BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has not upheld a complaint that an interview with ACT Party leader David Seymour, on the day of the final reading in Parliament of the End of Life Choice Bill, was unbalanced. The complainant submitted that Mr Seymour was given free licence to give his views from his perspective as the sponsor and a strong advocate of the Bill, and it was important that either someone with opposing views was also given an opportunity, or that the interviewer critically questioned him, given the item’s proximity to the final reading of the Bill. The Authority accepted that issues surrounding the Bill and the euthanasia debate more broadly amounted to a controversial issue of public importance that triggered the requirements of the balance standard. However, it noted the balance standard allows for significant viewpoints to be presented over time (within the period of current interest), and the Authority was satisfied the issue was widely covered in the months preceding the second and third (final) reading of the Bill, including presenting opposing views. Additionally, the Authority found both the interviewer and Mr Seymour acknowledged the existence of alternative perspectives within the item.

Not Upheld: Balance

The broadcast

[1]  ACT Party leader David Seymour, the sponsor of the End of Life Choice Bill (the Bill), was interviewed by Kim Hill on Morning Report on the day the Bill was due to have its third and final reading in Parliament. The five-minute interview covered Mr Seymour’s views on the likelihood of the Bill passing its third reading, and some changes that had been made to the Bill in the course of the legislative process.

[2]  The interview was broadcast at 7.50am on 13 November 2019 on RNZ National. As part of our consideration of this complaint the members of the Authority have listened to a recording of the broadcast, and read the correspondence listed in the Appendix.

The complaint

[3] Daniel Bidwell complained that the item breached the balance standard of the Radio Code of Broadcasting Practice, for the following reasons:

• The issue of the End of Life Choice Bill is controversial and of public importance, and has significant implications for New Zealand.
• Kim Hill only interviewed David Seymour who is the sponsor and a strong advocate of the Bill.
• There is no shortage of people who could have been interviewed for a different viewpoint, and there was no mention in the segment of RNZ having contacted anyone for such a view, suggesting they did not make ‘reasonable efforts’ as required by the standard.
• ‘Considering the urgency of the situation, that the interview was being conducted 12 hours prior to the 3rd reading taking place in parliament, it was vitally important that a balanced approach was taken. A balanced approach would have given the public information to consider that they could then choose to action upon such as making contact with their local MP during the day.’
• He was concerned with Ms Hill’s interviewing approach, as she did not critically question or challenge Mr Seymour or the evidence he gave. ‘It seemed that David Seymour had free licence to present his viewpoints without sufficient critique.’
• In its response to his complaint RNZ seemed to be making an assumption that all RNZ listeners are regular listeners and therefore would have had the chance to hear other viewpoints in the preceding days. Mr Bidwell did not hear the interview RNZ referred to as providing an opposing view (and was unable to find it online), and did not hear the other side of the argument.
• In his view, it would be prudent in future for RNZ to present competing viewpoints on euthanasia within segments, rather than disparately with several days’ break – particularly in 2020 when this debate is to be formalised in a referendum.

The broadcaster’s response

[4]  RNZ did not uphold the complaint under the balance standard, noting:

• Clearly the balance standard is designed to allow for competing views to be aired over the period of current interest and not only within one broadcast.
• Two days before, a doctor’s comments opposing the Bill were reported on RNZ.
• The audience could reasonably be expected to be aware of a range of views given the debate that occurred in New Zealand right through 2019, RNZ’s extensive coverage of the issue and also extensive coverage in other media.
• It was not unreasonable to interview the sponsor of such a piece of legislation prior to its final reading in Parliament.
• The interviewer did pose a number of ‘devil's advocate’ questions and statements for Mr Seymour’s response:
  • She outlined the Green Party's opposition to an aspect of the Bill, which Mr Seymour conceded was put forward not just by the Green Party but by a number of people opposing that particular aspect of the Bill.
  • Mention was made of a planned demonstration in opposition to the Bill, which was being held in the Parliament grounds later on the day of the interview.
  • The possibility of the legislation being amended in the future (something which was opposed by a number of the Bill’s opponents) was also raised by the interviewer.

The relevant standard

[5]   The balance standard (Standard 8) 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 objective of the balance standard is to enable the audience to arrive at an informed and reasoned opinion (which is important to the operation of an open and democratic society).¹

Our findings

Freedom of expression and public interest

[6]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[7]  Ms Hill’s interview with Mr Seymour, as the sponsor of a Bill due to have its final reading in Parliament later on the day of the broadcast, was clearly in the public interest. Additionally, the Bill related to a sensitive and divisive issue. The media plays a vital role in encouraging open and informed discourse about such issues, including by exercising editorial discretion to select interviewees or spokespeople to give particular perspectives.

[8]  Given the level of value and public interest in the broadcast, in order for us to interfere and find a breach of broadcasting standards, we would need to find a correspondingly high level of actual or potential harm caused by the broadcast complained about.

[9]  For the reasons outlined below, we have not found any such harm in this case that warrants regulatory intervention or upholding the complaint.

Application of the Balance standard

[10]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to ‘news, current affairs and factual programmes’ which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.²

[11]  The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.³ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁴

[12]  It is clear that Morning Report is a news and current affairs programme for the purposes of the standard. The Authority has previously found that the euthanasia debate and related proposed amendments to legislation (including throughout the parliamentary process for the End of Life Choice Bill) amount to a controversial issue of public importance.⁵ The focus of this particular interview was Mr Seymour’s views on the End of Life Choice Bill prior to its third and final reading in Parliament. Therefore we are satisfied that this issue was ‘discussed’ within the programme, and that the balance standard applied to this broadcast.

[13]  The next question is whether the broadcaster made reasonable efforts in the circumstances to allow significant viewpoints on the issue to be presented, within the programme and/or within the period of current interest. In making this assessment, the following factors are relevant:⁶

• the programme’s introduction and the way in which the programme was presented
• the type of programme
• the nature of the issue and of the discussion
• whether the programme approached the topic from a particular perspective
• whether the programme acknowledged the existence of other views
• whether the audience could reasonably be expected to be aware of other views, including in other media sources.

Balance within the period of current interest

[14]  The complainant’s main concern as we see it, is that he and other RNZ listeners could not reasonably be expected to have heard other viewpoints on the issue in the days surrounding this broadcast – therefore it was vital that RNZ presented an opposing perspective within this segment with Mr Seymour, particularly given its proximity to the final reading of the Bill.

[15]  However, the wording of the balance standard, which is taken from the Broadcasting Act 1989, is clear that a broadcaster should make reasonable efforts to present significant perspectives ‘either in the same programme or in other programmes within the period of current interest’. This means that balance is allowed to be achieved over time, and broadcasters are not required to present every perspective on a controversial issue within each and every broadcast discussing that issue. Placing such a requirement on broadcasters would itself unreasonably limit their exercise of freedom of expression and editorial control, and in particular their freedom to present programmes or interviews from a particular perspective.

[16]  With this in mind, we considered whether RNZ presented views countering Mr Seymour’s perspective within the period of current interest for issues surrounding the End of Life Choice Bill. As noted by both Mr Seymour during the interview and by the broadcaster in its response to the complaint, the period of current interest for the debate about euthanasia has been ongoing for many years, and for the Bill, more than two years, since it was introduced in June 2017. In particular, interest was heightened during the course of 2019 when the Bill passed its second and (following this broadcast) third readings in Parliament (June and November 2019).

[17]  Like the complainant, we were not able to locate the doctor’s comments relied on by RNZ as providing balance two days before this Morning Report broadcast (although we did find a media statement via another outlet, issued several days before the Morning Report item⁷). Nevertheless, we were satisfied upon reviewing RNZ’s other coverage of the Bill that it made reasonable efforts to present alternative viewpoints in the months preceding the second and third readings.⁸

[18]  In these circumstances it was reasonable to expect that, by the time of this broadcast, the audience would be broadly aware of the main viewpoints for and against the Bill, due to extensive coverage by both RNZ and other media outlets. A wide range of information was available and easily accessible to the public. We were therefore satisfied that audiences would not have been left uninformed or unable to take action to express their own views prior to the final reading of the Bill (as submitted by the complainant), as a result of this Morning Report item.

Balance within the item

[19]  We also considered Mr Bidwell’s concerns that Mr Seymour appeared to be given a ‘free licence’ in the interview to give his views without any challenge from Ms Hill and that the overarching impression created was that ‘the Bill being passed is a fait accompli’.

[20]  With reference to the factors listed above (paragraph [13]), in addition to balance provided within the period of current interest, we were satisfied the broadcast itself met the requirements of the balance standard, taking into account:

• The introduction to the item transparently presented it as an interview from the perspective of Mr Seymour as the sponsor of the Bill.
• The Codebook and previous Authority decisions recognise that, in this context, acknowledging the existence of other views may be sufficient to meet the requirements of the standard (rather than laying out every perspective on the issue being discussed). Additionally, interviewers may employ techniques such as ‘devil’s advocate’ questioning to provide balance.⁹
• In this case, both Ms Hill and Mr Seymour acknowledged the existence of other views within the item. We also considered Ms Hill did challenge Mr Seymour to some extent. For example the item included the following remarks:
  • ‘I’m quietly confident [that the Bill will pass]… however there’s still another 12 hours or so to go and we’ll be working for every single vote right up to the final bell.’ (Mr Seymour)
  • ‘As will your opponents working against you, I imagine.’ (Ms Hill) ‘Yes that’s how it works and we take no one for granted…’ (Mr Seymour)
  • ‘And there’ll be a protest on Parliament’s lawn ahead of the vote, I see, today.’ (Ms Hill)
  • ‘Yes that’s right, there’s been several, and of course people have every right to express those views. But I have to say that the arguments that are being made are not new. We’ve had two years of this now – in fact really New Zealand’s had 20 years since [an earlier] Bill back in 1995. So you know we’ve had the arguments. I don’t think anyone will ever be able to say that Parliament didn’t properly scrutinise this Bill. It’s been nearly two years since the parliamentary process started and over that time we’ve kicked around every conceivable argument for and against the Bill and at this point it appears the majority are still coming out on side of it.’ (Mr Seymour)
  • ‘Did you deliberately put a Bill up that was remarkably open, relying on MPs to close what they regarded as loopholes to make them feel like they could then pass it?’ (Ms Hill)
  • ‘MPs said they couldn’t accept that [the definition originally used in the Bill]…’ (Mr Seymour)
  • ‘Well of course the Green Party in the main said that that would affect people with disabilities, and that was the reason why that [the original definition] was taken out, right? You accept that?’ (Ms Hill)
  • ‘…we did take that out. I might add that it wasn’t only Green MPs that made that objection. So once I saw that the Bill couldn’t pass with that original Canadian definition we narrowed it…’ (Mr Seymour)
  • ‘Less than six months left to live, then. Is that a difficult barrier in your opinion?’ (Ms Hill)
  • ‘So you are sanguine about the restrictions in this Bill because you think it will be amended in due course? I’m not going to use the words “slippery slope” or “thin end of the wedge”, but you know what I mean.’ (Ms Hill)
  • ‘So it’s important – even if it [the Bill’s third reading] fails – it’s important that it’s gone through all the process?’ (Hill)

[21]  For these reasons, we do not uphold the complaint under the balance standard.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Judge Bill Hastings

Chair
26 May 2020

Appendix

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

1  Daniel Bidwell’s formal complaint – undated

2  RNZ’s decision on the complaint – 11 December 2019

3  Mr Bidwell’s referral to the Authority – 17 January 2020

4  RNZ’s response to the referral – 3 February 2020

5  Mr Bidwell’s confirmation he had no further comments – 16 April 2020

¹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
² Guideline 8a
³ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁴ As above
⁵ See for example: Right to Life and MediaWorks TV Ltd, Decision No. 2018-033 at [8]
⁶ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁷ ‘Doctors’ letter opposing euthanasia gets 1,500th signature’, Scoop, 10 November 2019
⁸ For example: ‘Plans to combat misinformation in election-year referendum debates’ (31 October 2019); ‘MPs back euthanasia bill revisions: ‘This is to alleviate concerns’ - David Seymour’ (22 August 2019); ‘Doctors sign letter against 'assisted suicide' Bill’ (23 June 2019, prior to the second reading of the Bill); ‘Lawyers, academics urge scrutiny over euthanasia bill 'loopholes'’ (15 April 2019)
⁹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18. Also see, for example, Garrett and Radio New Zealand Ltd, Decision No. 2017-079 at [15]