BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

An application for leave to appeal this decision was refused by the High Court: CIV 2013-485-1234 [2013] NZHC 1386 PDF59.65 KB

Complaints under section 8(1B)(b)(i) of the Broadcasting Act 1989
Close Up – item reported on controversy around the establishment of an abortion clinic in Invercargill, in light of strong opposition from ‘pro-life’ group Southlanders For Life – included interviews with a ‘pro-life’ representative and a ‘pro-choice’ representative – allegedly in breach of standards relating to accuracy, fairness, and discrimination and denigration

Findings
Standard 6 (fairness) – item did not suggest that all ‘pro-life’ groups, including Southlanders For Life, were violent – perspective of Southlanders For Life, including its position on violence, was fairly reflected in the item – Southlanders For Life treated fairly – ‘pro-life’ representative Dr Norman McLean treated impartially and fairly – not upheld

Standard 5 (accuracy) – item did not create misleading impression that members of all ‘pro-life’ groups, including Southlanders For Life, were violent – reporter’s general statement about violence committed by ‘pro-life’ group in America was accurate – not necessary to define abortion or to include images of aborted babies – item was not inaccurate and would not have misled viewers – not upheld

Standard 7 (discrimination and denigration) – item did not encourage discrimination against, or the denigration of, any section of the community – not upheld

This headnote does not form part of the decision.

---

Introduction

[1]  An item on Close Up reported on controversy surrounding the establishment of an abortion clinic in Invercargill. It was introduced as follows:

The bitter debate over abortion may have reached its peak in the ’70s but it’s an issue that’s never completely gone away. The latest battle line is in Invercargill. The Southland District Health Board is under fire from the ‘pro-life’ lobby for the shroud of secrecy around the setting up of a clinic in the city. The ‘pro-choice’ lobby claim opponents are using bullying and intimidation to derail the service. We’ll hear both sides shortly.

[2]  The item was broadcast on TV One on 16 October 2012.

[3]  John Collier and John Fong made formal complaints to Television New Zealand Ltd, the broadcaster, alleging that the item breached broadcasting standards. Mr Collier argued that the item was biased, unfair, inaccurate, misleading and discriminatory. Mr Fong argued that the item was inaccurate.

[4]  The issue is whether the item breached standards relating to accuracy (Standard 5), fairness (Standard 6), and discrimination and denigration (Standard 7) as set out in the Free-to-Air Television Code of Broadcasting practice.

[5]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the programme and freedom of expression

[6]  Close Up was a long-running current affairs show reporting on topical local issues, ranging from daily news stories to human interest pieces. The item subject to complaint reported on controversy surrounding the establishment of an abortion clinic in Invercargill, in light of strong opposition, including protest from the ‘pro-life’ group Southlanders For Life. The reporter stated:

In July, 400 people protested in Southland to stop an abortion clinic setting up shop. The clinic has opened in secret at Invercargill’s hospital. Now the protest group Southlanders For Life want to know who’s working there so they can be named and shamed.

[7]  To put the controversy in context, the story made reference to what was described in the introduction as the “bitter debate over abortion”, reflecting that abortion is a highly emotive issue that has polarised religious and political perspectives throughout recent history. The reporter explained that, “The stakes can be high. In America, abortion staff have been attacked and killed by ‘pro-lifers’. In 1989, a clinic in Christchurch was set alight. Another one in Auckland was threatened with fire-bombing on the same day, the device hidden in a child’s toy”. It is this statement, along with footage of violent protest that accompanied it, which are central to these complaints.

[8]  We recognise that the item carried a high level of public interest, and was valuable in terms of freedom of expression. This value must be balanced against the potential harm that is likely to result from allowing the unfettered dissemination of the speech.¹ We may only limit the right to freedom of expression to an extent that is reasonable, and with proper justification.

[9]  Here, the alleged harm, in terms of the underlying objectives of the relevant broadcasting standards, was said to derive from the item’s alleged association of the members of ‘pro-life’ groups, including Southlanders For Life, with acts of violence. The complainants were concerned that the item was biased and failed to acknowledge that the ‘pro-choice’ movement committed violence against unborn children. The very nature of the complaints, in our view, demonstrates that abortion is a highly charged issue, arousing conflicting, and often extreme, viewpoints.

Was any person or organisation taking part or referred to in the broadcast treated unfairly?

[10]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[11]  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

[12]  The complainants’ primary concern was that by referring to violence committed by groups in America, Christchurch and Auckland, the item inferred that members of all ‘pro-life’ groups were willing to engage in that type of behaviour. Mr Collier argued that this was unfair to ‘pro-life’ groups in general, and to Southlanders For Life specifically. In addition, Mr Collier considered that he was treated unfairly, stating, “I am a ‘pro-life’ catholic who happens to belong to a ‘pro-life’ organisation. Close Up clearly has identified me as being someone who could act violently…”

[13]  TVNZ responded that no reference was made to the instigators of the violent acts, and there was no suggestion that Southlanders For Life had engaged in that type of behaviour. The cases were used as examples to illustrate that abortion is a highly emotive issue, it said.

[14]  The fairness standard only applies to individuals and organisations “taking part” or “referred to”. Mr Collier did not “take part” and was not “referred to” in the item and so the standard does not apply to him. Nor does the standard apply to ‘pro-life’ groups in general, as it only applies to specific organisations.

[15]  The question therefore is whether Southlanders For Life was treated unfairly, given it was referred to in the item, and took part through its representative Dr Norman McLean (see paragraph [18] below). We have also considered whether Dr McLean was treated unfairly, as an individual.

[16]  We agree with TVNZ that the references to events in America, and historical cases in New Zealand, involving violence by ‘pro-life’ protestors, were used to demonstrate that abortion is a highly emotive issue. There was no suggestion that all ‘pro-life’ groups were violent, or that members of Southlanders For Life had engaged in, or were willing to engage in, such behaviour. In fact, all verbal references to this group were accompanied by footage of people holding signs and engaging in passive, non-violent protest.

[17]  Further, the item contained comments from the Deputy Prime Minister, Bill English, who was described as a “‘pro-life’ Catholic”, and defended the group and their means of protest. Having spoken with the group, Mr English commented:

• “I wouldn’t expect that they [the protestors] would do anything that would break the law or hassle people going about their lawful duties.”
• “I am sure there will be some level of acceptable protest where the group in Southland can express their, what I know are their strong views, about the services.”

[18]  The item contained interviews with Dr McLean representing Southlanders For Life, and Alison McCulloch from the Abortion Law Reform Association of New Zealand. They expressed opposing viewpoints on abortion. The presenter introduced the discussion by asking, “So what is an acceptable level of protest?” Dr McLean responded:

…Clearly we live in a liberal democracy and we are privileged to be able to protest… Southlanders For life are a group of grassroots people, concerned citizens, and are totally peaceful, and we are committed as a group to peaceful protest. We have been commended by the chairman of the Southern Board for our respectful behaviour, and we intend to continue in that manner.

[19]  The perspective of Southlanders For Life, including its position on violence, was fairly reflected in the item. The presenter was impartial and even-handed in his questioning of Dr McLean and Ms McCulloch, allowing both sides to express their perspectives, which they did in an articulate and informative manner. In our view, this was a particularly fair and well balanced story.

[20]  We are satisfied that Southlanders For Life and Dr McLean were treated fairly, and we decline to uphold this part of the complaint.

Was the item inaccurate or misleading?

[21]  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

[22]  The complainants reiterated their arguments that the item inferred members of all ‘pro-life’ groups were violent. In addition, Mr Collier disputed the accuracy of the reporter’s statement, “In America, abortion staff have been attacked and killed by ‘pro-lifers’”, and asked TVNZ to source the information. Mr Fong said that the item did not define what abortion was or mention that “able-bodied adults [were] killing innocent, defenceless and voiceless babies”. He considered that the item should have included images of aborted babies and explained the concerns of ‘pro-lifers’ to ensure balance.

[23]  For the reasons expressed under fairness, we find that the item did not create the impression that members of all ‘pro-life’ groups, including Southlanders For Life, were violent. The reporter’s general comment that in America abortion staff have been attacked and killed by ‘pro-lifers’ was accurate; there have been many instances of violence directed towards abortion providers in America, as any basic internet search demonstrates.

[24]  In regards to Mr Fong’s argument, it was reasonable to expect that Close Up’s audience would know what abortion is. Broadcasting images of aborted babies was not necessary, nor was giving a detailed description of what abortion entails.

[25]  Mr Collier also argued that it was “blatantly inaccurate” for the reporter to say the reason Southlanders For Life wanted the names of staff at the Invercargill clinic was to “name and shame” them.

[26]  TVNZ contended that the phrase “name and shame” came from Southlanders For Life when they told Fairfax Media on 14 October that the group was “vowing to step up protests outside the clinic, and to name and shame medical staff”.⁴ In any event, the broadcaster said that while the group may not choose for their position to be categorised as “naming and shaming”, it was reasonable to infer that this was what they wanted the list for.

[27]  We do not think that this aspect of the item was misleading because this point was put directly to Dr McLean during the studio discussion with the presenter, and he was given a sufficient opportunity to explain why the group wanted the names of staff. During the interview, Dr McLean stated:

We have made no decision what we will do with the information, with the names… but we will consider the options… we believe that these people are employed within the public health service, they are paid by taxpayer money, and in every other area of the health service the board would be pleased, if not proud, to inform the public of who works within the public health service.

[28]  Dr McLean also said, “If they [staff members] are fearful, that is unfortunately their situation. We do not intend to make them fearful…. We want to give the public and patients in particular the right to know who is providing their care, and this is a consumer right…”

[29]  Overall, we find that the item was accurate and would not have misled viewers. The item carried a high level of public interest, and the broadcaster’s right to freedom of expression was not outweighed by the harm alleged. Accordingly, we decline to uphold the accuracy complaints.

Did the item encourage discrimination against or the denigration of any section of the community?

[30]  The discrimination and denigration standard (Standard 7) protects against broadcasts which encourage the denigration of, or discrimination against, a section of the community.

[31]  Mr Collier argued that the reporter’s comment that Bill English was a “‘pro-life’ Catholic” was a “cheap shot” at Christianity. He said that Catholics were used as a “whipping boy” and labelled as being “possible violent ‘pro-lifers’” which was discriminatory. In his referral, Mr Collier said that the item portrayed ‘pro-lifers’, including Southlanders For Life, as having inherently negative characteristics.

[32]  TVNZ responded that the item would not lead to discrimination against, or the denigration of, ‘pro-life’ groups including Southlanders For Life.

[33]  The very brief reference to Bill English as a “‘pro-life’ Catholic” was innocuous. The comment highlighted the political dimension to the abortion debate, while also highlighting the fundamental ethical dimension, based on religion. The comment simply reflected that some Christians hold anti-abortion beliefs, and no judgment was made about the validity of those beliefs. As already noted, there was no suggestion that all ‘pro-lifers’ were violent.

[34]  We are satisfied that the item did not contain anything that encouraged discrimination against, or the denigration of, Christians, ‘pro-life’ groups, or Southlanders For Life, as sections of the community, and we therefore decline to uphold this part of the complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
2 April 2013

Appendix

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

1           John Collier’s formal complaint – 13 November 2012

2          TVNZ’s response to the complaint – 11 December 2012

3          Mr Collier’s referral to the Authority – 14 January 2013

4          TVNZ’s response to the Authority – 22 February 2013

1           John Fong’s formal complaint – 1 November 2012

2          TVNZ’s response to the complaint – 29 November 2012

3          Mr Fong’s referral to the Authority – 23 December 2012

4          TVNZ’s response to the Authority – 22 February 2013

¹See sections 5 and 14 of the New Zealand Bill of Rights Act 1990.

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

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

⁴"Abortion clinic opens in secrecy to protect staff” (www.stuff.co.nz, 14 October 2012)