BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 6 (fairness) – broadcaster did not have a sufficient foundation for broadcasting serious allegations – broadcaster did not provide any details about corroborating evidence to support allegations – church was provided with a fair opportunity to comment but the item failed to adequately present the church’s response – church and Bishop treated unfairly – upheld

Standard 5 (accuracy) – Authority not in a position to determine whether impression of alleged offending was misleading – matters more appropriately addressed as issues of fairness – not 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.

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Introduction

[1]  An item on Checkpoint, broadcast on Radio New Zealand National at about 5pm on 13 April 2012, was introduced as follows:

An Anglican Minister who has been suspended after he removed children from a youth camp said he did so to protect them from a man he believed was a sexual predator. Deacon [name] is the National Youth Co-Ordinator for the Tikanga Māori strand of the Anglican Church. He was stood down from his job this week by the Te Tai Tokerau Bishop [name]. [The deacon] says he believes the reason he was suspended is that he removed 18 children in his care from the camp because there was a man there whom he had good reason to believe had sexually abused a young girl. He says he didn’t approach the Bishop because the Bishop is related to the man and was aware of the historical sexual abuse allegations.

[2]  Lloyd Ashton, the Media Officer for the Anglican Church, made a formal complaint to Radio New Zealand Ltd (RNZ), the broadcaster, alleging that the item was “seriously unbalanced and misleading”. He said that the broadcast had caused “considerable distress” to the families involved, and “by implication, publicly smeared” the Bishop.

[3]  RNZ considered the complaint under Standards 4 (controversial issues), 5 (accuracy), and 6 (fairness) of the Radio 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 complaint.

[4]  The members of the Authority have listened to 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 Checkpoint item reported on serious allegations against the Anglican Church and a particular Bishop, who was named in the broadcast. The allegations were couched as the opinion of the deacon who was also a National Youth Co-ordinator at the church. According to the deacon, he was suspended “after he removed children from a youth camp… to protect them from a man he believed was a sexual predator”. He said that he was suspended by a Bishop who was related to the man and was aware of the abuse allegations. Superficially at least, the disclosure of the allegations and the actions of the church and the Bishop were 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]  The fairness standard (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]  Mr Ashton argued that the item created an unfair impression about the nature of the alleged sexual offending, including the impression that it related to events that were current as opposed historical, which reflected badly on the church and the Bishop concerned. In summary, he maintained that the alleged sexual offending related to a “single incident” that took place between two teenagers 16 years earlier. The complainant argued that the following aspects of the item were misleading and therefore unfair:

• the introduction stated that the deacon removed the children because there was a “man there whom he had good reason to believe had sexually abused a young girl” [complainant’s emphasis]
  
• the item implied that, because the Bishop was related to the man and was aware of the abuse allegations, he had motivation to protect the alleged abuser
  
• the item failed to mention that the Bishop was also “closely related” to the alleged victim
  
• the item unfairly portrayed a meeting that took place between an RNZ reporter and the Bishop.

[11]  RNZ argued that the focus of the item was the background to the deacon’s suspension for removing children from the youth camp. It did not consider that the item was unfair to the church or the Bishop.

[12]  We have addressed the fairness complaint in three parts:

• Given the nature of the allegations made in the item, did the broadcaster have sufficient foundation to broadcast the material?
  
• Was the church provided with a fair and reasonable opportunity to comment on the allegations, and to put forward its perspective?
  
• Was the summary of the church’s response fair?

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

[13]  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 named 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.

[14]  Here, the broadcaster has indicated that the claims made by the deacon were corroborated by another source. It did not tell its listeners this and has only referred to a second source in response to this complaint. In its response to this complaint it has not identified the source nor disclosed any information about it. RNZ stated, “[the] complaint alleges that the broadcast included ‘second-hand rumour’ with respect to the sexual abuse allegation. [RNZ] rejects this proposition as we would not and did not broadcast such material relying on a single source”.

[15]  We acknowledge that broadcasters are reluctant to disclose the identity of their sources or information which may lead to the identification of these sources. We accept that the desirability of the free flow of information to news gatherers means that broadcasters such as RNZ should not ordinarily be required to reveal information which may lead to the source of the information being identified. It does not however automatically follow that a broadcaster is entitled to put a cloak over all information which gives corroboration to the broadcast item. A broadcaster which says that it has corroboration, but chose not to tell listeners at the time of broadcast or to later indicate where that corroboration came from and, in broad terms, what that corroboration reveals, is at risk of the adequacy of the corroboration being doubted.

[16]  When a broadcaster is not willing to explain any of its corroborating material then the care which it takes in giving persons adversely affected by the broadcast a proper opportunity to respond increases accordingly. This is especially so when the allegations being made are serious. What has happened here is that the broadcaster has not disclosed anything about the corroboration and has put itself in a position where to justify what it broadcast it has to rely on the Bishop having been given a fair opportunity to respond and on those responses being fairly summarised. For reasons which we express in paragraphs [23] to [31] we think that, overall, the broadcaster failed in its responsibilities.

Was the church provided with a fair and reasonable opportunity to comment?

[17]  We requested further information from the parties about the attempts made by the broadcaster to obtain comment from the church on the allegations made in the item. In response, RNZ provided an affidavit from the reporter, and Mr Ashton was given an opportunity to comment on the contents of that affidavit.

[18]  According to the further information provided, on the morning of Friday 13 April between 8am and 9am, an RNZ reporter went to a meeting at the church to interview the Bishop. The Bishop described this meeting as a “hui amorangi”, a formal annual conference led by the Bishop. The reporter maintained that she asked the Bishop for his perspective on the issues in order to decide “whether or not to continue with the story and to ensure that [RNZ’s] reporting was fair and accurate”.

[19]  While the Bishop gave some information about the deacon’s suspension (as discussed below), which should have been included in the report, he did not address the issues in any detail, and in particular, he did not comment on the sexual abuse allegations, except to say that the information the reporter had was inaccurate.

[20]  As the allegations were of a serious nature, we consider it was appropriate for RNZ to send a reporter to the church to interview the Bishop, at which point he was provided with an opportunity to comment on the legitimacy of the abuse allegations. It was at this time, early on the morning of 13 April, that the church (through the Bishop) was deemed to have been put on notice of the intended RNZ broadcast. The Bishop could have provided a more detailed response sometime later in the day, or could have charged someone else with providing a response; for example, one could reasonably expect Mr Ashton, as the church’s media officer, to have formulated at least a brief response before the broadcast went to air at 5pm.

[21]  It appears that RNZ also tried to contact the Bishop by telephone later in the day; the reporter stated in the item, “The Bishop hasn’t responded to our calls this evening”. It was not disputed by the complainant that these calls were made.

[22]  We are therefore satisfied that the broadcaster’s efforts to obtain comment for the item were fair and reasonable.

Was the summary of the church’s response fair?

[23]  While the church, through the Bishop, was provided with an adequate opportunity to comment, and, in our view, could have been more active in ensuring that RNZ had a better understanding of the issues, we find that the item failed to properly characterise the Bishop’s response. Importantly, the item did not refer to the part of the Bishop’s response which refuted the accuracy of the allegations and indicated the existence of wider employment issues.

[24]  In response to our request for further information, the reporter, in her affidavit, explained what the Bishop told her, as follows:

The Bishop advised me that the information I had was inaccurate and that a letter had been sent to [the deacon] advising him that he was suspended including the reasons why. The Bishop advised that those reasons were different to what [the deacon] had advised RNZ… I asked for a copy of that letter, a request which the Bishop refused. He advised that I should get a copy of the letter from [the deacon]… The Bishop then advised me I was ignorant, uninformed, and acting irresponsibly as a journalist, that I was very naïve and stupid not to have all the information at hand before I spoke to him… I advised him that I was unaware that the letter from the Anglican Church existed…

[25]  Mr Ashton explained that the Bishop did not disclose the contents of the letter (the Notice of Suspension) because it would be a breach of the church’s obligations under privacy law to discuss a private employment matter or to divulge information without the employee’s consent. He wrote, “it is relevant that the Bishop encouraged the reporter to ask [the deacon] for a copy of the Notice of Suspension… This should have alerted her to the possibility that RNZ was dealing with a disgruntled employee, whose motives should have been questioned”.

[26]  In the Checkpoint item, however, the Bishop’s response was presented as follows:

The Bishop hasn’t responded to our calls this evening, but we did send a reporter along this morning to a meeting at the church… She came back somewhat shaken because the Bishop gave her something of a rocket. He said things like, he called her ignorant, ill-informed. He said she was acting irresponsibly, she was naïve and stupid. So there was a bit of a barrage there in front of a group of people. Then he told her that she wasn’t following due protocols befitting the church and she wasn’t worthy in the eyes of God. So she came back rather shaken by this.

[27]  In our view, the Bishop’s response was not fairly or adequately presented in the item, and his meeting with the reporter was not fairly portrayed. The reporter admits by affidavit (see paragraph [24] above) that what the Bishop actually told her was:

• the information she had about the sexual abuse allegations was inaccurate
  
• a Notice of Suspension had been sent to the deacon advising him that he was suspended and outlining the reasons why
  
• the reasons given in the Notice of Suspension were different to what the deacon had told RNZ
  
• a copy of the Notice of Suspension should be obtained from the deacon.

[28]  Instead of including these key points in the summary of the Bishop’s response, the item simply suggested the Bishop had called the reporter “ignorant” and said that she was “acting irresponsibly”, but did not report that these comments related to the Bishop’s views on the reporter’s apparent lack of concern for, or knowledge of, privacy and employment law issues.

[29]  The Checkpoint item did refer to the Notice of Suspension, though in a selective manner. The presenter stated, “In his Notice of Suspension to [the deacon], Bishop [name] accuses him of failing to observe protocols and removing children without parental consent…” This was consistent with the deacon’s claims of unjustified dismissal, and the report did not allude to the existence of other employment issues, (in a way that was permissible given the issues of privacy).

[30]  The failure to properly characterise the Bishop’s response and the omission of information relating to the deacon’s suspension, was, in our view, unfair.

Conclusion on fairness

[31]  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 solely 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, broadcast without any balancing comment. We have no evidence of corroboration beyond the bare statement that the broadcaster had corroboration but will not disclose it. A reasonable opportunity was given to the church, through the Bishop, to respond, but regrettably those responses were not fairly summarised and the Bishop’s expressed position was not reported by the broadcaster. The harm caused in this instance, in terms of the objectives of the fairness standard, outweighed the broadcaster’s right to freedom of expression.

[32]  For these reasons, and giving full weight to the requirements of the New Zealand Bill of Rights Act 1990, we find that upholding the fairness complaint would be a reasonable limit on the broadcaster’s right to freedom of expression. We therefore uphold this part of complaint.

Was the item inaccurate or misleading?

[33]  The accuracy standard (Standard 5) 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.³

[34]  Mr Ashton’s primary concern was that the item misrepresented the nature of the alleged sexual offending. We are not in a position to make any finding as to the nature of the alleged abuse. The broadcaster put the alleged historical sexual delinquency at a high level by referring to the man as a “sexual predator” and by saying that he had “sexually abused a young girl”. This suggested that there was seriously exploitive, and probably criminal, behaviour on the part of an older male with a younger girl. As we say, we are not in any position to know where the truth lies. However, we observe that care needs to be taken by broadcasters to ensure that there is a proper foundation for descriptions of this kind.

[35]  For these reasons, we are unwilling to assess the accuracy or otherwise of how the alleged offending was characterised. The complaint here is more properly considered under the fairness standard.

[36]  Accordingly, we decline to uphold the accuracy complaint.

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

[37]  The balance standard (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.

[38]  The Authority has previously stated that the balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.⁴ The standard only applies to programmes which discuss “controversial issues of public importance”, and therefore this objective is of vital importance in a free and democratic society.

[39]  RNZ accepted that child abuse was a controversial issue of public importance. However, it doubted whether the deacon’s suspension in itself amounted to such an issue. In any event, it considered that the story was ongoing and so the period of current interest was still open.

[40]  The focus of the item was the allegations made by the deacon against the church and the Bishop, relating to his suspension. It did not examine wider issues such as sexual abuse or the responsibilities of organisations that discover that a member is a sexual offender. We therefore find that the item did not discuss a controversial issue of public importance to which the standard applied. Again, we think that the complainant’s concerns here are more appropriately addressed as matters of fairness.

[41]  Accordingly, we decline to uphold the complaint under Standard 4.

For the above reasons the Authority upholds the complaint that the broadcast by Radio New Zealand Ltd of an item on Checkpoint on 13 April 2012 breached Standard 6 of the Radio Code of Broadcasting Practice.

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

[43]  The church’s legal counsel made submissions on behalf of the complainant, asking the broadcaster to engage in discussions to decide on some form of redress acceptable to both parties. RNZ did not make any further submissions, noting that the Authority had recently released a decision on a similar complaint from Mr Ashton, so it expected a similar outcome.⁵

[44]  In all the 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
27 February 2013

Appendix

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

1           Lloyd Ashton’s formal complaint – 23 April 2012

2          RNZ’s response to the complaint – 25 Mary 2012

3          Mr Ashton’s referral to the Authority – 5 June 2012

4          RNZ’s response to the Authority – 30 June 2012

5          RNZ’s response to the Authority’s request for further information – 12 September 2012

6          Mr Ashton’s response to RNZ’s further information – 20 September 2012

7          Mr Ashton’s submissions on provisional decision and orders – 26, 27, 30 November 2012

8          RNZ’s submissions on provisional decision and orders – 14 February 2013

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

³Bush and Television New Zealand Ltd, Decision No. 2010-036

⁴Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁵Ashton and Payne and Māori Television, Decision No. 2012-054