Axford, Bate and Oldham and Television New Zealand Ltd - 2011-115
- Peter Radich (Chair)
- Leigh Pearson
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Graeme Axford
- Kristopher Bate
- Mark Oldham
BroadcasterTelevision New Zealand Ltd
Complaints under section 8(1B)(b)(i) of the Broadcasting Act 1989
Investigator Special: Jesus the Cold Case – documentary maker, Bryan Bruce, gave his perspective on the life and death of Jesus – consulted various experts – challenged traditional Christian view as encapsulated in the gospels – allegedly in breach of controversial issues, accuracy, fairness and discrimination and denigration standards
Standard 4 (controversial issues) – issues canvassed in the programme were matters of historical interest as opposed to controversial issues of public importance – authorial documentary approached from perspective of Mr Bruce – viewers could reasonably be expected to be aware of the commonly accepted view of the gospels – not upheld
Standard 5 (accuracy) – reasonable viewers would have understood that the programme consisted of Mr Bruce’s comment and opinion based on his personal research – viewers would not have been misled – given subject matter of documentary the Authority is not in a position to make definitive findings on points of fact – not upheld
Standard 6 (fairness) – programme not unfair to Christian Church as an organisation – not upheld
Standard 7 (discrimination and denigration) – programme did not encourage the denigration of, or discrimination against, Christians as a section of the community – not upheld
This headnote does not form part of the decision.
 A documentary titled Investigator Special: Jesus the Cold Case was broadcast on TV One at 8.30pm on Sunday 24 July 2011. The documentary maker, Bryan Bruce, gave his perspective on the life and death of Jesus, travelling across three continents and consulting various experts including those in the fields of archaeology and forensic anatomy, and examining the traditional Christian view, as encapsulated in the New Testament gospels. He introduced the documentary as follows:
Two thousand years ago, Jesus of Nazareth was crucified in Jerusalem. The question is, why? According to the gospels it was because his fellow Jews found him guilty of blasphemy, so they had him executed by the Roman Governor Pontius Pilate. But I’m not sure that’s how it happened. So I’ve decided to do my own investigation. I’m Bryan Bruce. I’m the cold case investigator and I want to know who killed Jesus and why.
 Graeme Axford, Kristopher Bate and Mark Oldham made formal complaints to Television New Zealand Ltd, the broadcaster, alleging that the documentary breached the controversial issues standard because Mr Bruce “cherry-picked” his experts and failed to present a reasonable range of views in the context of the programme. In addition, Mr Bate and Mr Oldham argued that the documentary was inaccurate and misleading and encouraged discrimination and denigration against Christians. Mr Bate considered that it was unfair to the subject matter under discussion and therefore to Christianity, Christians and the Christian Church.
 The issue is whether the programme breached Standards 4 (controversial issues), 5 (accuracy), 6 (fairness) and 7 (discrimination and denigration) of the Free-to-Air Television Code of Broadcasting Practice.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
What was the nature of the programme?
 On this occasion, Bryan Bruce examined events in the life and death of Jesus, a historical figure, and in doing so he expressed ideas and opinions which challenged the validity of the traditional version of events as encapsulated in the New Testament gospels, and thus indirectly, the beliefs of those who engage in religious practices based on the Bible. For example, Mr Bruce raised the following key questions during the course of the documentary:
- Who killed Jesus and why?
- Are the gospels reliable sources of information?
- Are they consistent within themselves?
- Is there any corroborating evidence from sources external to the gospels from the period, or
- Is any eyewitness testimony available?
- Where does the evidence lead us with regard to what really happened in the life and death of
 In investigating these questions, Mr Bruce travelled to Israel and made personal observations, interviewed various experts and archaeologists, reviewed historical texts and the work of 19th century scholars and applied his own logic and analysis before reaching his conclusions. In summary, Mr Bruce contended that the gospels were not “eyewitness testimony” on the life and death of Jesus and therefore may be unreliable, and that the early Christians rewrote the crucifixion story to make it appear that the Jews were responsible for Jesus’ death. In expressing these ideas, the programme followed the well-established style of The Investigator series, which is authorial in nature and approached from the perspective of Mr Bruce. It was clearly a presentation of his opinions based on his personal research, on a topic which, on this occasion, is itself a matter of opinion and belief based on an interpretation of historical events which occurred some 2000 years ago.
 With the nature of the programme in mind, we now turn to consider the standards raised by the complainants, weighed against the broadcaster’s, Mr Bruce’s, and the audience’s right to freedom of expression.
Did the programme breach broadcasting standards, taking into account the right to freedom of expression?
 At the outset, we recognise the right to freedom of expression which is guaranteed by section 14 of the Bill of Rights Act 1990, and acknowledge the importance of the values underlying that right. The right to free expression includes the freedom to seek, receive, and impart information and opinions of any kind in any form. In the broadcasting standards context, the broadcaster has the right to impart such information, while the audience has a corresponding right to receive it. Any restriction on the right to freedom of expression must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).
 In our view, the type of speech engaged on this occasion amounted to intellectual opinion on an historical and religious topic, which we consider is of high value in our democratic, tolerant and largely secular society. The right to comment on and to challenge different ideas and beliefs, including religious beliefs, is important because it contributes to the advancement of knowledge and self-fulfilment of the speaker, which are core values underpinning the right to freedom of expression.1 While we acknowledge that religion is a sensitive topic capable of evoking strong views and emotions, we do not consider that this factor alone justifies the provision of greater protection, compared to that afforded to other forms of speech, for example in the political or scientific spheres.
 Taking into account the nature of the programme, the topic under discussion and the high value of the speech engaged on this occasion, we consider that a strong justification is required to restrict the broadcaster’s right to impart such information and the audience’s right to receive it.
 With these principles in mind, we proceed to consider the broadcasting standards alleged to have been breached. While we acknowledge the extensive and detailed submissions put forward by the complainants with regard to each of the standards raised, on this occasion, we consider that it is appropriate to assess the Investigator Special: Jesus the Cold Case in its entirety, as opposed to categorising it according to the specific points raised in the complaints. We take this more general approach due to the unique nature of the programme, which in our view, directly affects the relevance of the broadcasting standards, in that it determines how it would have been interpreted by the average viewer.
Standard 4 (controversial issues)
 Standard 4 (controversial issues) 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.
 The complainants’ concerns under Standard 4 relate primarily to Mr Bruce’s choice of experts, whom they described as a “particular breed of liberals” with extreme viewpoints. In their view, he failed to present alternative significant perspectives on the reliability of the gospel accounts of the life and death of Jesus.
 We note that the Authority has previously described the objective of Standard 4 in the following terms:2
... the balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion. 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.
 In our view, while Mr Bruce’s opinions on the matters discussed in the documentary – for example, who killed Jesus and the reliability of the gospels – could be considered controversial and of concern to some members of the New Zealand public, we do not consider that those issues in and of themselves amount to controversial issues of public importance as envisaged by the standard. Rather, we consider that these are issues of historical interest that cannot legitimately be described as having “topical currency” or being of “public importance” in contemporary everyday life. The programme simply allowed one person to advance an alternative viewpoint on events that occurred some 2000 years ago, and left viewers to draw their own conclusions on the validity of that perspective.
 We do not consider that viewers were likely to be deceived or misinformed by the omission of alternative significant viewpoints, as argued by the complainants. Not least because the documentary was clearly authorial in nature, approached from the perspective of Mr Bruce, but also because the traditional view of the gospels is widely known and commonly accepted in our society, so viewers could reasonably be expected to be aware of that perspective. In this respect, we note Mr Bruce explicitly commented that:
The broadcast of my 90-minute alternative view of Easter events needs to be seen in the context of what must amount to hundreds of hours of broadcast of what, for want of a better word, may be described as the traditional gospel story.
 On this basis, we consider that the programme actually advanced the social objectives underlying Standard 4, in that it offered, and encouraged viewers to think about, an alternative theory, while still enabling them to arrive at their own conclusions based on what they already knew about the gospel stories.
 Further, we consider that Mr Bruce’s approach in examining and dismissing the gospel accounts of events in the life and death of Jesus, meant that the traditional perspective was acknowledged to some extent in the programme, so viewers would have been broadly aware of the existence of opposing views.
 For these reasons, and taking into account the principles outlined above at paragraphs  to , we decline to uphold the complaints that the programme breached Standard 4.
Standard 5 (accuracy)
 Standard 5 (accuracy) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead.
 Mr Bate and Mr Oldham argued that the broadcast as a whole was inaccurate and misleading because the tone and style of the documentary created an impression of impartiality and expertise. In addition, they referred to several specific statements about the gospels and events surrounding Jesus’ crucifixion and death, which in their view were inaccurate.
 Guideline 5a states that Standard 5 does not apply to statements which are clearly distinguishable as analysis, comment or opinion. As noted above at paragraphs  to , we consider that the documentary was inherently presented as Mr Bruce’s opinion and analysis based on his personal research. Mr Bruce clearly defined the scope of the programme in his introduction (see paragraph  above), and through his use of subjective language. The programme’s title, Investigator, also suggested that it was one in which the presenter and his views would predominate.
 The objective of Standard 5 is to protect audiences from receiving misinformation and thereby being misled. We consider that reasonable viewers would have seen the programme for what it was – an authorial programme consisting of analysis, comment and opinion in which the presenter, Mr Bruce, set about his analysis of the facts, argued for the particular conclusions he had reached, and was selective in what was put forward in support of those arguments. We therefore disagree that viewers would have been misled.
 With regard to whether the programme was inaccurate, we agree with TVNZ that, given the subject matter of the documentary (that is, events which allegedly occurred more than 2000 years ago), we are not in a position to make any definitive findings on points of fact.
 We are satisfied that the harm alleged by the complainants in relation to Standard 5 did not outweigh the importance of the right to freedom of expression. We therefore decline to uphold the complaints that the programme breached Standard 5.
Standard 6 (fairness)
 Standard 6 (fairness) requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme.
 Mr Bate argued that, given the evidence that was available but not presented, the programme did not deal fairly with “the subject matter and was therefore unfair to the Christian faith, its historical roots, Christianity as a legitimate religion and therefore Christian people, as well as the Christian Church as a legitimate expression of the historical events surrounding the life, teaching, death, burial, resurrection and ascension of Jesus”.
 We note that the fairness standard does not apply to a “subject matter”, nor does it apply to a particular religion or faith. The purpose of the standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct.3 While the programme referred to the Christian Church in an indirect and peripheral way, Mr Bruce did not make any judgement about the Church as an organisation, and we consider that, given the nature of the programme, viewers would not have been left with an unfairly negative impression of the Christian Church as it exists today.
 For these reasons, we decline to uphold Mr Bate’s complaint under Standard 6.
Standard 7 (discrimination and denigration)
 Standard 7 protects against broadcasts which encourage the denigration of, or discrimination against, a section of the community. The Authority has consistently defined “denigration” as blackening the reputation of a class of people (see, for example, Mental Health Commission and CanWest RadioWorks4), and “discrimination” as encouraging the different treatment of the members of a particular group, to their detriment (for example, see Teoh and TVNZ5). It is also well-established that in light of the requirements of the Bill of Rights Act, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standard (for example, McCartain and Angus and The Radio Network6).
 Mr Bate’s and Mr Oldham’s concerns under this standard relate to the final segment of the programme, in which Mr Bruce investigated events immediately preceding Jesus’ crucifixion and death. He interviewed various experts and examined alleged inconsistencies in the gospel accounts of what occurred on the day in question, and on this basis, came to the conclusion that the early Christians rewrote the crucifixion story to make it appear the Jews were responsible for Jesus’ death. Mr Bruce went on to suggest that blaming the Jews had led to a long history of anti-Semitism, and in particular, he asserted that the Holocaust was in part enabled by the beliefs that changes in the gospels had perpetuated for Christians.
 In this respect, the complainants argued that Mr Bruce endeavoured to connect the horrendous treatment and systematic killing of Jews in the Holocaust with the gospel accounts of the crucifixion of Jesus, which in their view, encouraged the denigration of, and discrimination against, Christians.
 In our view, Mr Bruce’s assertion that the gospels resulted in Christian contempt for the Jewish people and in part enabled the systematic killing of Jews during World War II, was not intended as an attack against the Christian faith, and was not a suggestion that Christians were inferior or should be treated differently because of their religious beliefs. Rather, Mr Bruce was putting forward propositions which, while provocative, constituted his personal observation and opinion based on a theory that is widely known and supported by historical events.7
 Guideline 7a to Standard 7 states that the standard is not intended to prevent material that is an “expression of genuinely held opinion”. As noted in paragraph  above, because democratic societies place a high value on this form of expression, there is a correspondingly high threshold for such material to be considered to have encouraged denigration or discrimination; it would have to move towards the realm of hate speech or vitriol before this threshold would be crossed. In our view, Mr Bruce expressed his opinions in a straightforward and matter-of-fact manner, without invective or disdain.
 Accordingly, we are satisfied that the broadcast did not reach the threshold necessary for encouraging discrimination against, or denigration of, Christians as a section of the community. We therefore decline to uphold the Standard 7 complaints.
 As outlined above at paragraphs  to , we consider that it is a vital component of the right to freedom of expression that these types of programmes, which stimulate thought and discussion by presenting opinions which may be considered unorthodox or controversial, be allowed, and welcomed. Having weighed the importance of the speech on this occasion with the potential harm alleged by the complainants, and caused by allowing that speech, we have come to the conclusion that upholding the complaints would place an unreasonable and unjustified restriction on the broadcaster’s, Mr Bruce’s, and the audience’s right to freedom of expression.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
20 December 2011
The following correspondence was received and considered by the Authority when it determined this complaint:
1 Graeme Axford’s formal complaint (including PDF document written by Mark Keown)
– 2 August 2011
2 TVNZ’s response to the complaint – 29 August 2011
3 Mr Axford’s referral to the Authority – 4 September 2011
4 TVNZ’s response to the Authority – 31 October 2011
1 Kristopher Bate’s formal complaint – 1 August 2011
2 TVNZ’s response to the complaint – 26 August 2011
3 Mr Bate’s referral to the Authority – 21 September 2011
4 TVNZ’s response to the Authority – 11 November 2011
5 Mr Bate’s final comment – 21 November 2011
6 TVNZ’s final comment – 29 November 2011
7 Further comments from Mr Bate – 9 December 2011
1 Mark Oldham’s formal complaint – 19 August 2011
2 TVNZ’s response to the complaint – 9 September 2011
3 Mr Oldham’s referral to the Authority – 5 October 2011
4 TVNZ’s response to the Authority – 31 October 2011
5 Mr Oldham’s final comment – 21 November 2011
1 For a more detailed discussion of the different values underpinning freedom of expression see Moving from Self-Justification to Demonstrable Justification – the Bill of Rights and the Broadcasting Standards Authority (Claudia Geiringer and Steven Price, 2008).
2Catran and Others and Kool FM, Decision No. 2009-051
3Commerce Commission and TVWorks Ltd, Decision No. 2008-014
4Decision No. 2006-030
5Decision No. 2008-091
6Decision No. 2002-152
7In its decision, TVNZ referred to a number of texts which supported the theory of Christian persecution of Jews due to the belief the Jews killed Jesus.