her role competently and professionally.

[40] Overall in regard to the issue of balance, TVNZ said the matter had been highly publicised in New Zealand. Sunday, by examining through interviews the concept of the shame of a teenager sexually abused by family members, added to the balance by offering another perspective on the event. TVNZ contended:

It amounted to what the standard describes as a “significant point of view” being offered “within the period of current interest”.

[41] TVNZ did not uphold any of the complaints that the item broadcast transgressed the balance requirement in Standard 4.

Standard 5 – Accuracy
[42] Focusing on the statement that the victims of sexual abuse suffered rather than the “villains”, TVNZ contended that it was “strictly accurate”. Among other matters, T’s grandfather made it clear that she was not welcome in his home. TVNZ continued:

This issue was presented in the programme in the context of a range of interviews exploring the concept of shame as it applied to [T] and her family. Family members commented on the concept themselves, as did Dr Rajansingham.

[43] As for the complaint that the item was inaccurate in that it did not question T’s lawyer’s ethical conduct, TVNZ maintained that T’s question to her lawyer – “Why did you lie to me?” – was of little relevance to the issue addressed. The item, it continued, had reported accurately that the teenager did not want to go, and that she was being deported by the New Zealand government.

[44] Turning to the complaint that the item was inaccurate in that it did not validate the sexual abuse of T, TVNZ explained that such validation was not the purpose of the programme as it had not been denied. Rather, the item was concerned with the concept of shame which, in the view of Dr Rajansingham, placed T in some danger.

[45] TVNZ did not accept that the maternal aunt was unhappy to appear on the programme, and said that she had answered the questions put to her openly.

[46] As for the complaint that the interview was partial due to the use of the word “there” (see paragraph [122] above) TVNZ said it was satisfied with the quality of the work of the translator. The interview with T’s maternal aunt ended, it assured the complainants, because her husband did not wish it to continue.

[47] In regard to the complaint that the item was not impartial when no family member acknowledged that T had been raped in the item, TVNZ said that there was “general consensus” that she had been sexually abused by members of her family, and no family member denied it. Further, the claim had been accepted by the New Zealand government and the item’s focus was on the concept of shame.

[48] To the aspects of the complaints that the other information supplied by Dr Rajansingham was inaccurate, TVNZ repeated the points that he had referred to “some” fathers, and the sources available in Sri Lanka disclosed that child abuse did, in fact, take place.

[49] TVNZ explicitly rejected the complaint that the Tamils manipulated the story or that disputes between the Tamil and Singhalese communities were in any way relevant to the item.

[50] TVNZ commented that while some of the complainants did not accept Dr Rajansingham as an appropriate authority to speak on the issues, Sunday had carried out the appropriate checks and, as explained, had established his credentials for the “tightly focused” programme.

[51] The Standard 5 (accuracy) complaints were not upheld.

Standard 6 – Fairness
[52] Focusing on the complaints that the item suggested that the sexual abuse of children was culturally acceptable, TVNZ contended that the item did not suggest that all Sri Lankan fathers abused their daughters. The word “some” was used. Pointing to the existence of Escape and the Child Protection Agency, TVNZ argued that this acknowledged that some child abuse occurred. The item, TVNZ insisted, did not probe Sri Lankan or Buddhist societal norms – rather it was the story of one sexually abused teenager who was not wanted at home because of the shame associated with the abuse.

[53] Should the item be considered to have encouraged denigration of or discrimination against Sri Lankans contrary to Guideline 6g, TVNZ pointed to the exceptions in 6g (i) and (ii) for the broadcast of factual material or genuinely-held opinions, which it said would apply.

[54] In response to the specific complaints that the item was unfair outlined in para [22], TVNZ said:

• the item neither stated nor implied that Sri Lanka has low social values because it is a Buddhist nation
• the item did not deal with child abuse but was “tightly focused” on the circumstances regarding the concept of shame which faced one teenager
• the circumstances which led to Dr Rajansingham being interviewed were outlined and, TVNZ said, it was common knowledge that Tamil intellectuals had equal status to Singhalese intellectuals.

[55] TVNZ did not believe that any of the people who participated in or had been referred to in the programme had been treated unfairly, and it declined to uphold the Standard 6 complaints.

Standard 2 – Law and Order
[56] TVNZ said that the Sunday team had complied with all the requirements of Sri Lankan law of which it was aware and had openly carried their television equipment. TVNZ wondered whether Standard 2 applied to Sri Lankan law. It declined to uphold this aspect of Dr Rajapakse’s complaint.

Summary
[57] TVNZ commented to each complainant:

The [complaints] committee recognised the genuine pain you and those members of the Sri Lankan community you represent feel having seen the programme and your concern that some viewers might get an incorrect impression of Sri Lanka. It apologises for any offence the programme caused, but felt that – with the focus on the clearly much publicised 16 year-old woman – the item added valuable information about her present circumstances and the attitudes she faces back in Colombo. Screening the item was, the Committee believed, very much in the public interest and was in accordance with the principles surrounding freedom of speech and the public’s “right to know” which are central to section 14 of the New Zealand Bill of Rights Act.

Referrals to the Authority

[58] To aid readers of this decision to understand the broadcasting standards matters raised in the referrals, the issues are recorded by the standard allegedly breached. The specific complainants consequently are not identified. The Authority observes that not only do the complainants share similar concerns about the broadcast, it is apparent that at least some of the complainants have co-operated with each other in preparing the referrals. That is made clear, for example, by some complainants using the identical material from Sri Lanka about the role of Dr de Silva. The Authority also advises that Dr Manukulasuriya, who was one of the signatories to the Sri Lankan community’s complaint filed by Mr Bulathsinghala, completed a referral in addition to that from Mr Bulathsinghala on the community’s behalf. The referral was based on TVNZ’s letter in response to the community’s complaint.

Standard 3 – Privacy
[59] Questioning the use by TVNZ on this occasion, but not elsewhere, of the term “16-year-old woman”, some of the complainants contended that, regardless of the description used, her privacy was violated by the item. They added that it was an offence under Sri Lankan law for a journalist to identify a sexually abused person.

[60] It was also argued that it was unlikely that the “girl and the guardian” gave informed consent and it was suggested that the Authority investigate the processes which had been followed. It was also unlikely, it was suggested, that the teenager was in a fit state to have given informed consent.

[61] Some of the complainants did not accept TVNZ’s claim that the item reflected both T’s best interests and a concern for her welfare. Rather, it was “biased and partial” as it tried to validate “a pre-conceived notion” that the family would reject her and she would be in danger if she was sent home.

[62] In response to TVNZ’s comment that for the sake of sensitivity, her surname had not been disclosed, it was pointed out that the camera had ensured her face was seen although she had been apparently trying to hide her appearance.

Standard 4 – Balance
[63] In response to TVNZ’s account of how it was put in touch with Dr Rajan Rajansingham by Professor Harendra de Silva of the Sri Lankan National Child Protection Authority (NCAP), an email from Professor de Silva sent to Balaweera Weerasinghe was enclosed by some of the complainants. It read (in full):

I was out of the country for 3 weeks and returned only today.

One Mr Senewiratne spoke to me one night (I was not sure who he was) and said that his sister (I assume was Sonali) from NZ would like to speak to me. When I spoke to her she wanted to fix a time to interview me. When I said somewhere about 10.30am she said she was going to ESCAPE, and then I gave her 12 noon. Of course I know ESCAPE, which is an evangelical organisation but does some work on rehabilitation of sexually abused children. They have attended several training programs for counsellors organised by the NCPA. Dr Rajan [Rajansingham] is also known to me but I NEVER GAVE PERMISSION FOR ESCAPE TO BE MY SPOKESPERSON. Rajan is an epidemiologist.

When I arrived in the office this lady (Sonali) from NZ had spoken to my office and had left a message that they would not be able to come. It is also true that I was going to India on that NIGHT and my wife was leaving for the UK. But I never cancelled the appointment.

Regards

Harendra

[64] In view of the email, TVNZ’s comment that Professor de Silva was unable to spare the time to be interviewed was said to be “blatantly untrue”.

[65] One of the complainants considered that Sunday’s team had cancelled the appointment and speculated that it had done so in view of the “non-expert’s ‘juicy’ comments about Sri Lankan fathers” which had been obtained. Moreover, the “contentious and abhorrent” remarks suited Sunday’s pre-conceived notion.

[66] In further support of their argument that Professor de Silva had not endorsed Dr Rajansingham, the complainants referred to a press release from Professor de Silva (dated 11 March 2004) as chairman of the Sri Lankan National Child Protection Authority. In regard to the impression which might have been gained that no woman was safe in Sri Lanka and that their fathers rape most girls, the statement recorded:

The TV interview of a N.G.O. person in Sri Lanka who is not an authority on the subject may give false impressions. Smart editing of a recorded interview could also distort the actual meaning of an interview.

[67] Some of the complainants explained that they did not intend to belittle Dr Rajansingham. Rather, they had emphasised that he was not a specialist.

[68] As for the footage which disparaged Colombo, some of the complainants contended that the visuals used were selected to confirm the notion that the teenager was being returned to appalling surroundings.

[69] Surprise was expressed that Sunday had not used the Sri Lankan community in Auckland to learn about the governmental and non-governmental organisations available in Sri Lanka. One doctor in Auckland, it was pointed out, had been involved in the establishment of the Sri Lankan National Child Protection Authority and would have been able to assist in arranging meetings. It was also pointed out that while TVNZ dismissed the idea of seeking help from the Sri Lankan community about the issue of child abuse, it had used a person with journalistic skills as a “fixer”.

[70] Concern was expressed that Sri Lankan culture was treated in a partial way. That concern included questioning the relevance of the comment that 90 per cent of paedophilia occurred at home.

[71] Further, it was questioned whether TVNZ accepted the abuse as a fact by describing the teenager as “sexually abused”, while the term used by Professor de Silva was “allegedly raped”. Some of the complainants asked whether TVNZ or the Sri Lankan criminal justice system should be the arbiter of that point.

Standard 5 – Accuracy
[72] Focusing on the item’s statement that the victim of sexual abuse in Sri Lanka suffered more than the “villain”, some of the complainants rejected TVNZ’s contention that the item confirmed the accuracy of the comment because:

• Dr Rajansingham, from an evangelical organisation, was neither an expert nor a member of the ethnic community to which the teenager belonged.
• The complainants said it recorded, contrary to the grandfather’s comment in the item that his grand-daughter would not be welcome, that her father and grandfather had helped her after the initial revelations about the abuse. Such assistance questioned the concept of shame promoted in the item.

  Because the questions and answers were translated, it was not always clear to whom the questioner was referring and the reporter’s contention in summary “By coming out [that she was raped by family members] [T] has shamed the entire family” involved half-truths which seriously questioned the accuracy of the programme.

[73] Other alleged inaccuracies were:

• not following up in the interests of the public’s right to know, the teenager’s accusation to her lawyer that she had been lied to
• not validating that the teenager had in fact been sexually abused
• not confirming how and why the maternal aunt’s husband terminated the interview with her, other than to suggest it was an aspect of the concept of shame.

Standard 6 – Fairness
[74] Some of the complainants contended that the broadcast, in view of the lack of balance and the inaccuracies, was unfair and humiliating to the Sri Lankan community in New Zealand, and suggested that the community belonged to a “weird culture based on incest”. It had also brought shame to the children of the community members.

[75] The unfairness in the matters dealt with, some of the complainants wrote, was reinforced by the depiction of Colombo as a “shanty town”.

[76] Some matters that raised an alleged inaccuracy were also considered to be unfair, including the use of Dr Rajansingham as an expert.

Standard 2 – Law and Order
[77] The complaint from Dr Rajapakse that the Sunday crew breached Sri Lankan law was repeated, as was the question he raised as to whether this was a matter for the Authority to rule on.

Broadcaster’s Responses to the Authority

[78] In its responses to the Authority, TVNZ argued that, on the basis of its replies to the complainants, the complaints should not be upheld.

[79] TVNZ contended that as the promo was not raised by any of the complainants in their original complaints, the Authority should disregard that aspect of the referrals.

[80] In response to the complaint that TVNZ had a “pre-conceived idea” that T would be rejected by her family if sent to her home country, TVNZ said that this was the basis of her claim for refugee status. It was also one of the reasons why Sunday sent a team to Sri Lanka. Her aunt confirmed that she was raped and abused, and her grandfather said that she was no longer welcome at home.

Standard 3 – Privacy
[81] TVNZ advised that it had used the word “woman” in the correspondence, although the item used the word “girl”, to ensure that, during the complaints process, T was not regarded as a child for the purposes of the privacy principles.

[82] TVNZ also advised that it had a signed agreement to tell the story of the teenager and her grandmother, and their co-operation was abundantly clear in the item. TVNZ also stated that its reporter had never met the teenager’s lawyer, and his dealings with the family had been through the grandmother.

Standard 4 – Balance
[83] TVNZ explained that Escape was a widely recognised agency and outlined the roles of Dr Rajansingham and Escape. TVNZ also wrote:

Hurtful though it may be for the complainants, we hold to the view that the image portrayed of Sri Lanka was true and accurate. Poverty is widespread.

[84] On the basis that arrangements for making programmes had to be flexible, TVNZ said that it was unable to arrange an interview with Professor de Silva until late in the afternoon and then a mutually acceptable time could not be arranged. It added:

We point out that nowhere in the item was it stated that Dr Rajansingham was a spokesperson for Professor de Silva. Nevertheless, as the letter quoted by the complainants made clear, Professor de Silva knew that Sunday was interviewing Dr Rajansingham and voiced no concerns or problems about the man’s credentials.

[85] TVNZ also emphasised that the item was not a story about Sri Lanka or the Sri Lankan community but about one teenager forced to return to the place she feared the most.

[86] As for the images of Colombo, TVNZ said that they were entirely accurate. The item, it said, was balanced in its comments about the sprawling nature of Colombo and that it was a predominantly Buddhist city.

Standard 5 – Accuracy
[87] Explaining that the interviews with the teenager’s family members were lengthy and involved, TVNZ said that the teenager’s aunt and grandfather both used the exact word “shamed”, and that, as she was an outcast, she was not welcome back. The reporter’s comments, TVNZ said, were an accurate summary of what he had been told.

[88] The excerpts used, TVNZ contended, were a fair and accurate summary and the interviews were conducted on the basis that the teenager was still in New Zealand.

[89] TVNZ pointed out the Refugee Status Appeals Authority had accepted the teenager’s account that she had been sexually abused by her uncles.

[90] TVNZ reported that Dr Rajansingham had stated that “some”, not “most”, Sri Lankan fathers abused their daughters. TVNZ, it added, was not responsible for what was published in the “New Zealand Herald”.

[91] In conclusion, TVNZ maintained that the item was impartial and accurate.

Complainants’ Final Comments

[92] Each of the complainants made final comments.

Standard 3 – Privacy
[93] On behalf of the Sri Lankan community in Auckland, Mr Bulathsinghala maintained that the item breached T’s privacy, and challenged the adequacy of the documents in which the teenager and her grandmother gave consent to TVNZ to tell their story. They maintained that the documents which had been signed authorised their lawyer to release documents to an opposition member of Parliament. That written consent, they contended, applied to those documents and did not justify T’s visual portrayal.

Standard 4 – Balance
[94] Some of the complainants maintained that Dr Rajansingham was not an expert and a contribution from Professor de Silva would have better served to provide balance.

[95] In view of TVNZ admitting that it was the “fixer” (Ms Amarasingham) who spoke to Professor de Silva, not the reporter, what, they asked, were TVNZ’s “other lies?” It was stated that it was now apparent that it was not Professor de Silva who had been unable to spare the time for an interview; rather the Sunday team had cancelled the appointment. Dr Rajansingham’s statement outlining “disgusting and deplorable behaviour”, they insisted, required research and validation before broadcast.

[96] The National Child Protection Agency was the appropriate agency to be approached for an interview, the complainants said, as it had been praised by the United Nations as a model worthy of emulation in developing countries. The complainants denied any involvement in a campaign to disparage Dr Rajansingham.

Standard 5 – Accuracy
[97] It was noted that TVNZ had not responded to the point, disclosed by the Refugee Status Appeals Authority, that the family had not abandoned T because of “shame” when she first revealed the sexual abuse.

[98] Questioning whether the broadcast fairly summarised the interviews with the family members, some of the complainants said that because of the publicity the case received in Sri Lanka, the family would have been aware that T was being returned to Sri Lanka.

Standard 6 – Fairness
[99] Reiterating their complaints that the item was unbalanced, some of the complainants argued that the item was also unfair and they expressed their concerns at TVNZ’s apparent arrogance and callousness.

Further Correspondence

[100] TVNZ responded to two points in the final comment from Dr Randeni and Balaweera Weerasinghe. First, it denied their contention that it was “looped into a deliberate media campaign”. Observing that the allegation under the heading of fairness had no relevance to the formal complaint, TVNZ noted that each media outlet examined the content of other media outlets, but they did not, except on very rare occasions, “collude in the coverage of any news events”.

[101] As for the complainants’ criticism that Professor De Silva was not interviewed for Sunday, TVNZ pointed out that the previous correspondence explained that Sunday had hoped to interview the professor, but “it was not possible to identify a time which was suitable to both parties”. On the basis that there was another person with appropriate expertise, TVNZ stated that it believed that Dr Rajansingham was qualified to talk about the environment the young woman came from and was returning to. It noted:

With respect to the complainants, we remind the Authority that this was an item narrowly focussed on the welfare of one young person…. Dr Rajansingham was called upon to comment because he is very experienced in dealing with sexually-abused youngsters. That he may be a Tamil, or a Christian has no relevance to that context.

[102] Dr Randeni and Balaweera Weerasinghe responded to each of the above points. They maintained their view that TVNZ was part of a “deliberate media campaign” in view of the similarity of the material in Sunday and the following day’s “New Zealand Herald”.

[103] They acknowledged that Professor De Silva was not the only expert who could have been interviewed, but they did not accept that Dr Rajansingham was a “real” expert. They also described TVNZ’s earlier comment that it had been unable to make an appointment with Professor De Silva as a “blatant lie”. TVNZ, they said, did not turn up to the appointment which had been made.

[104] These complainants contended that TVNZ had “a fixation” to convey the view that T’s life was in danger and, in doing so, moved beyond her family “to make erroneous and slanderous comments about the Sri Lankan society, culture and poverty etc”. Those conclusions were based on some “vile statements of a single person”.

[105] Referring briefly to past and present events in Sri Lanka, the complainants argued that ethnicity and religion were relevant. In view of Dr Rajansingham’s background, it was similar to asking “a person like Tame Iti to comment on Pakeha culture and its value systems”. Dr Rajansingham’s graphic comment needed to be balanced by some authoritative comments from another expert. Dr Randeni and Balaweera Weerasinghe wrote:

An outraged community would not have taken to Auckland streets (for the first time in the history of Sri Lankan immigrants who have lived in New Zealand for more than a half century), expressed their anger by holding a public meeting and resorting to individual and group complaints to authorities, had TVNZ shown an iota of respect to these principles of balance, accuracy and fairness.

Further Information Sought by the Authority

[106] Before determining the complaint, the Authority sought from TVNZ information about the source of the photographs of the teenager used in the item. It also saw the copy of the consent form TVNZ referred to. Further, TVNZ was asked whether it wanted to provide further details as to the sources of the information about Sri Lanka which it had used.

[107] In its response, TVNZ said that the photographs had been provided to its Asia correspondent by T’s mother who lived in Hong Kong. It sent the Authority two documents signed by the teenager’s grandmother which it said were the consent forms referred to. TVNZ noted that both consent documents were on forms with the Screentime-Communicado (the independent production company involved in the making of the item) letterhead. It explained that both Screentime and TVNZ had been interested in covering the teenager’s return to Sri Lanka and an agreement had been reached whereby a reporter from TVNZ presented the item which had been directed by a member of Screentime’s staff.

[108] As for its sources of information about Sri Lanka, TVNZ stated that news organisations did not disclose their sources. Specific information, it added, had been supplemented on this occasion by a variety of readily available public references.

[109] Comments on TVNZ’s letter were received from some of the complainants. Dr Manukulasuriya raised questions about the clarity of the consent forms. He also questioned the refusal by TVNZ to disclose its sources, commenting:

If the alleged attitudes are common practice and common knowledge, there should not be any secrecy about the sources of this information. It doesn’t have to be based on secret witnesses to condemn the whole nation as abusers of children.

[110] Dr Rajapakse questioned TVNZ’s contention that sources had to be protected. He also observed that the teenager had not been victimised on her return to Sri Lanka as the item had suggested would occur. Rather, he said, she was now living in another country as a student.

[111] The issue of consent was also raised by Dr Randeni and Balaweera Weerasinghe. They noted that the teenager’s face had been hidden in some recent photographs of her shown by TVNZ and questioned why her face had not been hidden earlier. They also considered the consent forms provided to be unclear and unsatisfactory. As for the item’s sources, they wrote:

Balance: TVNZ takes the high ground of not revealing the sources as if they have obtained information on attitudes of Sri Lankans, the Sri Lankan society in general and in regard to child abuse from very secret sources that cannot be divulged.

This view requires to be compared with TVNZ’s replies to the complainants that National Child Protection Agency Chairman was not in a position to give an appointment (and subsequently changed stance when he rebutted it), that the views of the Sri Lankan community are irrelevant and holding steadfastly that Dr Rajan Rajansingham’s views cannot be doubted or questioned.

Authority's Determination

[112] The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Procedural Issues

[113] Dr Upali Manukulasuriya was a signatory to the initial complaint lodged by Sarath Bulathsinghala on behalf of the Sri Lankan community in New Zealand. He signed specifically on behalf of the United Sri Lankan Association, New Zealand (Wellington). He then made a referral to the Authority in his own name and TVNZ questioned his right to do so as he had not lodged an individual complaint.

[114] The Authority finds that, as he was a prominent signatory to the community’s complaint, he was entitled to make a referral in his own name provided the referral was confined to the matters raised in the original complaint made to TVNZ. Because the referral was confined in this way, the Authority accepts his referral as a valid referral under the Broadcasting Act 1989.

[115] The Authority also notes that its task is confined to a review of the programme broadcast on Sunday on 22 February 2004. Although some complainants referred to a promo for the programme when they referred their complaints to the Authority, the promo was not raised in any of the original complaints and, accordingly, is excluded from the Authority’s deliberations.

Privacy

[116] Pointing out that the young woman was the victim of sexual abuse, the complainants contended that the programme breached her privacy when it showed footage of her.

[117] Before it considers whether a person’s privacy has been invaded, the Authority must determine whether or not the person has been identified. While some of the footage showed a distressed person in a wheelchair in circumstances where it was difficult to see the facial features, there was some footage where T was clearly identifiable. The Authority finds that T was identified.

[118] As consent to filming is an absolute defence to a privacy complaint, the Authority has considered whether it had been given in this instance.

[119] Privacy Principle (vii) reads:

An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy. Children’s vulnerability must be a prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interest of the child.

[120] As noted above (paras [106] and [107]), the Authority sought confirmation from TVNZ that consent had been given and, despite the somewhat haphazard way in which the consent forms have been completed, it accepts that informed consent was given by the grandmother on her own behalf and on behalf of her granddaughter. The Authority notes that while T was old enough to consent (i.e. older than 14) she did not sign the consent forms, apparently because she was highly distressed and unable to do so. In these circumstances, the Authority accepts that the grandmother appeared to be lawfully acting on T’s behalf and was able to give consent for her. The Authority has also considered the principle that broadcasters satisfy themselves that a broadcast is in the best interest of the child. Although it is not strictly applicable to the present case – because T was not a child – the Authority considers it arguable that the spirit and intent of the principle should equally apply due to T’s vulnerability and apparent incapacity. The Authority accordingly records that it considers that the broadcast was in fact in T’s best interests, given her situation and the fact that the matters broadcast were already in the public arena. The Authority does not uphold the privacy complaints

Balance

[121] Standard 4 (balance) requires that when a programme deals with a controversial issue of public importance broadcasters must present significant points of view either in the same programme or in other programmes within the period of current interest.

[122] TVNZ argued that the item was not a story about Sri Lanka and the Sri Lankan community. However, the Authority does not consider that the item was confined to a discussion of T’s deportation. In view of the comments in the item about the society to which she was being returned, the Authority is of the view that there were two controversial issues discussed in the programme. The first issue was the specific issue of whether T should have been deported from New Zealand to Sri Lanka, the country where she was sexually abused.

[123] As to the second issue, the Authority is divided in its interpretation. A majority considers that the item extrapolated from T’s specific story to discuss the attitudes Sri Lankans have to child sexual abuse and how those attitudes impact on the victims’ futures. However, the minority (Diane Musgrave) considers that the second controversial issue was the attitudes Sri Lankans have to the victims of child sexual abuse and how those attitudes impact on the victims’ futures.

[124] Before discussing whether balance was achieved in relation to either of the two controversial issues discussed in the programme the Authority makes two observations.

[125] The Authority notes that some of the complainants considered that observations made about Colombo in the item were unbalanced, as they allegedly inaccurately presented a “third world” image of the city. The Authority does not consider that the depiction of Colombo raised any controversial issue of public importance.

[126] The Authority also notes that some issues brought up by the complainants as raising questions about the item’s balance were only considered to the extent they raised issues in relation to the controversial matters discussed in the item. These matters included:

• TVNZ’s efforts to arrange an interview with Professor de Silva in Colombo
• Professor de Silva’s opinion of Dr Rajansingham
• Dr Rajansingham’s ethnicity and religion and Escape’s ideology
• the services available to T on her return to Sri Lanka
• the role of Sonali Amarasingham as a participant in the production of the item and her earlier assistance to T in New Zealand.

T’s story

[127] Dealing with the first controversial issue of public importance, the Authority considers that the broadcast, to the extent that the complaint focused on T’s specific fears, was sufficiently balanced.

[128] The item highlighted the deeply-felt concerns of T and her grandmother. The Refugee Status Appeals Authority in appeal numbers 74632 and 74633 (dated 27 June 2003 before which T and her grandmother failed in their claims for refugee status) had referred to the aggressive attitude and possibly violent actions T might be subject to on her return to Sri Lanka. This Authority accepts that TVNZ made efforts to obtain comment on whether the concerns stated in the item were justified. Lianne Dalziel, the Immigration Minister at the time, offered the government’s perspective that T’s case did not warrant the granting of residency on compassionate grounds. T’s family and Dr Rajansingham agreed that the complainant had legitimate fears. The Authority accepts that it was appropriate for TVNZ to use comment from Dr Rajansingham on T’s case, as he was the spokesperson for an organisation that deals with sexually abused young people in Sri Lanka. In these circumstances, the Authority finds that TVNZ made reasonable efforts and gave reasonable opportunities to present significant points of view in relation to its treatment of T’s story.

Attitudes of Sri Lankans to child abuse

[129] The Authority is divided in its opinion about whether the representations made in the item about attitudes to child abuse in Sri Lanka caused the item to breach Standard 4. A majority of the Authority considers that the item was unbalanced. A minority (Ms Musgrave) disagrees.

[130] In the majority’s view, the item implied that Sri Lankan societal attitudes to child abuse and incest are abhorrent, and are significantly different from the attitudes held in New Zealand society. It notes that the reporter in Sri Lanka described Sri Lankan society as “fundamentally different”. He said:

In this sprawling, poor and predominantly Buddhist nation attitudes are fundamentally different to those in New Zealand, and those differences lie at the heart of this story…

[He then explained that the grandmother had claimed that T’s life was in danger if T returned to Sri Lanka.]

… Now this might be strange to most New Zealanders, but in this society it’s the victims of sexual abuse, not the villains, who ultimately end up suffering.

[131] The majority notes that Dr Rajansingham then told the reporter:

There are some parents, there are some adults, especially fathers who are involved in incest, who feel that it is their right to sexually abuse or to rape, if you like, their daughters. I have come across adult male fathers who have said: “this is the tree that I have planted so I have the right to the first fruits”.

[132] Dr Rajansingham also said:

Ten years ago any child who was found having sexual relations with an adult who was not a member of the family would have been charged for prostitution. So things have got a little better, but still a majority of children would be forced to be silent.

[133] Because of the challenging views put forward by Dr Rajansingham about incest and child abuse, which were endorsed and highlighted by the reporter’s prior observations, a majority of the Authority considers that some balance was required to these statements. The majority considers that no evidence was provided in the item, or in correspondence received from TVNZ to justify the statement that child abuse in Sri Lanka, and attitudes to victims, were “fundamentally different” as the item claimed.

[134] The majority considers that insufficient efforts were made to present significant views about attitudes to child abuse in Sri Lanka. Nowhere in the item was it acknowledged, even fleetingly, that the view presented was not universally accepted.

[135] Having determined that balance was not provided in the programme, the majority also finds that there was no evidence provided to suggest that balance was provided in other programmes or other media during the period of current interest.

[136] The majority finds that Standard 4 was breached.

[137] A minority (Diane Musgrave) considers the item addressed attitudes to the victims of child sexual abuse in Sri Lanka, rather than attitudes to child sexual abuse per se, claiming these were “fundamentally different” to those prevailing in New Zealand. In the view of the minority, these attitudes were clearly manifested by T’s extended family in the programme. T’s aunt and grandfather were prepared to ostracise her for speaking out and “shaming” the family.

[138] Dr Rajansingham, a local epidemiologist with expertise in the area of child sexual abuse, confirmed that T’s was not an isolated case. His comments provided an historical context for prevailing attitudes. He added that "things have got better, but still a majority of children would be forced to be silent."

[139] Given the experiences of T, the attitudes of her family, the informed opinion of a local expert in the field, and especially given the aim of the item – to investigate why T, a victim of child sexual abuse, was so afraid to return to Sri Lanka – the minority believes the item was fair and balanced.

Accuracy

[140] The complainants considered that there were a large number of inaccuracies in the item. To the extent that some of these matters raised issues best dealt with under the Authority’s consideration of Standard 4 (balance), they are not addressed again in this section of the decision.

[141] The Authority does not uphold any of the complaints that the item was inaccurate. Specifically, it notes:

• The Authority considers that the statement made in the item that the victims of sexual abuse suffered more than the villains in Sri Lanka is best examined under Standard 4, in view of the difficulties in proving its accuracy and the context in which the reporter’s statement was made. The statement was an extrapolation by the reporter from the situation T found herself in upon her return to Sri Lanka.
• The Authority considered the complaint that the item was inaccurate because it did not address T’s lawyer’s ethical conduct. It agrees with TVNZ’s assessment that the lawyer’s conduct was peripheral to the issues addressed in the item.
• Some of the complainants questioned whether the item accepted, without sufficient investigation, the allegation that T had in fact been subject to sexual abuse. It was also alleged that the item was partial because no family member acknowledged that T had been raped. These are not matters which the Authority has investigated as it is satisfied that TVNZ had a reasonable basis upon which to present the abuse as a matter of fact in the item. The Authority accepts the situation is as outlined by the RSAA, which accepted that the abuse had, in fact, occurred. (The RSAA investigated this matter because it was the basis of the claim for refugee status on compassionate grounds.)
• As for the complaint that the interview was partial due to the use of the word “there” the Authority accepts TVNZ’s argument that the translation in the item was satisfactory.
• As to the complaints that other information supplied by Dr Rajansingham was inaccurate, whether Dr Rajansingham was an appropriate authority to speak on the issues and whether the story had been manipulated by Tamils, the Authority considers that these matters are best dealt with as questions of balance and has done so above in its reasoning in relation to Standard 4 (balance).
• The Authority considers that the depiction of Colombo in the item was not inaccurate, for the reasons advanced by TVNZ in paragraph [36].
• The Authority notes that it has been unable to confirm the figure advanced in the item that “as much as 90% of child abuse” in Sri Lanka occurs within the home. However, it considers that it was not advanced as a precise percentage and while the Authority is disappointed that TVNZ has not been able to provide the source, it is prepared to accept that the “as much as” introduction indicated some degree of flexibility and, accordingly, concludes that the figure cannot be labelled as “inaccurate”.

[142] The Authority finds that Standard 5 was not breached.

Fairness

[143] The Authority does not uphold the complaints that the item was unfair to T or her family. It is of the view that the item was, in view of the Authority’s acceptance of the facts as outlined in the RSAA’s ruling, both a reasonably accurate and fair account of T’s situation.

[144] The Authority does not uphold the complaints that the item was unfair to the majority Singhalese culture by interviewing a person who is a Tamil and works for a Christian organisation. It notes that Dr Rajansingham was asked for his views about child abuse, both at the general level and the probable impact on the young woman, and he was entitled to and expressed his opinions fully and fairly. It would be inappropriate to assume that he was unable to comment fairly on the issue of child abuse in Sri Lanka simply by virtue of either his ethnicity or his religion. Dr Rajansingham was not commenting specifically in relation to either Singhalese people or Christians, and his own race and religion are irrelevant considerations in determining the fairness or otherwise of the use of his comments about child abuse.

[145] The complainants also contended that the item was unfair to Sri Lankans. This matter is addressed in the next section of this decision.

Denigration

[146] Guideline 6g states that broadcasters must not encourage denigration or discrimination of sections of the community on account of, among other things, their race.

[147] The Authority notes that it adopts the meaning of “race” that underlies the International Convention on the Elimination of All Forms of Racial Discrimination, to which New Zealand is a party. That meaning is plain from the Convention’s definition of the term “racial discrimination”, which is:

any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. (emphasis added)

Accordingly the Authority accepts that discrimination or denigration on the basis of race includes discrimination or denigration on the basis of national origin, in the present case, Sri Lankan national origin.

[148] The issue for the Authority in the present case is whether Return to Sender in its discussion of Sri Lankan societal attitudes towards child abuse and incest, encouraged the denigration of Sri Lankans.

[149] While Standard 6 refers to both denigration and discrimination, the denigration aspect of Guideline 6g is apposite to this case.

[150] The term “denigration” has consistently been defined by the Authority as meaning a blackening of the reputation of a class of people. (See for example Decision No 1997-008). Furthermore, it is also well established that a high threshold is required in order to find that a broadcast encourages denigration.

[151] The Authority considers that the item made the following assertions:

• attitudes in Sri Lanka are “fundamentally different” to those in New Zealand as it is the victims of sexual abuse rather than the villains who suffer
• T’s life was in danger due to environmental factors in Sri Lanka
• some Sri Lankan parents, especially fathers feel that it is their right to rape their daughters
• victims who speak out about sexual abuse are brave, although the legal position has improved somewhat.

[152] The Authority is divided in its conclusion about the application of Standard 6 (Guideline 6g) to the assertions made in the item. A majority of the Authority¹ considers that the item implied that Sri Lanka has a significant problem with child sex abuse and incest. The majority also accepts that there is a body of evidence, from international and Sri Lankan sources, to support that implication.

[153] The majority notes that, of itself, the programme’s identification of a significant incidence of child sexual abuse and incest in Sri Lanka does not denigrate Sri Lankans generally. It is universally known that child sex abuse and incest occurs throughout the world and that its exact incidence in any country is impossible to measure.

[154] In the view of the majority, the cumulative effect of the comments made in the item was to convey the message that, compared to New Zealand, Sri Lankan society as a whole has “fundamentally different” attitudes to child sexual abuse in that victims are blamed and illegal sexual practices are tolerated or even accepted. This was further aggravated by the reporter again attributing attitudes to society as a whole, by asking Dr Rajansingham, “So in this society, when a child speaks out, is it bravery, or is it stupidity?” (emphasis added)

[155] The majority considers that the programme’s failure to further explore this alleged fundamental difference reinforced the idea of Sri Lankan societal attitudes to child abuse being dysfunctional in a manner unknown in New Zealand. Resulting directly from this failure, the item implied that grossly dysfunctional attitudes to child sexual abuse ran right through Sri Lankan society, and that it was this that constituted the fundamental attitudinal difference. In the majority’s view, the item needed to at least acknowledge that while elements of Sri Lankan society might hold such views, similar views are also held by elements of many other societies including New Zealand. The conclusion of the majority is that the implication left by the programme blackens the reputation of all Sri Lankans and is accordingly denigratory in terms of Standard 6. Therefore, the majority upholds the complaints that the broadcast breached Standard 6 (Guideline 6g).

[156] For the avoidance of doubt, the majority points out that it does not wish to prevent the broadcast of programmes which present unpalatable truths that might be considered to reflect negatively on a section of society. It upholds the right of broadcasters to examine such issues without fear of unreasonable restriction. However, broadcasters have a responsibility to ensure that such information stands up to rigorous scrutiny; that its presentation is fair, accurate and balanced, and that a contextual framework is provided to ensure that viewers are not left with an incorrect and unfair perception of a section of the community, but rather an understanding of the nature of the issue. In this case, the majority finds that the broadcaster’s failure to provide sufficient context left viewers with just such a perception of Sri Lankan society.

[157] A minority (Diane Musgrave and Paul France) disagree that the item denigrated Sri Lankans. The minority is divided in their reasoning.

[158] In Ms Musgrave’s opinion, the item did not state or imply that child sexual abuse was unique to, or more widespread among Sri Lankans than other communities. The item did state that as much as 90 percent of abuse happens in the home, which she accepts is shorthand for a very high proportion. It is accepted that within New Zealand most sexual assaults are committed by someone who is known to the victim. This makes it highly probable that a large proposition of these assaults occur within the home, especially those involving incest. The same logic almost certainly applies in other countries, including Sri Lanka.

[159] Ms Musgrave also accepts that incest is a sad fact in many communities and the comments made by Dr Rajansingham regarding some fathers believing they had a right to abuse their daughters could probably be applied to any community. Therefore she does not believe the threshold was approached and does not uphold the complaints that the broadcaster breached Standard 6 (Guideline 6g).

[160] In Mr France’s opinion two critical points were made in the item which are relevant to the complaints that the item was denigratory. They were:

• Sri Lankan society is "different" to New Zealand society because it generally makes victims of sexual abuse suffer, rather than the abusers.
• Some Sri Lankan men feel they have the right to abuse their daughters.

[161] Mr France notes that, while a majority of the Authority considers that the item was unbalanced, in that it did not provide alternative perspectives to the points noted above, and did not note the efforts of many groups in Sri Lanka to bring about change, he is aware of notable and authoritative international commentary which lends support to the points made. As an example, UNICEF notes in its website that, in Sri Lanka:

Sexual activity is often seen as a private matter, which makes communities reluctant to act and intervene in cases of sexual exploitation. To end the tolerance for sexual abuse, UNICEF acts to improve community attitudes customs and practices towards children and their rights… (see http://www.unicef.org/infobycountry/srilanka_906.html)

[162] In Mr France’s view, the item reported a widely understood view that Sri Lankan society has an unfortunately closed and tolerant attitude to sexual abuse within the family. Unpalatable but nevertheless accepted information about societies should be free to be disseminated, provided the reporting is not otherwise in breach of broadcasting standards.

[163] Mr France also notes that the first statement noted above in paragraph [160] simply equates to a statement that Sri Lankan society (men and women) sustains a cultural environment in which victims of sexual abuse suffer both the abuse itself and for speaking about its occurrence. In relation to the second statement, Mr France notes that the same comment could be made about some New Zealand men.

[164] Mr France considers that neither of the critical statements denigrated Sri Lankans. In his view, they represented genuine reporting on matters of some interest to a New Zealand audience given the particular story and the debate surrounding it. The item did not comment on the legitimacy of the social attitudes which were said to exist in Sri Lanka. Mr France notes that there is a high threshold for finding that a broadcast breached the denigration guideline, which was not reached on this occasion. Additionally, the comments made in the item were specifically directed at the behaviour of some Sri Lankan men, and did not encourage denigration of Sri Lankans generally. Therefore he finds that the broadcaster did not breach Standard 6 (Guideline 6g).

Law and Order

[165] Dr Rajapakse argued that Standard 2 of the Television Code was breached by the broadcast, as he alleged that the item breached Sri Lankan laws concerning:

• filming without work visas
• secret filming and
• investigating a case which was already under criminal investigation.

[166] The Authority was not provided with any evidence that Sri Lankan laws were in fact broken during filming and the broadcaster did not accept that any laws had been broken during filming in Sri Lanka. In this circumstance the Authority is not prepared to find a breach of Standard 2.

[167] TVNZ also argued that Standard 2 did not require compliance with Sri Lankan law. The Authority is not required to make any finding on this point. However, it notes that if any laws were breached, this would not automatically mean that the broadcaster also breached Standard 2, even if the laws in question were New Zealand laws. Standard 2 requires that broadcasters maintain standards which are consistent with the maintenance of law and order and Guideline 2a requires broadcasters to respect the principles of law which sustain our society. This would require an assessment of the type of law which was alleged to have been broken and the context in which the breach was alleged to have occurred.

For the above reasons, a majority of the Authority upholds the complaints that the broadcast by Television New Zealand Ltd of an item on Sunday on 22 February 2004 breached Standards 4 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

It declines to uphold any other aspect of the complaints.

[168] Having upheld a complaint, the Authority may make orders under ss.13 and 16 of the Broadcasting Act. Having considered all the circumstances of the complaint and taking into account that the decision to uphold these complaints was not unanimous, the Authority concludes an order is not appropriate.

Signed for and on behalf of the Authority

Joanne Morris
Chair
8 November 2004

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

Complaint from Mr Sarath Bulathsinghala

1. Mr Sarath Bulathsinghala’s Complaint on behalf of 389 members of the Sri Lankan Community to Television New Zealand Ltd – 1 March 2004
2. TVNZ’s Response to the Formal Complaint – 16 March 2004
3. Mr Bulathsinghala’s Referral to the Broadcasting Standards Authority – 14 April 2004
4. TVNZ’s Response to the Authority – 5 May 2004
5. Mr Bulathsinghala’s Final Comment – 17 May 2004
6. The Authority’s letter to TVNZ seeking further information – 13 July 2004
7. TVNZ’s Response to the Authority – 15 July 2004

Complaint from Dr Upali Manukulasuriya

1. Dr Manukulasuriya’s Referral to the Broadcasting Standards Authority – received 15 April 2004
2. TVNZ’s Response to the Authority – 5 May 2004
3. Dr Manukulasuriya’s Final Comment – 12 May 2004
4. The Authority’s letter to TVNZ seeking further information – 13 July 2004
5. TVNZ’s Response to the Authority – 15 July 2004
6. Dr Manukulasuriya’s Reply – 25 July 2004

Complaint from Titus de Silva

1. Mr de Silva’s Complaint to Television New Zealand Ltd – 22 February 2004
2. TVNZ’s Response to the Formal Complaint – 16 March 2004
3. Mr de Silva’s Referral to the Broadcasting Standards Authority – 2 April 2004
4. TVNZ’s Response to the Authority – 26 April 2004
5. Mr de Silva’s Final Comment – 3 May 2004
6. The Authority’s letter to TVNZ seeking further information – 13 July 2004
7. TVNZ’s Response to the Authority – 15 July 2004

Complaint from Ariya Randeni and Balaweera Weerasinghe

1. Ariya Randeni and Balaweera Weerasinghe’s Complaint to Television New Zealand Ltd – 14 March 2004
2. TVNZ’s Response to the Formal Complaint – 29 March 2004
3. Dr Randeni and Mr Weerasinghe’s Referral to the Broadcasting Standards Authority – 24 April 2004
4. TVNZ’s Response to the Authority – 5 May 2004
5. Dr Randeni and Mr Weerasinghe’s Final Comment – 15 May 2004
6. TVNZ’s Response to the Final Comment – 24 May 2004
7. Dr Randeni and Mr Weerasinghe’s letter to the Authority – 7 June 2004
8. The Authority’s letter to TVNZ seeking further information – 13 July 2004
9. TVNZ’s Response to the Authority – 15 July 2004
10. Dr Randeni and Mr Weerasinghe’s Reply – 2 August 2004

Complaint from Dr Chula Rajapakse

1. Dr Rajapakse’s Complaint to Television New Zealand Ltd – 14 March 2004
2. TVNZ’s Response to the Formal Complaint – 29 March 2004
3. Dr Rajapakse’s Referral to the Broadcasting Standards Authority – 24 April 2004
4. TVNZ’s Response to the Authority – 5 May 2004
5. Dr Rajapakse’s Final Comment – 15 May 2004
6. The Authority’s letter to TVNZ seeking further information – 13 July 2004
7. TVNZ’s Response to the Authority – 15 July 2004
8. Dr Rajapakse’s Reply – 1 August 2004

¹Joanne Morris and Tapu Misa. The Chairperson exercised her casting vote in accordance with clause 2(6) of the First Schedule to the Broadcasting Act.