BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1B)(b)(i) of the Broadcasting Act 1989
Te Kāea – item reported on Anglican Church deacon who was allegedly stood down after making a complaint about a man he alleged was the subject of a sexual abuse inquiry – allegedly in breach of controversial issues, accuracy and fairness standards

Findings
Standard 6 (fairness) – broadcaster did not have a sufficient foundation for broadcasting serious allegations – broadcaster did not appear to take any steps to corroborate essential facts of the broadcast – unfair to omit other reasons for the deacon’s suspension – given the seriousness of the allegations, the church was not provided with a fair and reasonable opportunity to comment – item was unfair to the church and the Bishop – upheld

Standard 5 (accuracy) – it is not the Authority’s role to make a finding on the merits of the alleged sexual abuse and whether this was accurately portrayed in the item – presentation of church’s view would have countered any impression created – item omitted contextual information about the reasons for the deacon’s suspension, which was misleading – broadcaster did not make reasonable efforts to ensure the item did not mislead – upheld

Standard 4 (controversial issues) – item did not discuss a controversial issue of public importance – not upheld

No Order

This headnote does not form part of the decision.

Introduction

[1]  An item on Te Kāea, broadcast on Māori Television at 5.30pm on 13 April 2012, reported that “An Anglican Church deacon has been stood down after making a complaint to the church about his concerns for the safety of children at the church.” The reporter explained (in Māori, with English subtitles):

At the weekend, the deacon attended a youth camp where he identified a man who he alleges has been the subject of a sexual abuse inquiry. He left the camp and took the children under his care with him. He complained to a Bishop in the church, but rather than gather support, he says the Bishop stripped him of his title and duties.

[2]  Lloyd Ashton, the Media Officer for the Anglican Church, and Reverend John Payne, made formal complaints to Māori Television Service, the broadcaster. Mr Payne alleged that the item was unfair to the Bishop, the church and the families involved. Mr Ashton argued that the “apparent failure to investigate adequately and to find out the ‘back story’ that led to the [deacon’s] suspension” resulted in a report that was “misleading” and “unbalanced”.

[3]  Māori TV considered the complaints under Standards 4 (controversial issues), 5 (accuracy), and 6 (fairness) of the Free-to-Air Television Code of Broadcasting Practice. Our role is to review the broadcaster’s decision, and we have therefore considered the complaint under these standards, with particular focus on fairness, which, in our view, is the most relevant to the complaints.

[4]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the item and freedom of expression

[5]  The right to freedom of expression is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. We acknowledge the importance of the values underlying that right. In determining an alleged breach of broadcasting standards, we assess the importance of the particular speech and the extent to which the values of freedom of expression are engaged, and weigh this against the level of harm in terms of the underlying objectives of the relevant broadcasting standards.

[6]  The Te Kāea item reported serious allegations against the Anglican Church and a particular Bishop, who was referred to, but not named, in the broadcast. Specifically, it was reported that the church suspended a deacon after he “complained to the Bishop” about a man he believed was the subject of a sexual abuse inquiry. The implication was a “cover up” of alleged sexual offending by a church member in a manner that placed the safety of children at risk. Superficially at least, the disclosure of the circumstances leading to the complaint and the actions of the church was in the public interest, which the courts have suggested is an indicator that speech is socially important.¹

[7]  We approach the complaint cautiously as we may only limit the right to freedom of expression to an extent that is reasonable and with proper justification.

Was any person or organisation referred to in the item treated unfairly?

[8]  Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[9]  One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.²

[10]  Here, it is alleged that the item was unfair to the Anglican Church, the Bishop and the families of the alleged sexual offender and victim. The essence of the fairness complaint is that the item misrepresented the nature of the alleged sexual offending and the reasons the deacon was stood down, so as to suggest a “cover up” on the part of the church and to cast the Bishop and the church in a negative light. Mr Payne argued that the item presented an unbalanced and misleading version of events which was “slanderous to the mana and integrity of the Bishop, his family and the church”. Mr Ashton contended that the alleged sexual offending related to a “single, minor incident” that took place between two teenagers 16 years earlier, and which had been resolved.

[11]  Māori TV argued that no one was named or otherwise identified in the item so it could not have been unfair. In addition, it said that the item was a report of the deacon’s opinion, and as such was saved by guideline 6d, which requires broadcasters to respect the rights of individuals to express their own opinions.

[12]  At the outset, we dismiss the argument that, because (allegedly) no one was identified in the item, it could not have been unfair. Standard 6 does not require identification; it simply requires that broadcasters deal fairly with any person or organisation “taking part” or “referred to”. The item referred to the “Anglican Church” and an unnamed Bishop, in relation to events at a youth camp at Easter weekend. We comment, in passing – as it is unnecessary to make a finding on this point – that the information disclosed in the broadcast did go some way to identifying the church and the Bishop, at least to members of the church who were otherwise unaware of the allegations being made by the deacon.

[13]  We have addressed the fairness complaint in three parts, as follows:

• Given the nature of the allegations made in the item, did the broadcaster have sufficient foundation to broadcast the material?
• Did the item create an unfair impression about the reasons for the deacon’s suspension?
• Was the church provided with an adequate opportunity to comment on the allegations, and to put forward its perspective?

Given the nature of the allegations, did the broadcaster have sufficient foundation to broadcast the material?

[14]  The item that was broadcast was to the effect that the deacon, who had a responsible position in the church dealing with youth, had identified a sexual predator at a youth camp. The deacon took the children who were in his care away from the camp. The bite of the item was that the Bishop then suspended the deacon, perhaps to protect the alleged sexual predator. By any standards, these were serious allegations and we think that the broadcaster had to do more than merely categorise these as statements of opinion. It is not our place to enquire into the events of 16 years ago and we do not do so. A broadcaster who wishes to broadcast this sort of material on the news should ordinarily obtain some corroboration of the essential facts or give any person who might be adversely affected by the broadcast of this material, a fair opportunity to respond, or both. What is a fair opportunity to respond will depend on the nature of the allegations and how quickly a response can be reasonably expected. The more serious the allegation, the greater the time that should be allowed for a response.

[15]  Here, the broadcaster did not appear to take any steps to corroborate the deacon’s claims or the essential facts of the broadcast relating to the incident 16 years earlier, and as discussed in more detail below, it omitted key information about the reasons for the deacon’s suspension. What the broadcaster did do was endeavour to give the church, through the Bishop and Mr Ashton, an opportunity to respond, but we do not consider that this was done adequately.

Did the item create an unfair impression about the reasons for the deacon’s suspension?

[16]  Mr Payne argued that the item created an unfair impression about the reasons for the deacon’s suspension, and Mr Ashton said it failed to reflect the fact he was “already skating on very thin ice before the Easter camp”. The deacon’s behaviour at the camp was “simply the straw that broke the camel’s back”, he said. Mr Ashton argued that it was incorrect to say that the deacon complained to a Bishop in the church. In the words of Mr Ashton, “the deacon did not talk to [the Bishop] before he saw fit to haul the children out of the camp in the middle of the night”.

[17]  Māori TV provided the Authority with a copy of the deacon’s Notice of Suspension (the Notice), issued on 10 April, one day after the events at the Easter weekend camp. It noted Mr Ashton’s statement in his original complaint, “The facts are these: the deacon was stood down for bleating to the media about a false allegation,” and said that this contradicted the contents of the Notice. The broadcaster accepted that the deacon did not complain directly to the Bishop.

[18]  In our opinion, the item did create an unfair impression that the deacon was suspended solely for complaining about his concerns for the safety of children, and that the suspension related to his role as deacon. The reporter stated, “He complained to a Bishop in the church, but rather than gather support, he says the Bishop stripped him of his title and duties.” These words convey the meaning that the deacon had suffered a punitive reaction as a consequence of his complaint.

[19]  It is clear from the contents of the Notice, and from Mr Ashton’s original complaint, that the deacon’s behaviour in removing the children from the camp and talking to the media were factors that contributed to his suspension. However, the Notice listed two other reasons that were unrelated to the events at the Easter camp, and clearly stated that the deacon was suspended from his duties in his role as a National Youth Co-ordinator; he was not “stripped of his title”, as alleged. While the Notice was issued three days before the Te Kāea broadcast, the item nevertheless included comment from the deacon that, “They have not yet specified why they took the title away from me.” In fact, the Notice clearly outlined the reasons for his suspension, and Māori TV was in possession of that Notice.

[20]  The omission of information about the additional reasons for the deacon’s suspension, and the incorrect assertion the deacon complained to the Bishop, contributed to the unfairly negative impression of a “cover up” on the part of the church and the Bishop. At the end of the item, the reporter said, “Te Kāea contacted the Anglican Church for comment, but the Communications Manager had referred us to the Bishop in question, even though we explained he was one of the subjects in the complaint” [our emphasis]. The concluding statement suggested that the Bishop, in suspending the deacon, had acted unprofessionally and/or unethically, and that therefore it was inappropriate to obtain comment from him.

Was the church provided with an adequate opportunity to comment on the allegations, and to put forward its perspective?

[21]  Māori TV first contacted the church on the same day as the broadcast, when a reporter telephoned the Bishop less than three hours before the item went to air. The Bishop did not take the call as he was chairing an important hui, and he explained this to the reporter via text message. The broadcaster maintained that the reporter’s last text message indicated that she was “on standby to speak to the Bishop at his earliest convenience”.

[22]  Between 3.30pm and 4pm that day, the Te Kāea producer telephoned Mr Ashton as Media Officer for the church. He conceded that because he did not know the background to the matter, “I told her no such comment would be forthcoming, and urged her to speak to the Bishop in question”. In its response to the Authority, Māori TV stated, “Whilst we accept that it may have taken hours to ascertain the long history of events, it would not have been difficult [for Mr Ashton], as the Church’s Media Officer to make a few calls and provide a brief statement in relation to the story.” Overall, it considered that sufficient care was taken to obtain comment from the church, through the Bishop, so as to present a balanced story.

[23]  The Authority has previously stated that in the application of the rules of fairness it is usually the case that somebody about whom something adverse is to be said should be given an opportunity to comment.³ The gravity of the unfairness if this opportunity is not given will vary according to the particular circumstances of the case.

[24]  Given the allegations being made were serious, and the extent of the potential harm to the reputations of the church and the Bishop, was significant, we have reached the view that the opportunities given to the church and the Bishop to provide comment for the item were not fair or reasonable. In reaching this view we have considered the relatively short period of time in which they were expected to respond, the fact that the Bishop was preoccupied with the hui, the nature of the allegations, and the actions taken by the broadcaster to obtain a response. In all the circumstances, and also taking into account that this was not a “breaking news” story, we consider that Māori TV should have refrained from broadcasting the item until it was able to obtain comment from the church or was in a position to present balancing commentary.

Conclusion on fairness

[25]  While we have not commented on the events of 16 years ago, and we make no findings in that respect, the item did, in our view, create the impression of a “cover-up” on the part of the church and the Bishop. It suggested the deacon was suspended for expressing his concerns about the safety of the children, while the church was willing to accommodate, and even protect, an alleged sexual offender. These were serious allegations, and broadcasting them in the absence of any corroboration of the essential facts, or any information or comment to counter them, was unfair and resulted in an unfairly negative representation of the church and the Bishop. Māori TV has not provided any evidence to support the allegations and simply says the broadcast was based on the opinion of the deacon. In our view, this amounted to a serious failure on the part of the broadcaster to check the facts. The harm caused in this instance, in terms of the objectives of the fairness standard, outweighed the broadcaster’s right to freedom of expression. We therefore uphold the complaint that the broadcast breached Standard 6.

Was the item inaccurate or misleading?

[26]  Standard 5 (accuracy) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.⁴

[27]  Mr Ashton argued that the item misrepresented the nature of the alleged sexual offending, as well as the reasons for the deacon’s suspension.

[28]  As noted earlier, we are not in a position to make any finding as to the nature of the alleged abuse, or whether this was accurately portrayed in the item. However, any impression created could have been mitigated by the inclusion of the church’s perspective on the allegations, so that viewers would have been left to form their own views, and would not have been misled. This part of the complaint has been adequately addressed under fairness.

[29]  We are satisfied, for the reasons outlined in our consideration of fairness (see [16] to [20]), that the item created a misleading impression that the deacon had been stood down solely for making a complaint to the Bishop about the safety of the children at the church. In our view, the broadcaster did not make reasonable efforts to ensure that the item did not mislead because it went ahead with the broadcast without obtaining any balancing comment from the church, and it was in possession of the Notice but failed to make it clear there were additional reasons for the deacon’s suspension.

[30]  Accordingly, we uphold Mr Ashton’s Standard 5 complaint.

Did the item discuss a controversial issue of public importance requiring the presentation of significant viewpoints?

[31]  Standard 4 states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

[32]  The focus of the item was the deacon’s complaint and his subsequent suspension. It did not examine wider issues such as sexual abuse or the responsibilities of organisations that discover a member is a sexual offender. We therefore find that the item did not discuss a controversial issue of public importance as envisaged by Standard 4, and we decline to uphold this part of Mr Ashton’s complaint.

For the above reasons the Authority upholds the complaints that the broadcast by Māori Television Service of Te Kāea on 13 April 2012 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[33]  Having upheld the complaints, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

[34]  We have been advised that the parties have agreed to engage in discussions to decide on some form of redress acceptable to both. In these circumstances, we consider that publication of our decision is sufficient and no order is warranted.

Signed for and on behalf of the Authority

Peter Radich
Chair
31 January 2013

Appendix

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

Lloyd Ashton’s complaint

1           Lloyd Ashton’s formal letters of complaint – 2 May 2012

2          Māori TV’s response to the complaint – 8 May 2012

3          Mr Ashton’s additional comments on the complaint – 18 May

4          Mr Ashton’s referral to the Authority – 31 May 2012

5          Māori TV’s response to the Authority (including Deacon’s affidavit, Notice of Suspension, and
            transcript of the item) – 28 June 2012

6          Mr Ashton’s final comment – 16 July 2012

7          Māori TV’s final comment – 18 July 2012

8          Mr Ashton’s submissions on orders – 26, 27 and 30 November 2012

9          Māori TV’s submissions in response – 30 November 2012

John Payne’s complaint

1           John Payne’s formal complaint – 16 April 2012

2          Māori TV’s response to the complaint – 5 May 2012

3          Mr Payne’s referral to the Authority – 25 May 2012

4          Māori TV’s response to the Authority – 29 June 2012

5          Mr Payne’s final comment – 13 July 2012

6          Mr Payne’s submissions on orders – 27 and 30 November 2012

¹See, for example, Tipping J in Hosking v Runting PDF [2003] 3 NZLR 385 (CA).

²Commerce Commission and TVWorks Ltd, Decision No. 2008-014

³See, for example, HC and CT and Television New Zealand Ltd, Decision No. 2010-163

⁴Bush and Television New Zealand Ltd, Decision No. 2010-036