Bennachie and TVWorks Ltd - 2008-094
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Calum Bennachie
Channel/StationTV3 # 3
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Sunrise – interview with representative of End Child Prostitution and Trafficking (ECPAT) about the release of a US report on human trafficking – allegedly unbalanced and inaccurate
Standard 4 (balance) – item offered one individual’s opinion on the report and trafficking and prostitution generally – did not discuss a controversial issue of public importance – not upheld
Standard 5 (accuracy) – interviewee made comments from ECPAT’s perspective – clearly distinguishable as comment and opinion – not upheld
This headnote does not form part of the decision.
 During Sunrise, broadcast on TV3 from 7am to 9am on 6 June 2008, one of the programme’s hosts announced that the US State Department had released its annual report on human trafficking, which “contains some strong words on New Zealand’s legalised prostitution system”. The host stated that “what’s more alarming is that we’ve become a destination country for the trafficking of women for sex from Malaysia, Hong Kong and China”.
 Sunrise’s host interviewed Lyn Mayson from the organisation End Child Prostitution, Child Pornography and Trafficking, or ECPAT, about her views on the report. She said she was surprised at the figures in the report but thought that they reflected “only part of what the picture is”, because police access to brothels and massage parlours had been limited since the introduction of the Prostitution Reform Act in 2003. She said that:
...the police can’t get access, they have to have a reason to go in. When they go in, when they notify, the kids get put in cupboards or out the back door, or they have fake IDs.
 The “kids”, she said, were mostly from Asia and brought into New Zealand to work in the sex industry, though she did not know how many; it was difficult to investigate because police funding had been reduced since the reform. Ms Mayson also said that it was “actually... quite common” for children and young people to live with gangs and exchange sex for accommodation and possessions rather than money.
 The programme’s host asked Ms Mayson how she felt we compared “on a world stage”. She responded that, in her view, “for a country like New Zealand we fare very badly... that we actually have any of the amount of child sex exploitation that we have”. The host then asked Ms Mayson how many arrests there had been in recent years of people involved in child trafficking. She said there had been:
Very, very few because it can’t be policed... I’m not blaming the police at all. They don’t have the access to police those brothels or massage parlours even in the urban areas and in the suburbs.
 The host noted that his research stated that there had been 40 or 50 arrests in 2008 for sex-related crime in Auckland, and asked Ms Mayson if she thought there was a link between the number of arrests and the law reform in 2003. She replied:
I think the numbers are way low. The legalisation of prostitution has increased child prostitution. I mean, the revision says no, but in fact, like I say, if you go into the parlours, if you go onto the streets, there is an increase. Soliciting is decriminalised so the police don’t check on it, there’s no one checking on it.
 Ms Mayson noted that the sentences imposed had been increased, though they were “not implemented so well”. When asked by the host what needs to be done about this issue, Ms Mayson responded that “we have to allow the police, or one of the organisations to police it... go in and rescue the kids, focus on the children. New Zealand has to account at the end of this year at the Law Congress in Brazil”.
 At the conclusion of the interview, Sunrise’s host commented that the report was a “wakeup call”, because although people were aware that trafficking occurred overseas, “as far as the US is concerned, this is happening right under our noses”. Ms Mayson responded, “Absolutely”.
 Calum Bennachie made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the interview was unbalanced and inaccurate.
 Mr Bennachie argued that the programme breached guideline 4a because “the individual interviewed was from an organisation that openly opposes the sex industry”. He considered that balance would have been achieved if an individual with an alternative perspective had also been interviewed. Further, he said, the programme’s host did not demonstrate impartiality with regard to the issues discussed; he described the US report as “alarming” and did not challenge the allegations made by the interviewee.
 With reference to guideline 5b, the complainant argued that the programme was misleading because the profile of New Zealand in the US Human Trafficking Report did not contain any statistical evidence to suggest that trafficking in the sex industry was prevalent in New Zealand, nor did it contain evidence to suggest that people were bringing children into New Zealand for the purpose of sexual exploitation. Mr Bennachie also contended that the focus of the interview on youth prostitution made the assumption that all young people involved in the sex industry were trafficked, which was not supported by evidence. The programme did not emphasise this lack of evidence, he said, and appeared to ignore research on youth involvement in sex work that had been released a fortnight earlier by the Christchurch School of Medicine.
 Mr Bennachie maintained that “much of what was discussed in the broadcast was not based on credible, statistical evidence but on the basis of the speculation of one individual”, in breach of guideline 5d. He said that the interviewee implied that children from Asia were being brought into New Zealand and imprisoned in brothels, and told to hide in “secret cupboards” when authorities entered the premises. There was no evidence to support these claims, the complainant said, and the host did not question the interviewee about the sources of information on which these claims were based. Mr Bennachie contended that police and immigration services entered a number of New Zealand brothels in 2007 and searched all cupboards, walls and attics, and did not find any “secret” compartments.
 The complainant noted the interviewee’s comment that “very few” arrests had been made regarding trafficking, and that she had implied that this was because of less stringent policing since the legalisation of prostitution. No attempt was made by the programme’s host, he said, to “highlight the possibility that the lack of arrests may actually relate to the prevalence of trafficking within New Zealand being considerably low”. He said that no reference was made to the actual content of the US report, which emphasised that brothels had been raided in New Zealand since the decriminalisation of prostitution, and no individuals had been identified as trafficked into the sex industry. Mr Bennachie noted that Immigration Services had admitted that, since the enactment of the Prostitution Reform Act, it had not found any evidence of trafficking despite numerous raids on brothels. All cases of trafficking in New Zealand that had been tried had involved the horticulture industry, not the sex industry.
 Mr Bennachie maintained that the interviewee’s claim that “no one can go into brothels” was inaccurate and should have been challenged by Sunrise’s host. He said that police and immigration officers had entered brothels several times in the last five years, and that police could enter a brothel at any time with a search warrant, pursuant to the Prostitution Reform Act.
 The complainant contended that the inference made by the interviewee that the legalisation of prostitution had led to increased sexual exploitation was not supported by evidence and was contrary to the research released by the Christchurch School of Medicine. He said “this was not reported, nor did the presenter question the interviewee in this respect”.
 Mr Bennachie concluded by reiterating that the content of the interview did not correspond to the content of the US Human Trafficking Report. He said that, while the report did acknowledge that a small number of young people had been found to be engaging in sex work in New Zealand, the report did not present any evidence to suggest that those young people were subject to trafficking of any kind. The interviewee’s claims that young people were routinely brought into New Zealand to work in the sex industry, and that the pimping of young women was “quite common”, were not based on factual evidence or the content of the US report, the complainant said. Further, Mr Bennachie argued that Sunrise’s host referred to “40 cases” of youth involvement in sex work but did not clarify that this was the number of charges rather than the number of individual cases, which was misleading.
 Mr Bennachie nominated Standards 4 and 5, and guidelines 4a, 5b and 5d of the Free-to-Air Television Code of Broadcasting Practice in his complaint, which 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.
Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.
Standard 5 Accuracy
News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
5b Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.
5d Factual reports on the one hand, and opinion, analysis and comment on the other, should be clearly distinguishable.
Broadcaster's Response to the Complainant
Standard 4 (balance)
 Looking at balance, TVWorks maintained that Standard 4 had no application to “reporting of this nature”. It accepted that the interview reported on the release of the US report and referred to its key findings about New Zealand, that the interviewee “transparently approached the [US report] from the ECPAT perspective” and that she offered her views in relation to the current situation in New Zealand. However, TVWorks argued, the programme did not purport to question or debate the validity of the US report in relation to New Zealand, or to provide a detailed and balanced examination of the current situation regarding child prostitution and the trafficking of children into the sex industry in New Zealand.
 Further, the interviewee’s comments “clearly reflected her position as a representative of ECPAT”. The programme did not purport to compare or contrast significant points of view relating to the incidence of child sex exploitation attributable to child trafficking in New Zealand, but principally provided an appropriate forum for the interviewee to offer her views on behalf of ECPAT, which included anecdotal evidence and comments regarding points made in the US report. TVWorks attached the “Country Narrative” for New Zealand from the report.
 The broadcaster concluded that, rather than discussing a controversial issue of public importance:
...the item, containing a significant level of subjective language including expressions of opinion, analysis and anecdotal evidence, can be more properly categorised as a programme which overwhelmingly and overtly approached both the [US report] and the topic of minors (possibly being) trafficked into New Zealand for the purpose of sexual exploitation from a particular perspective – that of [the interviewee] on behalf of ECPAT.
 Accordingly, TVWorks declined to uphold the Standard 4 complaint.
Standard 5 (accuracy)
 TVWorks emphasised that the interviewee’s comments “strongly conveyed an on-the-ground and anecdotal perspective rather than a view supported by objective research and... reliable statistics”. It considered that her comments were “overtly subjective opinion and speculation based on her experience and role as National Director of ECPAT... [and that] this would have been apparent to the average, reasonable adult viewer of Sunrise”.
 The broadcaster argued that viewers would also have understood that information in the programme that might in another context be regarded as statements of fact was, in the context of this interview, actually opinion. It believed that the lack of objectivity and impartiality alleged by the complainant was “in fact simply a strong expression of the interview subject’s belief and experience” and that would have been apparent to viewers. The US report was described as referring to New Zealand as a destination country, it said, and the programme reflected genuinely held fears that “sex trafficking is on the rise in New Zealand”, which the interviewee, on behalf of ECPAT endeavoured to explain.
 TVWorks maintained that the programme was not misleading and that it was not necessary for the interviewee to refer to the research released by the Christchurch School of Medicine “when speaking of the ECPAT perspective in plainly subjective language”.
 TVWorks noted that the interviewee said that:
- There are few arrests “because it can’t be policed”.
- The police “don’t have access to police those brothels or massage parlours”.
- “Soliciting is decriminalised, so the police don’t check on it. There’s no one checking on it.”
 However, the broadcaster maintained that she had clearly expressed, through a number of comments earlier in the interview, that police continue to have access to brothels but that access has been limited since the introduction of the Prostitution Reform Act. It noted her comments that:
- “The access to brothels and the massage parlours is much limited since the introduction of the [Prostitution Reform Act]”.
- The police “have to have a reason to go in”.
- When the police go in and “when they notify, the kids get put in cupboards”.
 She did not claim that police needed to ask permission to enter these premises, it said, but she spoke anecdotally of circumstances where she understood children being exploited for sex were hidden once police had given notice that they intended to search, as opposed to conducting a raid without warning.
 TVWorks considered that upholding the accuracy complaint would:
...impose an unrealistically high standard upon journalists and producers of the Sunrise show and... unjustifiably restrict the information available to New Zealand viewers. Where it is transparently obvious that only one perspective is being explored (and the topic is not a matter of controversy and debate) this sort of interview is acceptable and code compliant.
 The broadcaster therefore declined to uphold Mr Bennachie’s accuracy complaint.
Referral to the Authority
 Dissatisfied with TVWorks’ response, Mr Bennachie referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. He made comments with regard to balance and accuracy.
 Mr Bennachie argued that:
It is surprising, given the controversies around trafficking, the use of young people in commercial sex, and historical aspects of the Trafficking in Persons Reports that TV3 claim “the item complained about did not constitute a discussion of a controversial issue”.
 The complainant maintained that the controversial aspect of these topics had been demonstrated in several instances over the past few years, including “continual comment from Government that the US State Department is wrong in its claims in the Trafficking in Persons Report”. He noted that, following the release of the 2004 report, Phil Goff commented that “references to trafficking of persons in New Zealand [are] creating a misleading impression”. Further, the Prostitution Law Review Committee Report presented to Parliament in May 2008 reported that Immigration Services had found no evidence of trafficking in New Zealand, while the US Report stated that New Zealand had become a destination country for women trafficked from Asia. These points indicated that a degree of controversy existed with regard to the issue, Mr Bennachie said.
 The complainant considered that Ms Mayson’s comments should have been questioned by the host or presented alongside a “contra-opinion” to ensure that the programme was balanced. Without a contra-opinion, viewers were unable to assess the accuracy or otherwise of her claims, he said. Mr Bennachie considered that this was especially so given the public misunderstanding of the laws in relation to prostitution and misinformation provided by those opposed to the Prostitution Reform Act.
 Mr Bennachie argued that TVWorks had in fact denied viewers’ right to freedom of expression, “by suppressing a point of view the public have a right to hear”. Viewers could not form an informed opinion without access to both sides of the debate, he said.
 The complainant noted that, although the host accurately quoted the US Report in stating that New Zealand had become a destination country for the trafficking of women, that claim was inaccurate because the Prostitution Law Review Committee concluded that Immigration Services had not found any evidence of trafficking in the sex industry. The Committee was satisfied that “there were no internationally trafficked women working as street based sex workers in New Zealand”, he said.
 Mr Bennachie argued that the programme was inaccurate in claiming that police did not have access to brothels and would inform brothels of impending visits. Police needed a search warrant to enter a brothel, he said, but they did not notify the brothel before arriving with the warrant, as that would negate its effect. The complainant reiterated that police had searched brothels and not found any secret compartments or cupboards where children were hidden during a search.
 The complainant contended that Ms Mayson’s claim that police funding had been reduced was inaccurate. An investigation into the budget funding of the Police indicated that funding had been increased each year, he said.
 Further, the programme was inaccurate in reporting that the US Report stated that trafficking and commercial sex was “not being policed”. He quoted the US Report as actually stating that:
...police increased investigative activities... including raids in several red light areas and massage parlours suspected of sexually exploiting minors. In January 2008, police conducted a sweep in the red light district of Auckland and found 16 underage persons suspected of engaging in commercial sexual activity.
 Mr Bennachie reiterated his point that the host should have challenged Ms Mayson’s claims, but he did not, so it appeared that he was “supporting the inaccurate claims of the interviewee, further increasing the chance of people accepting fallacy as truth”.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
Standard 5 (accuracy)
 Standard 5 requires news, current affairs and factual programmes to be truthful and accurate on points of fact. The complainant identified a number of specific statements made by Ms Mayson which he considered to be inaccurate or misleading.
 The Authority considers that guideline 5d, which requires that opinion, analysis and comment be clearly distinguishable from factual reports, applies on this occasion. In the Authority’s view, it was clear that Ms Mayson was merely offering comment and speculation, from ECPAT’s perspective, about the report and the general situation in New Zealand. Although Ms Mayson was presented as someone with a degree of expertise and experience, because much of what she said was vague and ambiguous, viewers would have been extremely unlikely to interpret her comments as statements of fact.
 The Authority agrees with the complainant that the Sunrise host should have better familiarised himself with the issues raised in the report so that he could more effectively interview Ms Mayson and challenge the points she made. However, as stated above, it considers that it would have been clear to viewers that Ms Mayson was a lobbyist speaking on behalf of ECPAT, and that she was offering comment on some of the issues raised in the US report from the perspective that she – and ECPAT – disagreed with the conclusions it reached.
 Accordingly, the Authority finds that the accuracy standard did not apply to the statements complained about, and it declines to uphold the Standard 5 complaint.
Standard 4 (balance)
 Standard 4 requires broadcasters to provide balance when discussing controversial issues of public importance. In the Authority’s view, the item complained about did not purport to provide a detailed and balanced examination of the US State Department’s report, or of trafficking and prostitution in New Zealand. Rather, it sought the views of an organisation that the broadcaster could reasonably expect would provide insights into some of the issues canvassed by the report. Those views were presented by Ms Mayson, who transparently approached the report from ECPAT's perspective, and included anecdotal evidence and comments on aspects of the report. Because of the approach and focus of the item, the Authority considers it did not constitute a discussion of a controversial issue of public importance to which the balance standard applies.
 Accordingly, Standard 4 does not apply on this occasion and the Authority declines to uphold this aspect of the complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
25 November 2008
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Calum Bennachie’s formal complaint – 30 June 2008
2. TVWorks’ response to the complaint – 4 August 2008
3. Mr Bennachie’s referral to the Authority – 25 August 2008
4. TVWorks’ response to the Authority – 12 September 2008