BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Sunday – euthanasia – interview with Lesley Martin charged with murder of terminally ill mother – some other views advanced – unbalanced

Complaint
Holmes – euthanasia – interview with Lesley Martin – no other views advanced – unbalanced

Findings
Sunday – Standard 4 and Guidelines 4a and 4b – item not a debate about euthanasia and included range of personal stories – not unbalanced – no uphold

Findings
Holmes – Standard 4 and Guidelines 4a and 4b – item involved interview with current newsmaker – her views about euthanasia balanced by other items during period of current interest – no uphold

This headnote does not form part of the decision.

Summary – Sunday

[1] Euthanasia was the subject of an item on Sunday broadcast on TV One at 7.30pm on 9 March 2003. The item included an interview with Lesley Martin, the author of a book about euthanasia, who, since the interview was recorded, had been charged with the murder of her mother. The item also contained an interview with Dr Philip Nitschke of Melbourne, an advocate of euthanasia, and a number of other people who had contemplated euthanasia.

[2] D A Armstrong complained to Television New Zealand Ltd, the broadcaster, that the item was unbalanced as there had been no attempt to present the views of those who opposed euthanasia.

[3] P Schaab also complained that the item was unbalanced, commenting that the brief time given to those who opposed euthanasia amounted to "tokenism". Pointing out that a condition of Ms Martin’s bail following her arrest precluded her giving interviews to the media, Mr Schaab said that TVNZ’s propriety in screening the interview was "reprehensible".

[4] In its response, TVNZ stated that the item was not intended to be a debate about the morality of euthanasia. Rather, it said, it was a human story about how a number of people had confronted the issue of euthanasia. Furthermore, a number of people had expressed an anti-euthanasia view and, TVNZ maintained, balance had been achieved as required by the Code given the format of the item.

[5] Dissatisfied with TVNZ’s decision, D A Armstrong and P Schaab individually referred their complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

Summary – Holmes

[6] Lesley Martin was interviewed in an item on Holmes, broadcast on TV One at 7.00pm on 26 March 2003, after the removal of the condition of her bail that she could not give interviews to the media. She expressed strong support for a proposed law change suggested in a Private Member’s Bill which would allow assisted euthanasia of the terminally-ill.

[7] P Schaab complained to Television New Zealand Ltd, the broadcaster, that there had been no attempt to provide balance. He also complained about the partisan attitude displayed by the interviewer (Paul Holmes). D A Armstrong also complained about the item’s lack of balance, and described the item as a "barefaced" advertisement for euthanasia.

[8] In response to P Schaab, TVNZ stated that Lesley Martin was a "current newsmaker", and it argued that it was not necessary to include an opposing view when an interview was conducted with one person who supported euthanasia, in view of the ongoing debate. It declined to uphold the complaint.

[9] Dissatisfied with TVNZ’s decision on the complaint, P Schaab referred it to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989. As TVNZ did not respond, D A Armstrong referred the complaint to the Authority under s.8(1)(b) of the Act.

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

Decision

[10] The members of the Authority have viewed a video of each of the programmes complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaints without a formal hearing.

The Programme – Sunday – 9 March

[11] Aspects of euthanasia were dealt with in an item on the current affairs programme, Sunday, broadcast on TV One at 7.30pm on 9 March. The item included an interview with Lesley Martin, the author of To Die Like a Dog, a book about euthanasia, who, since the interview was recorded, had been charged with the murder of her mother. The item also contained an interview with Dr Philip Nitschke of Melbourne, an advocate of euthanasia, and a number of other people who had contemplated euthanasia.

[12] The item recorded that, as a condition of bail, Lesley Martin had been prohibited from giving interviews with the media. It also advised that the interview, which was screened on 9 March, had been recorded before Ms Martin had been charged.

The Programme – Holmes – 26 March

[13] Lesley Martin was interviewed in an item on Holmes, broadcast on TV One at 7.00pm on 26 March 2003, after the removal of the condition of her bail that she could not give interviews to the media. She expressed strong support for a proposed law change advanced in a Private Member’s Bill which would allow assisted euthanasia of the terminally-ill.

The Complaints – Sunday

[14] Arguing that the script could have been written by the Voluntary Euthanasia Society, D A Armstrong complained that the Sunday item was unbalanced as there had been no attempt to present the views of those opposed to euthanasia.

[15] D A Armstrong contended that a fully researched item would have included the views of other members of Ms Martin’s family, the views of the NZ Medical Association, and a range of views from Christian organisations.

[16] Questioning TVNZ’s propriety in screening the interview on Sunday in view of the conditions of Ms Martin’s bail, P Schaab pointed out that the item included the views of a number of people with disabilities who expressed strong views in support of a law change. He continued:

The inclusion of those with a contrary view, considering the difference in time allowed, gave the appearance of tokenism in order to claim balance.

[17] P Schaab contended that the item gave the impression of facilitating the Private Member’s Bill at present before Parliament. In order to comply with the requirement in the standards for balance, P Schaab argued that the item should have featured a conclusion which summed up the points for and against the proposition.

The Complaints – Holmes

[18] Describing the Holmes item as a "barefaced advertisement" for euthanasia, D A Armstrong said Ms Martin was not asked any challenging questions. She was allowed, the complainant added, to exhort viewers to write to politicians urging support for the Private Member’s Bill. D A Armstrong wrote:

The opposition to euthanasia is widespread, informed, competent and even within her own family … . The fact that TV One in particular has seen fit to present only one side of a contentious issue, when there is a bill before Parliament seeking a change in the law, is the ultimate in unbalanced reporting, and a disservice to informed public debate.

[19] Noting that the full item on Holmes enabled Ms Martin to put her case in support of voluntary euthanasia, P Schaab complained that there had been no attempt to provide balance as required by the standards when a controversial issue was discussed. Moreover, Ms Martin had appealed directly to viewers to write to their MP. At the end of the interview, she had used what P Schaab described as her "catchphrase", "A good life is deserving of a good death", to which the presenter added: "Well said".

[20] Highlighting the item’s total lack of balance, P Schaab concluded that it involved a "disgraceful exhibition" of "blatant partisanship" on the part of TVNZ.

The Standards

[21] In view of the issues raised by the complainants, TVNZ assessed the complaint under Standard 4 of the Free-to-Air Television Code of Broadcasting Practice. Standard 4, and relevant Guidelines, provide:

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.

4c  Factual programmes, and programmes shown which approach a topic from a particular or personal perspective (for example, authorial documentaries and those shown on access television,) may not be required to observe to the letter the requirements of standard 4.

The Broadcaster’s Response to the Complainants – Sunday

[22] TVNZ’s response to each complainant about the Sunday item was similar. The item, it wrote, used Ms Martin’s case as an anchor to examine the cases of people who had personally confronted the issue of euthanasia. The other cases included two women with the same neurological disease who were in email contact. One wanted euthanasia and the other was strongly opposed.

[23] Addressing the complaints that the item lacked balance, TVNZ wrote:

The [complaints] committee viewed the item and noted that it was clearly not intended to be a formal debate about the morality of euthanasia. This was a human story about the way individual people who have been confronted with the issue of euthanasia responded to that predicament. It explored the way they were thinking, and their reasoning in deciding whether to favour euthanasia in their particular circumstances or to reject it.

[24] TVNZ acknowledged that most of the people featured spoke in support of euthanasia, but maintained that the opposing view had a "strong presence". It listed some of the occasions when a spokesperson or the reporter advanced an anti-euthanasia viewpoint.

[25] Focusing on the requirement in Guideline 4b that no set formula can be advanced for the allocation of time, TVNZ stated:

The nature of this item required acknowledgments such as those listed above that there is strong argument against voluntary euthanasia. But, in the opinion of the [complaints] committee, an item recounting human stories such as this did not require that the whole euthanasia debate be restated, as might be the case in a sit-down studio discussion.

[26] In view of the nature of the programme, TVNZ submitted that the formal presentation of religious or medical views would have been inappropriate. Moreover, given the reference to the period of current interest in Standard 4, TVNZ stated that the issue of euthanasia had been approached from many angles in a variety of programmes over the years. It declined to uphold the complaints.

[27] Dealing specifically with P Schaab’s point about screening the interview on Sunday in view of the condition of Ms Martin’s bail, TVNZ explained that there was no such restriction in place when the interview took place. Legal advice had confirmed that Sunday was within its rights to screen the item.

The Broadcaster’s Response to the Complainants – Holmes

[28] In response to P Schaab, TVNZ explained that the interview with Ms Martin, "a passionate supporter of the right of the very ill to ‘die with dignity’", was recorded after the condition of bail preventing her from speaking to the media had been lifted. It continued:

Noted first by the [complaints] committee was the fact that Ms Martin is a current newsmaker. She is someone who is before the public because of the unusual circumstances she is facing through having been charged with the attempted murder of her mother and because of the broader context of the euthanasia debate. It was the purpose of the interview to provide viewers with an insight into what drives Ms Martin, and how she deals with her moral dilemma. The committee believed this was very much an interview about the personal beliefs of someone when at that time those personal beliefs were a matter of strong public interest.

[29] TVNZ then expressed the view that it was unnecessary for the opposing views to be advanced each time a person, whether supporting or opposing euthanasia, was interviewed. If that was the requirement, TVNZ argued, viewers would hear speakers restate established positions, rather than allow the debate to progress. TVNZ observed:

Ms Martin outlined in this interview her personal convictions on the matter. It was the committee’s opinion that viewers would recognise that a personal opinion was being voiced, and accept it as such, while at the same time recognising that hers is not the only point of view on the subject. Ms Martin’s comments were one more ingredient in a controversial and ongoing public discussion, but this interview was not a set debate about the pros and cons of euthanasia.

[30] TVNZ also noted that Standard 4 allowed for balance to be achieved "within the period of current interest", and said that the divergent polarised views had been advanced in a number of programmes. In addition, TVNZ wrote:

There was a further contextual matter discussed by the committee and that involved the type of programme in which this interview appeared. Through the many years that it has been running Holmes has consistently and regularly shown stories about people in which they themselves are given the opportunity to express their views. This approach of giving voice to New Zealanders who are making news that day is summed up in the oft repeated closing line in the programme – "those were our people today, that’s Holmes tonight".

[31] Noting that Guideline 4c permitted programmes which did not comply with the strict requirement in Standard 4 when a topic was approached "from a particular perspective", TVNZ considered that viewers would be left in no doubt that the item contained the personal perspective of Ms Martin. It declined to uphold the complaints.

The Referrals to the Broadcasting Standards Authority

[32] When referring the complaint about the Sunday programme, D A Armstrong pointed out that TVNZ had admitted that the item was sympathetic to the view that euthanasia was a desirable societal objective, and commented that Ms Martin was "not an innocent little person caught up in a difficult family situation", but was "active in organising support for euthanasia, and is working with Australian Dr Nitschke to this end". TVNZ, he contended, should have tested her stance thoroughly.

[33] D A Armstrong commented on each of the six quotes from the programme which, TVNZ said, advanced the anti-euthanasia viewpoint and questioned the impact of each one. He reiterated his contention that the item should have included the views of other members of Ms Martin’s family, and the medical profession.

[34] In response to TVNZ’s argument that the presentation of human stories did not require a sit down discussion restating the euthanasia debate, D A Armstrong argued that recent TVNZ programmes were "unfortunately all heavily weighted in favour" of euthanasia. While he accepted that all viewpoints could not be contained in one programme, D A Armstrong wrote:

It is obvious that no attempt has been made by the producer of "Sunday", or any other producer from TVNZ for that matter, to provide a balanced presentation of this debate as they are required by the Television Code of Broadcasting Practice to do.

[35] D A Armstrong later submitted an article from the "Wanganui Chronicle" which reported a disagreement between Lesley Martin and her sister, Louise Britton. While Ms Britton was reported to be in favour of voluntary euthanasia for the terminally ill if the family agreed, she believed she should have been consulted in regard to her mother, and she disliked the photograph of her mother which had been used in the book To Die Like a Dog.

[36] When referring the complaint about the Holmes item, D A Armstrong noted that TVNZ had not responded to the complaint that the item was "quite biased in favour of euthanasia".

[37] P Schaab referred the complaints about both broadcasts at the same time. P Schaab also referred to TVNZ’s concession that the Sunday item spoke favourably of euthanasia, and disputed TVNZ’s contention that there was a "strong presence" of the opposing view. As for the Holmes item, P Schaab said that TVNZ had made no attempt to provide balance. Noting TVNZ’s reference to Guideline 4c, P Schaab speculated:

One wonders, then, what is the purpose of the Broadcasting Act’s requirement to provide balance when it apparently may be evaded should a broadcaster be determined to do so.

[38] P Schaab also wrote:

The broadcaster relies on the provision for balance to be achieved within the current period of interest and maintains that TVNZ had made it "very clear" over the years that views on euthanasia are both passionately held and polarised. Although the BSA can consider only the complaints currently in reference, as the broadcaster has raised the matter it could well be asked to identify those programme it considers were balanced. In my observation "current newsmakers" as Martin is described, and invariably others championing voluntary euthanasia, have been seized on as the opportunity presented and their philosophy given sympathetic and biased exposure. In no instance do I recall such facility being accorded anyone of the opposing viewpoint to appear as the main focus of the feature.

The Broadcaster’s Response to the Authority

[39] TVNZ apologised that D A Armstrong had not received a response, adding:

We do, however, point out that there is nothing in the 27^th March letter which suggests that it was intended as a formal complaint. Because only formal complaints (those referred to in s6(1)(a) of the Act) can be referred to the Authority under s8(b) we request the Authority give consideration to whether on this occasion there ever was a formal complaint which could be referred to the Authority for investigation and review.

[40] On the basis that the Authority might accept D A Armstrong’s letter of 27 March as a formal complaint that the Holmes item had failed to comply with the requirement for balance in Standard 4, TVNZ reiterated the points it had made to P Schaab contained in paras [28] to [30] above.

[41] TVNZ recommended to the Authority, should it accept the referral, that it decline to uphold the complaint.

[42] In its response to the referral by D A Armstrong of the complaint about the item on Sunday, and to the referrals by P Schaab of both broadcasts, TVNZ had nothing further to add.

The Complainants’ Final Comments

[43] In a final comment about the item on Sunday, D A Armstrong contended that TVNZ had over-simplified the story when it described it as "merely a human story about an individual". Rather, D A Armstrong wrote, TVNZ had not considered:

that Ms Martin’s family were not happy with her treatment of her mother;

that Ms Martin was, and continued to be, associated with Philip Nitschke, an Australian euthanasia campaigner;

that the thrust of the programme allowed Ms Martin to give prominence to her views about euthanasia; and

that the complaint focused on the need for balance.

[44] D A Armstrong concluded:

I do not necessarily expect a balance in each individual programme, but TVNZ has not had any programmes around this time to do with the other side of the euthanasia issue. I recall that since this issue was brought forward by Peter Brown’s "Death with Dignity" bill that Lesley Martin has been interviewed on the occasion of her book launch, her fiance interviewed when she was banned from public speaking, again Lesley Martin on "Holmes" when the ban was lifted, and the "Sunday" programme. It is surely indefensible for TVNZ to claim that they have treated the euthanasia debate with balance and integrity as a public broadcaster is required to.

[45] In a final comment about the item on Holmes, D A Armstrong described as naïve for TVNZ to claim that the item did not add "substantially to the promotion of euthanasia". The four programmes which featured Lesley Martin, D A Armstrong wrote, had not been matched with any programmes featuring opposition to euthanasia, adding:

I think it pertinent to observe that if the euthanasia legislation was not pending, and under public debate, there would not have been four programmes featuring Lesley Martin.

The Authority’s Determination

[46] Dealing first with TVNZ’s request for comment on whether D A Armstrong’s letter of 27 March amounted to a formal complaint, the Authority is of the view that the complainant, by referring to a specific programme and expressing a concern about balance, clearly complied with the requirements for a formal complaint set out in s.6(1) of the Broadcasting Act 1989.

[47] Both complainants considered that the Sunday item was unbalanced in that it supported the case, they contended, for changes in regard to the law prohibiting euthanasia. In its response, TVNZ argued that the item examined the cases of a number of people who had personally confronted the issue of euthanasia.

[48] The Authority considers that TVNZ’s argument is more appropriate as the item was not a philosophical debate about euthanasia. Rather, it focused on a number of individuals and range of perspectives – both in support of and against euthanasia. These were expressed as personal opinions or individual experiences. Given that the item dealt with a number of people who expressed a variety of views, the Authority considers that the broadcast did not contravene the requirement for balance.

[49] Lesley Martin, a supporter of a law change, was one of a number of people interviewed for the Sunday item. As a condition of bail, after her arrest in March 2003 on a charge of murdering her mother, Lesley Martin was not allowed to speak to the media. When the condition was removed, Ms Martin became a "newsmaker". Accordingly, the Authority is not surprised that, following the removal of the condition, she was interviewed on Holmes and given the opportunity to put her personal story. That story included her campaign to support the Private Members’ Bill to allow euthanasia. Ms Martin spoke persuasively and the item, as the complainants pointed out, was not balanced by a proponent in support of the current position.

[50] The Authority is of the view that s.14 of the New Zealand Bill of Rights Act 1990, which endorses freedom of expression, is relevant, and facilitates proponents of change to advance their case. But despite the focus on freedom of expression, it is still necessary, given the requirement for balance under the broadcasting standards regime, to ensure that significant opposing views are broadcast at the same time or within the period of current interest.

[51] TVNZ maintained that a range of views had been presented about euthanasia within the period of current interest. That contention was disputed by D A Armstrong who argued that only one side of the debate had been presented in recent programmes.

[52] While accepting that the focus recently might have been on proponents for change given the Private Member’s Bill, the Authority does not accept that the debate has been dealt with by TVNZ in a one-sided manner. It considers, contrary to the complainants’ espoused view, that the Sunday item broadcast on 9 March to have included a range of views. Accordingly, the Authority accepts TVNZ’s contention that both sides of the euthanasia debate have been covered during the period of current interest. Therefore, it declines to uphold the complaint that the item broadcast on Holmes on 26 March breached Standard 4 of the Code.

[53] The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply 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 above reasons, the Authority declines to uphold the complaints.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
24 July 2003

Appendix

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

1. D A Armstrong’s Formal Complaint to Television New Zealand Ltd about Sunday broadcast on 9 March 2003 – 11 March 2003
2. P Schaab’s Formal Complaint to Television New Zealand Ltd about Sunday broadcast on 9 March 2003 – 11 March 2003
3. P Schaab’s Formal Complaint to Television New Zealand Ltd about Holmes broadcast on 26 March 2003 – 26 March 2003
4. P Schaab’s Further Letter to TVNZ – 2 April 2003
5. TVNZ’s Response to D A Armstrong – 3 April 2003
6. TVNZ’s Response to P Schaab – 3 April 2003
7. TVNZ’s Response to P Schaab in regard to Holmes item – 23 April 2003
8. D A Armstrong’s Referral to Broadcasting Standards Authority in regard to Sunday item –
   26 April 2003
9. P Schaab’s Referral of both items to Broadcasting Standards Authority – 28 April 2003
10. TVNZ’s Response to the Authority in regard to D A Armstrong’s referral of the Sunday item –
    9 May 2003
11. TVNZ’s Response to the Authority in regard to P Schaab’s Referral of both items – 12 May 2003
12. TVNZ’s Response to the Authority in regard to D A Armstrong’s referral of the Holmes item –
    15 May 2003
13. D A Armstrong’s Response in regard to the Referral of Holmes item – 17 May 2003
14. D A Armstrong’s Final Comment in regard to the Sunday item – 19 May 2003
15. TVNZ’s Response to the Authority in regard to the Referral by D A Armstrong of the Holmes item – 29 May 2003
16. D A Armstrong’s Final Comment in regard to the Holmes item – 16 June 2003