BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
One News – item about HIV positive man facing charges of sexual offending – HIV status irrelevant to criminal allegations – broadcaster did not respect principles of law - unbalanced – impartial – unfair – broadcaster not mindful of effect on children – item caused unnecessary panic, alarm and distress

Findings
Standard G5 – standard concerned with maintenance of law and order – possible breach of law beyond Authority’s jurisdiction – no uphold

Standard G16 – broadcast did not cause "unnecessary" alarm – no uphold

This headnote does not form part of the decision.

Summary

An item on One News broadcast on TV One at 6.00pm on 23 November 2000 described the court appearance of a North Shore teacher who faced 20 charges in relation to sex offences allegedly committed against six boys. The news item described the man, whose name had been suppressed, as having tested HIV positive.

Julia Durkin complained to Television New Zealand Ltd, the broadcaster, that One News had shown a "blatant homophobic and prejudicial attitude" by reporting the man’s HIV status, which she said was irrelevant to the allegations against him.

Ms Durkin contended TVNZ had breached broadcasting standards requiring it: to respect principles of law; to show balance, impartiality and fairness; to be mindful of the item’s effect on children; and, not to present news so as to cause unnecessary panic, alarm or distress.

TVNZ declined to uphold the complaint. It said the man’s HIV status was central to the allegations against him, and the public had the right to know.

Dissatisfied with TVNZ’s decision, Ms Durkin referred aspects of the complaint to the Broadcasting Standards Authority under section 8(1)(a) of the Broadcasting Act 1989.

For the reasons given below, the Authority declines to uphold the complaint.

Decision

The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is listed in the Appendix. The Authority determines this complaint without a formal hearing.

An item on One News broadcast on TV One at 6.00pm on 23 November 2000 described the court appearance of a North Shore teacher who faced 20 charges in relation to sex offences allegedly committed against six boys. The news item described the man, whose name had been suppressed, as having tested HIV positive.

Julia Durkin complained to Television New Zealand Ltd, the broadcaster, that One News had shown a "blatant homophobic and prejudicial attitude" by reporting the man’s HIV status. She said reporting his HIV status was "indicative of the sleaze-mongering level" One News had "reduced itself to." She asked:

Can you please advise what anyone’s health status has to do with allegations of criminal offending?

Ms Durkin said HIV positive people had been stigmatised for many years. The broadcaster had shown an "irresponsible judgmental attitude" by linking the man’s HIV status to his alleged criminal offending, the inference being that people who were HIV positive were likely to be criminal, sexually deviant and therefore inherently inferior, she said.

Ms Durkin complained that the item breached standards G5, G6, G12 and G16 of the Television Code of Broadcasting Practice.

Standards G5, G6 and G12 require broadcasters:

G5  To respect the principles of law which sustain our society.

G6  To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

G12  To be mindful of the effect any programme may have on children during their normally accepted viewing times.

The other standard reads:

G16  News, current affairs and documentaries should not be presented in such a way as to cause unnecessary panic, alarm or distress.

Ms Durkin said standard G5 put the onus on TVNZ to respect the principles of law which sustain society. She believed disclosing the man’s HIV status breached the Privacy Act 1993 and the New Zealand Bill of Rights Act 1990. According to the complainant, under the Privacy Act TVNZ was not authorised to disclose a person’s health status without their consent. Under the Bill of Rights Act, TVNZ had threatened the man’s right in section 25(a) to a fair trial by "unduly influencing the opinions of future jurors," she said.

Under standard G6, Ms Durkin said it was not impartial, fair or balanced to report the man’s HIV status without any explanation as to why it was being disclosed. She said:

The report does not mention any anal penetration, blood, semen or possible cause of transmission or infection or in fact that any of the alleged victims are being tested. It is wholly unsubstantiated innuendo and scare-mongering founded in prejudice and bias.

She said it was "simply impossible" for TVNZ to be impartial and unbiased given that it had hired lawyers to attempt to have the suppression order on the man’s name lifted.

Ms Durkin said the report also breached standard G12 because any child watching the item "could now feel a negative opinion of a person who has HIV." Linking the man’s HIV status to his alleged sexual offending "in a manner unrelated to the charges" could create among children a distrust of teachers, she said.

In relation to standard G16, Ms Durkin said she believed the item would have caused "unnecessary panic, alarm or distress" by disclosing the man’s HIV status in an "unrelated issue of criminal allegations." She said:

I believe it will have caused any person with HIV that has exercised their right to privacy about their own health affairs to panic, feel alarm and distress about a third party disclosing sensitive health information about them without consent in any traffic, drugs or unrelated criminal allegations they may become involved in.

Ms Durkin said audiences should be informed about the issues in a criminal case in a "mature, responsible manner." Instead, she said:

[A]ll we ever get is a spoon fed regurgitation of police leaked information that is biased, lacks integrity and shows the moral immaturity of the news team and its managers in dealing with stories of human nature than happen all the time.

She asked TVNZ to inform her as to why One News had decided to disclose that the man was HIV positive.

TVNZ assessed the complaint under the standards nominated by the complainant.

Under standard G5, the broadcaster noted that Ms Durkin had made reference to the Privacy Act and the Bill of Rights Act. TVNZ pointed out that the media, when engaged in "news activities", was exempt from the provisions of the Privacy Act. However, it noted, the media was subject to the Broadcasting Standards Authority’s privacy principles developed under the Broadcasting Act 1989.

TVNZ pointed to Privacy Principle (vi) which reads:

Discussing the matter in the "public interest", defined as of legitimate concern or interest to the public, is a defence to an individual’s claim for privacy.

In the broadcaster’s view, there was a "clear and demonstrable" public interest in disclosing the man’s HIV status as it "added a whole new and relevant dimension to the charges laid against him." TVNZ said:

It was the [Complaints] Committee’s opinion that in any story containing allegations of sexual misconduct the presence in the suspected abuser of a serious contagious disease would be a relevant fact that should be made known as a matter of public interest. It is not homophobic to take that position.

With regard to the complainant’s contention that TVNZ had breached the Bill of Rights Act, TVNZ pointed to section 14 of that Act which provides for freedom of expression and freedom of information. It said it considered that section "fundamental" when dealing with complaints about news items. In its view, the "public’s right to know" was the critical factor in disclosing the man’s HIV status.

The broadcaster pointed to a subsequent newspaper story in which Justice Williams of the High Court had been reported saying that the man’s HIV status was likely to be legally irrelevant. It said:

While that may be so in a legal sense, the [Complaints] Committee believed that in the "court of public opinion" that matter was far from irrelevant. It noted that TVNZ is not alone in taking this stance. The story which reported the view of Mr Justice Williams was headlined School Glad HIV Teacher Named.

The broadcaster declined to uphold the complaint that standard G5 was breached.

Turning to standard G6, the broadcaster noted that the complainant’s contention that the item was not impartial, fair or balanced seemed to be based on the lack of explanation provided as to why his HIV status had been disclosed. In TVNZ’s view, the reason it had been disclosed would have been clear to the viewing audience. It said:

He was facing sex charges. The sex charges involved schoolboys aged 13 to 15 and included one count of sexual violation which, viewers were told, involved oral sex.

It declined to uphold a breach of standard G6.

Under standard G12, TVNZ said it did not accept Ms Durkin’s view that the item encouraged children to adopt a negative attitude towards people who were HIV positive. The broadcaster said:

Arguably it was valuable in informing children of the seriousness of HIV, as it would have been had the disease been tuberculosis, for example. Knowing that someone has a serious contagious disease does not mean that one develops a "negative feeling" for that person.

In relation to Ms Durkin’s contention that the item may have encouraged among children a distrust of teachers, the broadcaster noted that one of TVNZ’s reasons for seeking to have the suppression order on the man’s name lifted was that it would then lift suspicion off all other male teachers on the North Shore.

Accordingly, it declined to uphold a breach of standard G12.

When it looked at Ms Durkin’s claim that the report would have created "unnecessary panic, alarm or distress" among persons who were HIV positive, TVNZ said it could not understand how the complainant could characterise the man’s HIV status as unrelated to the criminal allegations. It said:

It seemed to the [Complaints] Committee that, given the charges, his health status was a matter central to the allegations and something the public was entitled to know.

If anyone was to be alarmed or distressed about this report it would surely be the alleged victims and their families?

As such, it judged standard G16 not to have been infringed.

TVNZ noted the complainant’s suggestion that the man’s HIV status had been a "regurgitation of police leaked information". It said it had investigated the allegation and was satisfied that One News had established the man’s medical condition through its own enquiries.

Finally, TVNZ said it took the view that, in this particular case, the man’s HIV status was of "overriding relevance and public interest."

In her referral to the Authority, Ms Durkin said she withdrew the aspects of her complaint relating to breaches of standards G6 and G12. She said she wished to focus on standards G5 and G16.

In relation to standard G5, Ms Durkin asked the Authority to note the comments of Justice Williams who had dealt with the issue of the man’s name suppression in the High Court. According to a newspaper article, Justice Williams had noted that the man’s HIV status was likely to be irrelevant and inadmissible at trial. As a result of One News reporting the man’s HIV status, Ms Durkin said, "any jurors on this case will have knowledge of evidence that they would not otherwise have, prejudicial evidence."

She maintained that disclosing the man’s health status breached standard G5.

Turning to standard G16, Ms Durkin said if TVNZ had read Justice Williams’ findings it would not have needed to ask her how she could characterise the man’s HIV status as "unrelated" to the criminal allegations. Given that a High Court judge had stated to the contrary, for TVNZ to claim the man’s health status was "a matter central to the allegations" and that the "public was entitled to know" showed TVNZ had a negative opinion of HIV positive people, she said.

According to Ms Durkin, TVNZ seemed to think that because the man’s HIV status "spice[d]" up the story, it then became something the public was entitled to know.

Finally, she argued that TVNZ had not explained why the man’s HIV status had been disclosed, other than to assume that it was central to the allegations.

In its response to the Authority, TVNZ pointed out that Justice Williams’ remarks to the effect that the man’s HIV status was likely to be irrelevant and inadmissible at trial, had been made in the context of a decision refusing to overturn a district court judge’s decision to lift name suppression.

TVNZ reiterated:

As we noted in our letter to Ms Durkin it is our view that what might be relevant in a court trial and what might be relevant in the context of the public interest and the public’s right to know can be quite different.

The Authority’s Findings

Ms Durkin has asked the Authority to review the aspects of her complaint in which she argued that the One News item breached standards G5 and G16 of the Television Code of Broadcasting Practice.

The Authority deals first with standard G5, which requires broadcasters to respect the principles of law which sustain our society. On previous occasions when it has been required to consider alleged breaches of standard G5, the Authority has taken the view that the standard is not designed to require broadcasters to ensure that all programmes comply with specific legislation or settled common law. Bearing in mind that it is in no position to adjudicate on all possible breaches of law as they may occur in broadcasts, the Authority has read the requirement in standard G5 subject to section 4(1)(b) of the Broadcasting Act 1989. That section reads:

4(1) Every broadcaster is responsible for maintaining in its programmes and their presentation, standards which are consistent with –

(b) The maintenance of law and order

In interpreting standard G5, the Authority’s emphasis has been on the need for broadcasters to respect the principles of law as they relate to the maintenance of law and order. For example, broadcasters must not actively encourage viewers to break the law. Beyond deciding whether particular broadcasts have breached broadcasting standards, the Authority is not authorised to determine questions of law.

For the reasons given, the Authority declines to uphold the complaint.

In this instance, the complainant considered that disclosure of the man’s HIV status could prejudice his trial. In light of Justice Williams’ reported comments concerning whether the man’s health status is likely to be relevant or admissible at trial, it may be arguable that disclosure of his HIV status may have been in contempt of court. However, it is not for the Authority to comment on the relative merits of such an argument. Suffice to say, whether there has been a contempt of court is not within the Authority’s jurisdiction. Accordingly, it declines to uphold this aspect of the complaint, the argument raised by the complainant not being an issue of broadcasting standards.

Turning to consider the other aspect of the complaint, standard G16 requires that news must not be presented in such a way as to cause unnecessary panic, alarm or distress. Ms Durkin contended that disclosure of the man’s health status would have caused unnecessary panic, alarm or distress to people who are HIV positive. In its defence, TVNZ maintained that information about the man’s health status was central to the allegations against him.

The Authority accepts that disclosing the man’s HIV status had the potential to alarm some people. However, the Authority also accepts that the community is steadily becoming better informed about the issues relating to HIV and the limited ways in which it can be spread. The Authority does not accept that the broadcast included information which would have caused "unnecessary" alarm, as required by the standard. Therefore it declines to uphold that standard G16 was breached.

Signed for and on behalf of the Authority

Judy McGregor
Member
8 March 2001

Appendix

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

1. Julia Durkin’s Complaint to Television New Zealand Ltd – 25 November 2000
2. TVNZ’s Response to the Formal Complaint – 12 December 2000
3. Ms Durkin’s Referral to the Broadcasting Standards Authority – 14 December 2000 (plus attachments)
4. TVNZ’s Response to the Authority – 15 January 2001
5. Ms Durkin’s Final Comment – 22 January 2001