BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints
Shortland Street – character with bipolar disorder – portrayed as obsessive, delusional and violent – inaccurate – unfair – stereotyping

Findings
Standard G1/Standard 5 – fiction – not applicable

Standard G6/Standard 4 and Guideline 4a – fiction – not applicable

Standard G13/Standard 6 and Guideline 6g – no discrimination – dramatic work – no uphold

Standard G20/Standard 4 and Guideline 4b – fiction – not applicable

Standard G21/ Standard 5 and Guideline 5a – fiction – not applicable

This headnote does not form part of the decision.

Summary

[1] A storyline about a character with bipolar disorder ("Jack Hewitt") screened during episodes of Shortland Street broadcast on TV2 at 7.00pm on weeknights from 3 December to 14 December 2001 and on 21 January 2002. During these episodes, "Jack" attempted to kill "Chris Warner", kidnapped "Rachel McKenna" and then committed suicide.

[2] The Mental Health Foundation of New Zealand complained to Television New Zealand Ltd (the broadcaster) that the programme was inaccurate, unbalanced and discriminatory, as it played upon the stereotype that people with experience of mental illness were dangerous and unpredictable. The Bipolar/Manic Depression Society Inc. also complained to TVNZ about the "Jack Hewitt" storyline, which it considered was inaccurate, unfair, unbalanced and discriminated against people with mental illness.

[3] In its response to the complaints, TVNZ said the programme was fictional and maintained that the erratic behaviour of "Jack" was not inconsistent with the reality of a person with bipolar disorder who had failed to take medication. It declined to uphold the complaints.

[4] Dissatisfied with TVNZ’s decisions, the Foundation and the Society referred their complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaints.

Decision

[5] The members of the Authority have viewed videotapes of the episodes complained about and have read the correspondence which is listed in the Appendices. The Authority determines these complaints without a formal hearing.

The Programme

[6] A storyline about a character with bipolar disorder ("Jack Hewitt") was screened during Shortland Street broadcast on TV2 at 7.00pm on weeknights from 3 December to 14 December 2001 and on 21 January 2002. During these episodes, "Jack", who had stopped taking medication following the break-up of his relationship with "Rachel McKenna", attempted to kill "Chris Warner", kidnapped "Rachel" and committed suicide.

The Complaints

[7] On behalf of the Mental Health Foundation of New Zealand, Heidi Dragicevich, the Project Manager for the Project to Counter Stigma and Discrimination Associated with Mental Illness complained that the storyline was "very offensive" as it played upon the stereotype that people with experience of mental illness were dangerous and unpredictable. The Foundation contended:

One programme such as this can nullify much of the valuable work done by people throughout New Zealand on the Project to Counter Stigma and Discrimination Associated with Mental Illness.

[8] The Foundation argued that the broadcast breached the standards relating to accuracy, balance, and discrimination.

[9] Craig Thompson, the Education Coordinator for the Bipolar/Manic Depression Society Inc complained that the storyline did not portray people with bipolar disorder in a fair and balanced way. The Society wrote:

While people with bipolar disorder may, when they become unwell, lose their sense of judgment, it is uncommon for this to lead to them committing serious crime. In addition, suicide during mania is actually quite rare.

[10] The Society said it was concerned that:

this type of unbalanced portrayal will add to the stereotype that people with a mental illness are as a matter of course dangerous and violent. This type of stereotype may increase discrimination against people with a mental illness and add to the stigma that these people feel. Another concern is that people, especially young people, who suspect that they may have bipolar disorder may avoid seeking assessment and treatment so as not to be associated with an illness with such a negative stereotype.

[11] The Society maintained that the storyline breached standards relating to accuracy, balance, and discrimination.

The Standards

[12] Television New Zealand Ltd (the broadcaster) explained that it had assessed the complaints against Standard 6 and Guideline 6g of the Free-to-Air Television Code which came into effect on 1 January 2002. It advised that this was the only applicable standard which had been nominated by the complainants. Standard 6 and Guideline 6g provide:

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.

Guidelines

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:

i) factual, or

ii) the expression of genuinely held opinion in news, current affairs or other factual programmes, or

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

The Broadcaster’s Response to the Complainants

[13] TVNZ explained to the Foundation and the Society that:

["Jack Hewitt"] was introduced to the cast six months ago, and the audience learnt from the outset that this fictional person suffered from a bipolar disorder. He came into Shortland Street as a successful lawyer who became a love interest for "Rachel McKenna". His story covered several arcs, during which time his intelligence, devotion to family, bravery and sense of humour were demonstrated. Eventually, a rift in his relationship with "Rachel" caused "Jack" to stop taking his medication. Consequently, he attempted to murder "Chris Warner" and later kidnapped "Rachel". His story ended with him killing himself in the episode shown on 21^st January.

[14] In its response to both complainants, TVNZ wrote:

While the committee recognised the legitimacy of your concern that people with mental illnesses should not be unfairly stigmatised, it noted that in discussing Shortland Street it was dealing with a work of fiction, not a documentary or current affairs feature. In story-telling, it was sufficient that the writers establish that the erratic behaviour shown by "Jack" was not inconsistent with the reality of a person with bipolar disorder who had failed to take medication. The committee heard that, like all the plots in Shortland Street which involve medical matters, the producers checked with medical advisers to ensure that the behaviour depicted was not something that could not happen to a person with bipolar disorder. The Committee also heard that three of the writers had themselves had first-hand experience of bipolar disorder.

There is a substantial difference between a work of fiction and a reality programme which sets out to explore and explain any particular medical or mental condition. In the case of Shortland Street, which to a large part consists of stories about relationships, "Jack’s" transformation from a credible intelligent and loving person to one who was clearly very ill was presented in a sympathetic form – so that the audience if you like cried for "Jack" as much as it did for those who became his victims.

At no point did Shortland Street imply that the behaviour shown by "Jack" was common to people suffering from bipolar disease. The long running story line presented the tragedy of one man, and in the view of the committee, painted him as a victim of illness rather than as a villain.

[15] TVNZ concluded that Standard 6 and Guideline 6g had not been not breached by Shortland Street: especially as, in accordance with clause

(iii) the sequence was presented in the legitimate context of a dramatic… work.

[16] TVNZ added:

In the opinion of the Committee it could be argued that Standard 6 may not have been applicable because the programme was not dealing with a real person – only the figment of the imagination of a group of scriptwriters.

The Referrals to the Broadcasting Standards Authority

The Foundation’s Referral

[17] When it referred its complaint to the Authority, the Foundation commented:

Although Shortland Street is clearly not a documentary or current affairs programme, it has on the whole been notable for its care in avoiding stereotypical representations of racial and sexual issues and their potential to stigmatise particular sections of the community. This is very much to the programme’s credit. It also suggests an acceptance of a degree of social responsibility in the portrayal of difficult and contentious issues. When considering "the legitimate context of a dramatic, humorous and satirical work", I would argue that the use of the word "legitimate" acts as a signal that such social responsibility should be an important criterion in the context of a popular and influential drama.

[18] The Foundation asked how TVNZ’s "defence" would look when "transposed" to the situation of a young Maori male committing theft, and said:

It is easy to see that the above portrayal would feed a stereotype about young Maori males and perpetuate stigma and discrimination towards Maori people generally. Why is it harder to recognise the same dynamic in the context of mental illness?

[19] The Foundation then said it considered that TVNZ’s statement that the audience cried for "Jack" as much as for his victims was "patronising and disempowering". In the Foundation’s view, it encouraged:

both a sense of hopelessness and a voyeuristic response to it, maintaining a stigmatising attitude even whilst arousing apparently sympathetic feelings.

[20] The Foundation said that the "key reason" why it did not accept that the programmes were not discriminatory was:

the outcry from people particularly with bipolar disorder about these programmes and how they have felt personally discriminated against.

The Society’s Referral

[21] In the referral of its complaint to the Authority, the Society said it was concerned that:

[the programme’s] unbalanced portrayal [will] add to the stereotype that people with a mental illness are as a matter of course dangerous and violent. This type of stereotype may increase discrimination against people with mental illness and add to the stigma that these people feel.

[22] The Society also reiterated its concern that people, especially young people, would avoid seeking treatment for suspected bipolar disorder because they would not want to be associated with a disease with such a negative stereotype.

[23] The Society disagreed with TVNZ’s contention that "Jack’s" behaviour was "not inconsistent with the reality of bipolar disorder". It maintained that the commission of serious crime and suicide during mania was behaviour "so uncommon as to be inconsistent with the reality of bipolar disorder".

[24] The Society also commented on TVNZ’s statement the programme had not implied that "Jack’s" behaviour was common to those with bipolar disorder. It wrote:

The audience [had] nothing at all to indicate that the behaviour is not common to those with bipolar disorder.

The Broadcaster’s Responses to the Authority

[25] In TVNZ’s response to the Foundation’s referral, it said it considered that the reference made to the stereotyping of young Maori males was "specious". In addition TVNZ said:

It is neither true nor empowering to suggest that the way in which a drama programme portrays a particular character, with a particular condition, must conform to how experts within the field of that condition would like to see the illness, disability or condition portrayed. It seems ridiculous to suggest that all people who are invented to appear on Shortland Street, or on any other drama, with some sort of physical or mental challenges to their lives, or are seen to represent a minority, whether religious, cultural or sexual, must be portrayed as good, empathetic or "right" in order to avoid denigrating that entire sector of society.

[26] In response to the Society, TVNZ said:

The programme did not imply that [the] behaviour of the character was typical of a victim of this illness who was keeping up with his treatment, Indeed we made the point that when he was taking his medication, "Jack" was presented as a credible, intelligent and loving person.

The Society’s Further Correspondence

[27] In the Society’s final comment, it said:

acting in a violent way and committing serious crime is not consistent with how people with bipolar disorder usually act whether they are well or unwell, or have taken their medication or not.

[28] The Society continued:

We have no difficulty with TVNZ using bipolar disorder in story-telling, but only ask that they portray people with the disorder in a realistic, non-sensationalist way as to not further [stereotype] , and consequently [discriminate], against people with this serious illness.

TVNZ’s Response to the Society’s Further Correspondence

[29] In response to the Society’s further correspondence, TVNZ wrote:

With respect to the Society the programme at no time suggested or implied this was usual behaviour for a person with bipolar disorder. We are dealing here with a work of fiction.

The Authority’s Determination

[30] The Authority begins by noting that TVNZ advised both the Foundation and the Society that their complaints would be assessed under the revised Code of Broadcasting Practice for Free-to Air Television. This Code was approved by the Authority on 13 August 2001, to be effective from 1 January 2002. TVNZ has interpreted this to mean that complaints assessed after 1 January are to be assessed under the revised Code. It is the Authority’s understanding, shared with other free-to-air television broadcasters, that the revised Code applies to programmes screened after 1 January.

[31] The Authority is of the opinion that these complaints should be assessed under the provisions of the former Code in relation to the episodes complained about which were broadcast before 1 January 2002, and under the new Code in relation to the 21 January 2002 episode. Accordingly, taking the issues raised by the complainants into account, the Authority assesses the complaints about the episodes broadcast before 1 January 2002 under standards G1, G6, G13, G20 and G21 of the Television Code of Broadcasting Practice which applied at the time of those broadcasts.

[32] Standards G1, G6, and G13 require broadcasters, in the preparation and presentation of programmes:

G1  To be truthful and accurate on points of fact.

G6  To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

G13  To avoid portraying people in a way which represents as inherently inferior, or is likely to encourage discrimination against, any section of the community on account of sex, race, age, disability, occupational status, sexual orientation or the holding of any religious, cultural or political belief. This requirement is not intended to prevent the broadcast of material which is:

i) factual, or

ii) the expression of genuinely-held opinion in a news or current affairs programme, or

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

[33] The remaining standards read:

G20  No set formula can be advanced for the allocation of time to interested parties on controversial public issues. Broadcasters should aim to present all sides in as fair a way as possible, and this can be done only by judging every case on its merits.

G21  Significant errors of fact should be corrected at the earliest opportunity.

[34] As to the 21 January programme, the Authority assesses the complaints about this episode under standards 4, 5 and 6 of the new Code of Broadcasting Practice for Free-to-Air Television. Those standards, and the relevant guidelines to those standards read:

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.

Guidelines

4a  Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.

4b  No set formula can be advanced for the allocation of time to interested parties on controversial public issues. Broadcasters should aim to present all significant sides in as fair a way as possible, it being acknowledged that this can be done only by judging each case on its merits.

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.

Guidelines

5a  Significant errors of fact should be corrected at the earliest opportunity.

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:

i) factual, or

ii) the expression of genuinely held opinion in news, current affairs or other factual programmes, or

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

[35] TVNZ assessed both complaints under Standard 6 and Guideline 6g of the Free-to-Air Code of Broadcasting Practice. In effect, it argued that standards of broadcasting practice relating to accuracy and balance do not apply to a work of fiction.

[36] The Authority considers that, as Shortland Street is a fictional programme which does not deal with real persons or events, standards relating to factual accuracy, and standards requiring balance, fairness and impartiality are not relevant standards for the Authority to consider on this occasion.

[37] As to standard G13, and its equivalent standard in the new Television Code (Standard 6 and Guideline 6g), the Authority has stated on a number of previous occasions that the threshold required to establish denigration or discrimination is high. The Authority considers that the encouraging of stereotyping does not meet this high threshold. Furthermore, the standard is subject to an exception in the legitimate context of a dramatic work. The Authority declines to uphold the complaints that standard G13, and Standard 6 and Guideline 6g, were breached.

[38] The Authority observes that to find a breach of broadcasting standards on this occasion would be to interpret the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

For the reasons above, the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
13 June 2002

Appendix 1

The following correspondence was received and considered by the Authority when it determined the Foundation’s complaint.

1. The Mental Health Foundation’s Complaint to Television New Zealand Ltd – 22 January 2002
2. TVNZ’s Response to the Complainant – 11 February 2002
3. The Foundation’s Referral to the Broadcasting Standards Authority – 18 February 2002
4. TVNZ’s Response to the Authority – 4 March 2002

Appendix II

The following correspondence was received and considered by the Authority when it determined the Foundation’s complaint.

1. The Bipolar/Manic Depression Society Inc.’s Complaint to Television New Zealand Ltd –
   7 February 2002
2. TVNZ’s Response to the Complainant – 15 February 2002
3. The Society’s Referral to the Broadcasting Standards Authority – 7 March 2002
4. TVNZ’s Response to the Authority – 22 March 2002
5. The Society’s Further Correspondence – 3 April 2002
6. TVNZ’s Response to the Society’s Further Correspondence – 10 April 2002