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Two Complainants and Television New Zealand Ltd - 2018-074 (26 February 2019)

Members

  • Judge Bill Hastings (Chair)
  • Paula Rose
  • Wendy Palmer
  • Susie Staley

Complainant

  • Two Complainants

Dated

26th February 2019

Number

2018-074

Programme

Sunday

Channel/Station

TVNZ 1

Broadcaster

Television New Zealand Ltd

Summary

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

The Authority has not upheld complaints from two complainants, a Christian organisation and its director, about an episode of Sunday which investigated gay conversion therapy and whether this practice was happening in New Zealand. The director, ‘X’, was filmed covertly during the programme, appearing to offer gay conversion therapy to an undercover reporter, ‘Jay’, who posed as a young Christian ‘struggling with same sex attraction’. The Authority found that the broadcaster’s use of a hidden camera in this case represented a highly offensive intrusion upon X’s interest in seclusion and that, on its face, this broadcast breached their privacy. However, the Authority found that the high level of public interest, both in the programme as a whole and in the hidden camera footage, justified the broadcaster’s use of a hidden camera. Further, the broadcaster complied with its obligations under the fairness standard, providing the complainants with sufficient information about the nature of the broadcast and X’s participation, and a fair and reasonable opportunity to comment in response to the issues raised by the programme. Finally, the Authority found that the broadcast accurately and fairly portrayed the nature of the conversation between X and Jay, and the support and services being offered to him.

Not Upheld: Privacy, Fairness, Accuracy  


Introduction

[1]  On 17 June 2018, TVNZ’s Sunday programme investigated gay conversion therapy and whether this practice was happening in New Zealand. Three individuals, including the director of a Christian organisation, were filmed covertly during the programme, appearing to offer gay conversion therapy to an undercover reporter, ‘Jay’, who posed as a young Christian ‘struggling with same sex attraction’. We summarise the programme in more detail below at paragraph [7].

[2]  The Christian organisation and its director complained to the broadcaster, TVNZ, about this episode of Sunday. The complainants alleged the covert recording resulted in a breach of the director’s privacy and the complainants were not provided with sufficient information about the broadcast or a reasonable opportunity to comment, which was unfair. Further, they submitted that they did not offer gay conversion therapy and the work of the organisation was therefore misrepresented during the broadcast. TVNZ did not uphold the complaints and the complainants referred the matter to us for investigation and review.

[3]  The issues raised in the complaints are whether the broadcast breached the privacy, fairness and accuracy standards of the Free-to-Air Television Code of Broadcasting Practice.

[4]  For reasons we will expand upon in our decision, we have granted name suppression to the Christian organisation and its director, who is referred to as ‘X’ throughout.

[5]  This episode of Sunday was broadcast on 17 June 2018 on TVNZ 1 at 7.30pm.

[6]  As part of our consideration of this complaint, we have viewed a recording of the broadcast and have read the correspondence listed in the Appendix. We have also reviewed the full transcript of the conversation that took place between X and Jay, as well as transcripts of phone conversations and email correspondence between the broadcaster and the complainants prior to broadcast. These documents have also been provided to the complainants for their information and for comment.

The broadcast

[7]  Sunday is a current affairs programme broadcast by TVNZ. Reporter, Matt Chisholm, introduced this Sunday item as follows:

Conversion therapy. Spiritual healing. Praying the gay away. This is undercover footage of therapy that has many different names. No matter what you call it, the end goal is always the same – to change or suppress someone’s homosexuality.

[8]  Mr Chisholm interviewed three men about their experiences with gay conversion therapy, as well as a clinical psychologist who explained that the New Zealand Psychologists Board considers the practice to be unethical. The clinical psychologist also explained that attempting to ‘change’ a person’s sexual orientation could lead to depression, anxiety and even suicide. Mr Chisholm explained that the practice was illegal in some parts of Australia, Canada and the United States, but was not illegal in New Zealand.

[9]  Mr Chisholm explained:

We wanted to know how widespread gay conversion therapy is in New Zealand. It wasn’t hard to find websites promoting the practice. So, ‘Jay’ went undercover as a young Christian, struggling with same sex attraction… It was surprisingly easy to find people willing to help.

[10]  Hidden camera footage of Jay’s conversations with three individuals was then shown.

[11]  ‘X’ was covertly filmed from the street sitting outside a café with Jay. Jay asked X, ‘Do you think it’s possible to go from having gay feelings to just being straight?’ X answered:

Yes, that’s been the experience of lots of people. Yes, absolutely. Do we force it? No.

[12]  Mr Chisholm explained that the organisation’s focus was celibacy, promoted through an international support group. X was shown explaining the support group and its 12-step programme to Jay, saying that participants ‘have relationships with other guys, but not sexual relationships’.

[13]  The final segment of the programme showed Mr Chisholm phoning the three individuals, including X, and seeking their views on gay conversion therapy and whether it was harmful. X explained that they did not wish to talk about the topic on air, and disagreed that what they were doing amounted to intervention, saying, ‘I am not pushing intervention on anybody’.

[14]  The Sunday host concluded the programme by saying:

Well, all of the people we filmed say they don’t offer or practice gay conversion therapy. They say they’re there to help those who come looking for it. We also spoke to [the Principal of a religious counselling service] who said he successfully converted around 100 people, but he was too busy to talk to us on camera.


Freedom of expression

[15]  When we make a decision on a complaint that broadcasting standards have been breached, we first consider the right to freedom of expression. This includes both the right of the broadcaster to impart ideas and information, and of audiences to receive that information. Our task is to weigh the value of the programme (and the importance of the expression) against the level of actual or potential harm that might be caused, either to an individual or organisation, or to audiences generally.

[16]  In this case, we recognise the high value and legitimate public interest in investigative journalism pieces, such as this Sunday item. The programme highlighted an issue that might not have otherwise been known to the wider New Zealand public, reporting on an allegedly misleading practice which has been recognised to cause significant harm to vulnerable people. This item contributed to the ongoing public debate about the ethics of gay conversion therapy and whether it should be made illegal, and we expand further on the value of this item in our discussion of the public interest below, from paragraph [43].

[17]  Looking specifically at the hidden camera footage that was broadcast during the programme, the broadcaster has argued that this provided audiences with an unvarnished view of the advice being offered to Jay. This information was not publicly available and could not have been obtained by the broadcaster in any other way.

[18]  However, the complainants have submitted that this broadcast, and particularly the broadcast of hidden camera footage, caused significant harm, both to X as an individual and to the organisation as a whole. The complainants consider that they do not offer gay conversion therapy and they were therefore misrepresented in the broadcast. They argue that this was inaccurate and unfair.

[19]  Further, the complainants allege that the covert filming of X, and the process undertaken by TVNZ to seek the complainants’ comments on that footage, was unfair and breached X’s privacy. The complainants did not consider they were given an adequate opportunity to respond to the issues raised by the programme and were not fully informed about the nature of X’s participation.

[20]  We must therefore balance this alleged harm against the value of the programme, in terms of the right to freedom of expression, and the level of public interest, both in the programme as a whole and in the hidden camera footage that was captured.

[21]  We found this to be a challenging complaint, which highlighted for us the fine balance that must be struck between important investigative reporting and the protection of individual rights. As noted in a previous majority decision of the Authority:1

[Such broadcasts] raise difficult and challenging questions about where the balance lies between the freedom of journalists to investigate, publish and broadcast on the one hand; and on the other, the right of individuals to be protected from the harm that may arise from such publications and broadcasts.
The starting point must be that responsible journalists must be allowed to do their work of investigating issues in society… Inevitably, in some places, this may cause harm to individuals. This is the price that has to be paid in our society to ensure that issues of social injustice [and] inequality… are not kept covered… In our opinion, the public interests of our society require us to be very careful about limiting what journalists, broadcasters and publishers can do in these situations.

[22]  On this occasion, we have found that the public interest and value of the broadcast outweighed the harm alleged to have been caused to the complainants, and we have not upheld the complaints. We expand on our reasons for this finding in relation to each standard raised below.

Privacy

The standard and applicable guidelines

[23]  The privacy standard (Standard 10) requires broadcasters to maintain standards consistent with the privacy of the individual. The standard aims to protect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. It seeks to protect their dignity, autonomy, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.

[24]  When we make a decision on a complaint about hidden camera footage, we generally consider guideline 10e to the privacy standard. This guideline states that:

Broadcasters should not intentionally intrude upon a person’s reasonable expectation of solitude or seclusion in a way that is highly offensive to an objective reasonable person in the position of the person affected.

[25]  ‘Solitude’ is defined as the state of being alone and ‘seclusion’ is defined as a state of screening or shutting off from outside access or public view.2 A person does not need to be alone to have an interest in seclusion.3

[26]  In deciding whether the privacy standard has been breached in this case, we have considered the following three criteria:

  • whether the individual(s) whose privacy has allegedly been interfered with was identifiable;
  • whether the broadcaster intentionally intruded upon the individual(s) reasonable expectation of solitude or seclusion;
  • whether the intrusion could be considered highly offensive to an objective reasonable person.4

[27]  Guidance to the privacy standard states that the use of a hidden camera will generally be regarded as intrusive, but each case will depend on its particular circumstances. The purpose of covert filming will be relevant, as a purpose which is strongly in the public interest may justify the use of a hidden camera.5

[28]  The final question for us to consider is whether any defence is available to the broadcaster.

The complaint

[29] Under the privacy standard, the complainants submitted:

  • The covert recording of X was deceptive, intrusive and resulted in an invasion of X’s privacy.
  • The complainants did not agree that there was no other way for TVNZ to obtain an accurate representation of the details of the support group and the 12-step programme being offered to Jay, without resorting to hidden camera footage. It would have been possible for the broadcaster to contact X or the organisation for a detailed description of the support group, before resorting to covert recording.
  • The reluctance by X to appear on camera for a follow-up interview was due to the aggressive and unsolicited nature of the phone calls made by the reporter, not through a lack of openness about the support group or the 12-step programme being offered.
  • The public interest in this case did not outweigh X’s right to privacy. The complainants agreed that any practice that leads to mental illness, depression and suicide was a matter of public interest. However, the programme offered by the organisation is not gay conversion therapy and so the public interest in this case did not justify the use of a hidden camera.

The broadcaster’s response

[30]  In response, TVNZ submitted:

  • No private facts or material about X were disclosed during the broadcast and X did not have a reasonable expectation of solitude or seclusion, as they were filmed in a public place.
  • Even if X did have a reasonable expectation of seclusion, there was no other way for TVNZ to obtain an accurate representation of the programme discussed.
  • The Sunday team went through a covert approval process to decide whether covert filming was appropriate. It was determined that TVNZ would be unable to obtain accurate information about what was being offered by any other means.
  • This episode of Sunday was in the public interest and directly impacted public discourse on the legality of gay conversion therapy programmes. Since the broadcast, a Member’s Bill has been lodged to prohibit the practice of gay conversion therapy, with the media release for the Bill referring to the Sunday item.6 The footage played a crucial role in this development, as there was public interest in people seeing first-hand the damaging claims being made.

[31]  TVNZ also provided examples of media coverage of the issue as evidence for the impact this episode of Sunday has had, as well as official statements from reputable sources as to the harm that can be caused by gay conversion therapy.7

Was X identifiable in the broadcast?

[32]  The test under the privacy standard is whether the individual was identifiable, beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.

[33]  It is clear that X was identifiable in this broadcast. They were named and shown on camera, and the organisation they represented, along with their location, was disclosed.

Did the broadcaster intrude upon X’s expectation of solitude or seclusion?

[34]  Generally, a person will not have a reasonable expectation of privacy, or solitude or seclusion, in a public place because they are accessible, and/or in view of, the public.8 X was filmed sitting at a table outside a café, with members of the public sitting nearby.

[35]  While X was filmed in a public place, we consider that their conversation with Jay had the hallmarks of a one-on-one, private conversation. As we were able to see from the full transcript of this conversation, X discussed highly sensitive information with Jay, including about their personal religious journey and their relationships and family. They did so because they believed that Jay was confiding in them about his sexuality and his conflicting religious views. For this reason, X shared their own religious beliefs and views on sexuality with Jay, which they might not otherwise openly share. X was therefore offering advice and religious support to Jay with the expectation that this conversation would be kept, for the most part, confidential.

[36]  We accept that X may have been observed or partially overheard by other patrons or members of the public, or Jay may have shared some of the information divulged with others. However, we consider that X could not have reasonably expected (at the time of speaking with Jay) that their conversation, in its entirety, would be filmed or recorded and broadcast in the context of a nationwide current affairs programme.

[37]  We therefore found that filming X with a hidden camera, in the context of a one-on-one discussion about sensitive personal and religious beliefs, interfered with their interest in seclusion.

Was the intrusion highly offensive?

[38]  Where we have found the broadcaster intentionally intruded upon an individual’s reasonable expectation of solitude or seclusion, the next question for us to consider is whether this intrusion could be considered highly offensive to an objective reasonable person in the position of the person affected.

[39]  The means of the intrusion is relevant to whether it could be considered highly offensive. In this case, TVNZ employed deceptive means in order to gather footage of X, through a reporter posing undercover. X agreed to meet with Jay, and shared with him their personal views and religious beliefs, under the impression that he was a young Christian man who was seeking help. TVNZ therefore obtained the hidden camera footage through misrepresentation, which in our view would be considered highly offensive to an objective reasonable person in X’s shoes.

[40]  It appears that the broadcaster also did not attempt to speak to X or to seek their views prior to using a hidden camera. TVNZ has submitted that this was because it would be unable to obtain accurate information about the support offered to Jay by any other means (which we discuss further below). It also meant, however, that X was unable to modify their language or behaviour in the knowledge that this footage would be broadcast nationwide.

[41]  The subject matter and angle of the story also goes to the question of whether the intrusion was highly offensive. This footage of X was used in the context of a programme suggesting that they were offering gay conversion therapy which was harmful, and there may be an argument to make it illegal in New Zealand.

[42]  In these circumstances, we consider that the use of a hidden camera amounted to a highly offensive intrusion on X’s reasonable expectation of seclusion.

Defences

[43]  Having found that this programme was in breach of the privacy standard, we then looked at whether there were any defences available to the broadcaster.

[44]  Guideline 10f to the privacy standard states that it is a defence to a privacy complaint to publicly disclose matters of legitimate public interest. As we have said above, the purpose of covert filming will be relevant, as a purpose which is strongly in the public interest may justify the use of a hidden camera.9

[45] The public interest must relate to the disclosure of the particular information or recording that is alleged to breach privacy, however the public interest in the programme as a whole will also be considered.10

[46]  A matter of legitimate public interest is a matter of concern to, or having the potential to affect, a significant section of the New Zealand population. It is more than something that merely interests the public.11 Matters of ‘legitimate public interest’ may include, for example:12

  • issues of public health or safety
  • exposing misleading claims made by individuals or organisations
  • exposing seriously antisocial or harmful conduct.

[47]  The Authority has previously found that, where there is a privacy breach, a high degree of public interest would be necessary to justify the broadcast of covert footage.13

[48]  In this case, we have found that the high level of public interest in the item as a whole and in the advice being provided to Jay justified the broadcaster’s use of a hidden camera.

[49]  In making this decision, we have considered whether it was necessary for X to be covertly filmed, in breach of their privacy, in order to serve the public interest. We have asked ourselves what was revealed by the hidden camera footage that was in the public interest and which was not already available to the broadcaster or otherwise obtainable.

[50]  The overall focus of this programme, and the purpose of the recording, was summarised by the reporter during the broadcast. Mr Chisholm said Sunday wanted to know ‘how widespread gay conversion therapy is in New Zealand’ (see above at paragraph [9]).

[51]  In order to report on the prevalence of ‘gay conversion therapy’ in New Zealand, we consider it was necessary for TVNZ to first determine whether this practice was actually occurring, by interviewing those who alleged they had been the subject of such therapy, and, if possible, those practising it.

[52]  The information publicly available to TVNZ (through the websites for the Christian organisation involved, the support group and the 12-step programme referred to), do not provide specific detail about the kind of advice that might be shared when members are approached by someone in Jay’s position. Based on this information alone, it may have been difficult for TVNZ to determine whether the services offered by the organisation amounted to an attempt to change or suppress a person’s homosexuality.

[53]  The complainants have argued that TVNZ should have approached the organisation first, before resorting to a hidden camera. They have also submitted that X’s refusal to discuss the topic with Mr Chisholm over the phone, prior to broadcast, did not reflect an unwillingness on their part. It is clear from the full transcript of these conversations, however, that X would not have been open to discussing the matter in detail with Mr Chisholm, instead referring him to the website for the international support group offered by the organisation and finally terminating the call.

[54]  The hidden camera footage therefore provided audiences with an unvarnished view of X’s advice to Jay, that a sexual relationship between two men was not part of God’s plan and Jay could find spiritual ‘wholeness’ through celibacy. It is only this unvarnished view which demonstrates that advice and services offered to Jay met the programme’s definition of ‘gay conversion therapy’ (a point we expand upon in our findings under the accuracy standard).

[55]  It is arguable, therefore, that TVNZ could not have obtained accurate information about the reality of the programmes or the advice that might be offered without resorting to covert filming.

[56]  This was not a ‘fishing expedition’. In our view, publicly available information provided TVNZ with a general indication of the views and services being offered, and it was legitimate to explore further. While the hidden camera footage did not reveal unlawful behaviour, the claims made could be viewed as harmful, which was illustrated by the experiences of others interviewed in the item (for example, one individual who chose to ‘suppress’ his sexuality from his church, which made him feel as though his life was ‘out of control’ and eventually led him to engage in destructive behaviour). In our view, there was a justifiable basis for TVNZ’s misrepresentation and the use of covert filming.

[57]  We have also considered whether the programme’s identification of X, and the harm resulting from their identification, was proportionate to the level of public interest. The complainants submitted that the programme’s identification of X had a detrimental impact on their health and wellbeing, and it was open to the broadcaster to mask X’s identity to mitigate the likely harm. However, TVNZ has submitted that identification of the individuals and organisations in the programme was required in order to identify harmful practices to vulnerable individuals and to avoid implicating others.

[58]  We acknowledge that the identification of X in this broadcast caused distress. However, on balance, we consider that it was in the public interest for organisations practising gay conversion therapy, or offering similar services, to be named in order to identify these organisations to vulnerable people and to the public generally, and to avoid implicating other organisations and individuals. Given the programme argued that gay conversion therapy and other similar practices caused harm to those who participated, it was necessary, in the public interest, for the organisations to be identified in the item.

[59]  Given the organisations were named, along with their locations, in our view it was reasonable to also identify the individuals involved. This ensured that other members of those organisations (who are not involved in therapy or similar programmes) were not implicated by association.

[60]  In these circumstances, we consider that TVNZ took proportionate steps to mitigate the potential harm caused to X, through the breach of their privacy. This involved advising the complainants of the broadcast and the nature of the programme and providing them with an opportunity to comment in response (discussed further below from paragraph [69]).

[61]  As we have discussed above, this programme reported on a topic of public importance, sparking ongoing debate about the ethics of gay conversion therapy and whether New Zealand should consider banning such practices. Our view is that the high level of legitimate public interest in the programme as a whole and in the footage captured justified the broadcaster’s use of a hidden camera and the public interest defence is therefore available to the broadcaster.

[62]  For these reasons, we do not uphold the privacy complaint.

Fairness

The standard and applicable guidelines

[63] The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a broadcast. 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 a broadcast 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.

[64]  The fairness standard is therefore concerned not simply with how individuals and organisations are portrayed in a broadcast, but importantly the process by which the broadcaster, prior to broadcast, gathers material and deals with those who will be referred to or featured.14 The nature and context of the broadcast, and particularly the public interest in the broadcast, are important considerations in determining what is fair.15

[65]  In making our determination, we have considered the relevant principles under the fairness standard and have asked ourselves the following questions:

  • Were the complainants adequately informed, prior to broadcast, of the nature of their involvement, taking into account the high public interest in the programme?16
  • Were the complainants adversely affected, and if so, were they given a fair and reasonable opportunity to comment, before broadcast?17
  • Was TVNZ’s misrepresentation or deception, by use of an undercover producer and covert filming, justified in the public interest?18

[66]  We have also considered whether the edited excerpts of the hidden camera footage, broadcast during the programme, fairly and accurately reflected the tenor of the conversation between X and Jay.19 This aspect of the complaint is dealt with under the accuracy standard below, from paragraph [95].

The complaint

[67]  In summary, the complainants submitted that the broadcast was unfair because:

  • While it was clear that details of X’s conversation with Jay had been captured in some way, the complainants were not explicitly informed that X’s conversation with Jay had been covertly recorded and that this footage would be broadcast during Sunday.
  • X was not made aware that their phone conversations with Mr Chisholm on 7 June 2018 had been recorded and that these would be broadcast, given X did not realise that Mr Chisholm was a reporter for Sunday and they had informed him during the calls that they did not want to appear on camera.
  • While TVNZ sought X’s response to the programme during these phone calls, this did not amount to a fair and reasonable opportunity to comment as X was contacted on their personal cell phone number (which X understood had been provided only to Jay) and was ‘confronted’ with questions about a conversation they had believed was private in an aggressive manner.
  • The complainants were only informed by email on 13 June 2018 that the programme would be broadcast on 17 June 2018, with a statement requested by midday on 14 June 2018. This left little time to prepare a response.
  • In these circumstances, the complainants were not given a fair or reasonable opportunity to consider the issues raised by the programme or to provide a meaningful response.

The broadcaster’s response

[68]  TVNZ submitted:

  • X was advised during the second phone call with Mr Chisholm on 7 June 2018 that Sunday had evidence of them meeting with someone who wanted help with unwanted same sex attraction. X understood this to mean a recording made by Jay.
  • In relation to the recording of these phone calls, TVNZ submitted that the Authority has previously found that, provided a person knows they are speaking to a reporter and is informed of the intended broadcast, it is reasonable for them to assume a phone call could be recorded in some way and possibly broadcast.20 It would have been reasonable for X to assume their conversations with Mr Chisholm would be broadcast in some way.
  • X was properly informed of the nature of their participation. X was notified that TVNZ had evidence of X meeting with Jay 10 days prior to broadcast, and asked if they would like to take part in an on-camera interview. Sunday also put a number of questions to X by phone and email and advised the complainants of the date of broadcast. The complainants’ comments and written statement were fairly presented in the programme.
  • The programme made clear to audiences that the individuals covertly filmed believed they were providing support and advice to those who approached them for help, and that what they were doing was not illegal.
  • Identifying the individuals in the hidden camera footage was fair and warranted because of the public interest involved and the need to avoid casting suspicion over others.

Were the complainants informed about the nature of the programme and X’s participation?

[69]  Following the covert filming and prior to broadcast, Mr Chisholm spoke with X over the phone twice on 7 June 2018. During the initial phone call, Mr Chisholm advised X that he was from TVNZ’s Sunday programme and asked X a number of questions about gay conversion therapy and the view that such practices were harmful. X ended the call. Mr Chisholm phoned X a second time on this date, confirming that TVNZ had ‘evidence of [X] meeting someone who wanted help with unwanted same sex attraction’. Excerpts of these phone calls were broadcast during the programme.

[70]  It is clear from the transcript of the second 7 June 2018 phone call between X and Mr Chisholm that X understood that Jay had been posing undercover. X also appeared to understand that their conversation had been recorded in some way. In response to Mr Chisholm’s statement about the evidence that had been gathered, X said:
That was a private conversation and if he recorded it he has gone against my privacy.

[71]  In the follow-up email from TVNZ on 13 June 2018, the complainants were provided with further information about the angle and nature of the story, and an opportunity to comment in response to the issues raised. A relevant extract from this email states:

…we have evidence of you/your organisation offering to help someone using methods that professionals consider to be harmful. This includes you stating (to a person who came to you with concerns about same sex attraction) that homosexual relationships are not part of God’s plan, that accepting you are gay is the easy way out but doesn’t lead to wholeness, and that it’s possible to go from having gay feelings to becoming straight (though [the programme] offered by your organisation centres on celibacy).

[72]  While the complainants were not explicitly informed that X had been filmed covertly, we consider they could have reasonably inferred that X’s conversation with Jay had been recorded and that this recording would be broadcast during the programme. If the complainants required further information about the nature of the evidence that had been collected against them, an opportunity was provided by the broadcaster in its email on 13 June 2018 (at least four days before the broadcast on the evening of 17 June 2018), for the complainants to seek further information or to question further their involvement.

[73]  In our view, the broadcaster complied with its obligation to engage with the complainants and to provide an opportunity for them to raise concerns about the upcoming broadcast. Sufficient information was provided about the nature of the broadcast and the angle of the story, and when it would be aired, for the complainants to either respond or to seek more information prior to broadcast.

[74]  We wish to stress that broadcasters must exercise particular care in engaging with individuals or organisations who may be the subject of hidden camera footage. If an individual or organisation declines to engage with a broadcaster, the obligation still rests with the broadcaster to ensure the individual or organisation is treated fairly.21 As we have said above, the use of hidden cameras is inherently intrusive and we acknowledge the complainants’ concerns that X felt ambushed by the broadcaster’s approach in this case.

[75]  However, provided broadcasters have complied with the requirements of the standard and given individuals or organisations sufficient information about the nature of the programme and their role, and a fair and reasonable opportunity to comment, it is then up to that individual or organisation to determine an appropriate response or to engage further.

[76]  In this case, we were satisfied that the complainants were properly informed about the nature of the programme and X’s participation and they were given a reasonable opportunity to further engage with TVNZ about their participation. In these circumstances, the broadcaster complied with its obligations under the fairness standard.

[77]  Finally, we consider that the complainants could have reasonably expected that excerpts from X’s phone conversations with Mr Chisholm would be broadcast during the programme, particularly given TVNZ’s follow-up email which confirmed Mr Chisholm’s role and the nature of the story being prepared.

[78]  We therefore do not uphold this aspect of the complaint.

Were the complainants given a fair and reasonable opportunity to comment?

[79]  It is a fundamental principle of the fairness standard that if a person or organisation referred to or portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment for the programme, before the broadcast. What is fair and reasonable will depend on the circumstances.22

[80]  Given the programme’s focus on the harm that could be caused by gay conversion therapy and the fact that X and the organisation they represented were identified as offering a form of such therapy through the 12-step programme, we consider it would have been clear to the broadcaster that the complainants could be adversely affected by the broadcast and it was important for them to be provided with a fair and reasonable opportunity to comment.

[81]  The complainants have submitted that the reporter’s questioning over the phone was aggressive and did not provide X with a reasonable opportunity to respond to the issues raised.

[82]  Based on the transcript of these phone calls, provided to us by the broadcaster, and the excerpts broadcast during the programme, we agree that it appears Mr Chisholm’s questions were put to X forcefully at times. However, during the initial phone call, X was informed immediately that Mr Chisholm was calling from TVNZ’s Sunday programme, that he was working on a story about unwanted same sex attraction and organisations that offered help in this area, and that he wanted to talk more about this with X. In these respects we consider TVNZ’s approach to the conversations was fair and reasonable.

[83]  The complainants were then provided with a further opportunity to comment by email on 13 June 2018. The email, sent at 9.17am, advised the complainants that any statement would need to be received by midday the following day. In our view, this gave the complainants adequate time to prepare a statement and at least four days to take alternative action or to seek further information from the broadcaster prior to broadcast. Further, given X’s prior contact with Mr Chisholm by phone, the complainants could reasonably be expected to be aware of the upcoming story and that further action or response may be required. A statement was provided by the complainants in this case and in our view the thrust of this statement was fairly reflected in the broadcast.

[84]  We therefore do not uphold this aspect of the complaint.

Was the use of a hidden camera justified in public interest?

[85]  For the reasons we have outlined above at paragraphs [48] to [61], we consider that the use of a hidden camera was justified in the public interest and we do not uphold this aspect of the complaint.

Accuracy

The standard

[86]  The accuracy standard (Standard 9) 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 the standard is to protect audiences from being significantly misinformed. 

The complaint

[87]  The complainants submitted:

  • The international support group and the 12-step programme referred to by X during their conversation with Jay is not gay conversion therapy and was therefore misrepresented in the broadcast. Further, the support group is not currently being offered by the organisation and X’s conversation with Jay was therefore in the nature of an informal and preliminary meet-and-greet, rather than an attempt to change or suppress his sexuality.
  • In any event, during their conversation, X provided Jay with some initial information about the support group and the programme, as well as speaking from their own personal experience. The way these comments were edited together was misleading, because it meant Sunday did not ‘fully portray’ what the programme does.
  • The support group is an international apostolate offering support for those experiencing same sex attraction.23 It is a voluntary group set up by those who wish to live a ‘celibate and chaste life’. No change in orientation or ‘techniques’ are required or encouraged by the group, which focuses on seeking a closer relationship with God. There is also no effort made to ‘eliminate or reduce sexual or romantic attractions or feelings’ (though people can ‘find peace’ in a closer relationship with God). Some groups choose to use a 12-step programme for these purposes.
  • Jay persisted in asking X whether his orientation could ‘change’. X offered their opinion on this (speaking from their own experience), but did not offer to help Jay to suppress his same sex attraction.
  • The support group and the 12-step programme were therefore not clearly distinguished for the audience, who may have been misled about the nature and purpose of the programme, and the organisation offering it.

The broadcaster’s response

[88]  TVNZ submitted:

  • There are various definitions of ‘gay conversion therapy’, one of which includes:24
    …any practices by mental health providers that seek to change an individual’s sexual orientation. This includes efforts to change behaviours or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex. [TVNZ’s emphasis]
  • The support group and 12-step programme does not explicitly attempt to change sexual orientation, but rather suppress it, which is captured in the above definition. The programme was clear about X’s role and the focus of the programme, with Mr Chisholm saying: ‘The [Christian organisation’s] specialisation though is celibacy...’ and that ‘[X] says what [they do] isn’t counselling or conversion therapy’.
  • Sunday therefore advised audiences that this programme is focused on celibacy and that X, representing the programme, is not willing to ‘force’ any change in sexual orientation.
  • In any event, during their conversation X does offer Jay hope that a change in sexual orientation is possible and desirable.
  • The edited footage of X’s conversation with Jay was an accurate and fair representation of their discussion.

Was the programme referred to misrepresented in the broadcast?

[89]  The support group referred to during the broadcast is described as a group ‘for people with same sex attraction who want to live a chaste life’. It does appear to us that the group advocates celibacy as a means of managing or coping with same sex attraction.

[90]  At the outset of this episode of Sunday, the reporter defined gay conversion therapy, for the purposes of the programme, as an attempt to change or ‘suppress’ sexual orientation. This definition appears to be consistent with the principles of the support group and the 12-step programme referred to, which provides a way for men and women to seek a closer relationship with God through celibacy and the suppression of same sex desire.

[91]  Sunday emphasised the support group’s focus on celibacy, ensuring viewers were aware of the type of help that was being offered, and provided the complainants’ views in response (that the programme does not amount to gay conversion therapy or counselling and that no attempt is made to force any change in sexual orientation).

[92]  In these circumstances, we consider viewers were provided with sufficient information to make up their own minds about what was being offered to Jay and would not have been left significantly misinformed or misled about the purpose of the support group or the 12-step programme being advocated.

[93]  While the programme was no longer being offered by this particular organisation, its principles and key messages were still provided to Jay through X as its representative. We do not consider omission of this information would have resulted in audiences being misled, and we address the way the conversation between X and Jay was portrayed in the broadcast below.

[94]  For these reasons, we do not uphold this aspect of the complaint.

Did the edited excerpts accurately and fairly reflect the tenor of the conversation between X and Jay?

[95]  To assist in our consideration of this aspect of the complaint, we have had regard to the full transcript of the conversation that took place between X and Jay.

[96]  According to the transcript, during their conversation, X spoke with Jay about their view that same sex relationships could not lead to spiritual wholeness. X described the support group and the 12-step programme and its focus on celibacy, emphasising to Jay the importance of being guided by God. X said that a sexual relationship between two men was not part of God’s plan, but a closer relationship with God, as well as community and chaste friendships, could provide a sense of wholeness. X referred to a spiritual ‘journey’ led by God, saying that it would be possible for Jay to find his true identity as a child of God when his same sex desires subsided.

[97]  These views are reflected in the edited excerpts broadcast during the programme, as well as in comments by the reporter emphasising the support group’s focus on celibacy. We consider it would have been clear to viewers, based on the excerpts broadcast, that X’s discussion with Jay included some level of personal spiritual support and guidance, aside from the formal 12-step programme offered, and that X would therefore be speaking, at times, about their own personal beliefs or from personal experience.

[98]  While the complainants might have preferred for more context to be provided to viewers about the group and the kind of spiritual support it provides, overall, we do not consider viewers would have been materially misled about the nature of the discussion between Jay and X, or about the aims of the support group and the 12 step programme. As noted above, we consider the overall purpose of the support group was accurately represented in the broadcast and met the broadcast’s definition of gay conversion therapy.

[99]  We therefore do not uphold the complaints under the accuracy standard.

Name suppression

[100]  As we have noted above, given the nature and circumstances of these complaints, we have suppressed the names of the complainants, as well as other identifying information about them, in our decision. This is not withstanding our view that it was necessary, in the public interest, for the director, X, and the organisation they represented, to be identified in the broadcast itself.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

 

Judge Bill Hastings
Chair
26 February 2019

 

 

Appendix

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

1      The complainants’ formal complaint – 11 July 2018
2      TVNZ’s response to the complaint – 8 August 2018
3      The complainants’ referral to the Authority – 5 September 2018
4      TVNZ’s response to the referral – 14 September 2018
5      TVNZ’s further comments – 1 November 2018
6      The complainants’ further comments – 26 November 2018
7      TVNZ’s further comments – 30 November 2018
8      The complainants’ further comments – 4 December 2018
9      The complainants’ final comments – 7 February 2019
10     TVNZ’s confirmation of no further comment – 8 February 2019


1 GL and MediaWorks TV Ltd, Decision No. 2018-002, [18]-[19]

2 Guidance: Privacy, 9.1, Broadcasting Standards in New Zealand Codebook, page 61

3 CanWest TVWorks Ltd v XY HC Auckland CIV-2006-485-2633

Guidelines 10a and 10e

5 Guidance: Privacy, 9.3, Broadcasting Standards in New Zealand Codebook, page 61

6 Labour Member's Bill to put an end to conversion therapy

(Scoop, 21 October 2018))

7 For example: I can’t believe we haven’t already but we need to ban gay conversion therapy (The Spinoff, 12 July 2018); Government urged to ban gay conversion therapy (Newshub, 10 July 2018); Petition launched to ban gay conversion therapy in NZ (Ex Press Magazine, July 2018); and statements from the New Zealand College of Clinical Psychologists, the Human Rights Commission, the New Zealand Association of Counsellors, the Royal Australian and New Zealand College of Psychiatrists, the New Zealand Psychologists Board and the Royal College of Psychiatrists in the United Kingdom.

8 Guidance: Privacy, 3.2, Broadcasting Standards in New Zealand Codebook, page 59

9 Above, at footnote 4

10 Guidance: Privacy, 8.4, Broadcasting Standards in New Zealand Codebook, page 61

11 Above, 8.1, page 61

12 Above, 8.2, page 61   

13 O’Connell and TVWorks Ltd, Decision No. 2007-067 at [61]. See also Guidance: Privacy at 8.3, which states that the degree of public interest in the material broadcast must be proportionate to the gravity of the breach of privacy.

14 See Guidelines 11b, 11c and 11d

15 Guideline 11a

16 Guideline 11b

17 Guideline 11d

18 Guideline 11g

19 Guideline 11f

20 Citing Hutchison and Television New Zealand Ltd, Decision No. 2013-002 at [51]

21 Johnson and Television New Zealand Ltd, Decision No. 2017-055 at [60]

22  Guideline 11d

23 An ‘apostolate’ is a form of evangelistic activity or work (Oxford English Dictionary)

24 Definition taken from a bill to outlaw gay conversion therapy in California (SB-1172 Sexual orientation change efforts), see: Senate Bill No. 1172, Chapter 835 (Leg Info California)