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 about an interview on RNZ’s Sunday Morning programme with the author of the book, The Final Choice, in the lead-up to the binding referendum on the End of Life Choice Act. The End-of-Life Choice Society complained that the interview was unbalanced and inaccurate, as it presented the book as ‘the truth’, and did not question the author’s independence or her alleged religious affiliations. The Authority noted its role is limited to applying the relevant broadcasting standards and guidelines, and determining whether any harm was caused which outweighed the right to freedom of expression; it is not the Authority’s role to determine whether the author is ‘independent’, or to determine her personal view on the topic. With respect to balance, the Authority was satisfied that the End of Life Choice Act and related issues were widely covered by RNZ within the period of current interest in those topics, including views in support of the End of Life Choice Act. The interviewer and the author also acknowledged the existence of other views within the item, which was adequate in the context. Considering whether the item was inaccurate or misleading in the manner alleged, the Authority noted the interviewer questioned the author about the weighting of views in the book (17:4 opposed to assisted dying) and whether she approached it with any particular position of her own. Overall, the Authority did not find actual or potential harm at a level that justified regulatory intervention or restricting freedom of expression.

Not Upheld: Balance, Accuracy

Summary of the broadcast and the complaint

[1]  During RNZ’s Sunday Morning programme on 28 June 2020, Colin Peacock interviewed Caralise Trayes, the author of the recently released book, The Final Choice: End of Life Suffering: Is Assisted Dying the Answer? Mr Peacock opened the interview as follows:

First, we’re going to look at an issue that we may not want to spend a lot of time thinking about, but which everyone who’s going to be voting in September will have to ponder, and that’s assisted dying. The End of Life Choice Act is the subject of a referendum that’s running alongside the general election, and it’s already been a hotly-debated issue as it made its way through Parliament. Well journalist Caralise Trayes has had a really long look at this in a brand new book called, The Final Choice. She’s with me now…

I just would like to start with you [Caralise], it’s such a big topic, we’ve got so much to talk about, but I am intrigued, what was it that fired your interest in this topic? Because you’ve talked to an awful lot of people, the book is pretty comprehensive and would have taken an awful lot of time to put together.

[2]  The 19-minute interview covered Ms Trayes’ motivations for writing the book (for example she said, ‘I think it’s hard to find good information to make sure you can make a good choice, so it’s really to equip people to make good choices,’), what she found out about the issue of assisted dying from the experts and others she interviewed, and from looking at overseas comparisons.

[3]  The End-of-Life Choice Society NZ (EOLCS) complained that the interview breached the balance and accuracy standards of the Radio Code of Broadcasting Practice, as it was heavily biased towards those who oppose the End of Life Choice Act (as, it alleged, is Ms Trayes’ book), did not challenge Ms Trayes’ level of independence on the topic, and did not disclose Ms Trayes’ alleged religious affiliations, which support the opposition viewpoint on assisted dying.

[4]  The interview was broadcast at 11.35am on 28 June 2020 on RNZ National. In considering this complaint the members of the Authority have listened to a recording of the broadcast, and read the correspondence listed in the Appendix.

Freedom of expression and referendum-related broadcast content

[5]  As this complaint concerns content relating to the upcoming binding referendum (the referendum) on the End of Life Choice Act, which (along with the general election) continues to be a matter of topical importance, we have determined it with reference to our Election 2020 fast-track procedure.¹ While we have endeavoured to deal with it as swiftly as possible, it has taken us some time as a result of seeking further information and comments from the parties, and wanting to ensure we have given careful consideration to the issues raised. We thank the complainant and the broadcaster involved in this matter for their timely responses to our request for submissions.

[6]  The starting point for our determination is to recognise the importance of the right to freedom of expression, and specifically the importance of political speech and public discourse in the lead-up to both the general election and two referenda. This includes the right of broadcasters to impart ideas and information, and the public’s right to receive that information about election-related and referenda-related issues. This is an important right in a democratic society and is particularly important in the lead-up to a general election or referendum, when parties, candidates and interested groups are seeking to influence votes, and audiences are seeking information to enable them to make informed voting decisions.

[7]  We may only intervene and uphold a complaint where to do so would impose a limitation on the right which is reasonably justified in a free and democratic society.² In deciding whether any limitation on the right to freedom of expression is justified, we first consider the value and public interest in the broadcast. We then weigh that value against the level of actual or potential harm that might be caused by the broadcast, in this case mindful that voters rely on mainstream media outlets to provide reliable information and therefore they have the potential to influence voters’ views on the subject matter discussed. Nevertheless, given the importance of political speech and of enabling political and public discourse in the lead-up to a general election or referendum, we will generally only interfere to limit the exercise of that speech when we consider that the harm is great.

[8]  For the reasons we outline below, we have not found harm caused by the broadcast at a level that justifies regulatory intervention by the Authority or limitations on the right to freedom of expression in relation to the Sunday Morning broadcast.

Balance

[9]  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).³

The complaint

[10]  EOLCS considered the interview breached the balance standard for the following reasons:

• Mr Peacock ‘purported the interview to be a balanced examination of the issue in his introduction’.
• The author ‘repeatedly claimed that her book was balanced and said she had been “seeking the truth” as a professional journalist’. ‘In fact, a study of the book reveals that [the author] conducted 21 interviews in total, of which 17 were with people who admitted they were opposed to assisted dying. So, her “neutral” presentation showed a 17:4 bias against…’
• ‘The fact is all the people with “comprehensive” information on the issue were not interviewed and… people cannot make informed decisions from biased books or unbalanced radio items.’ The presenter never questioned the ability of people to make properly informed decisions with information biased to one side of the debate.
• The author quoted lawyers, doctors and overseas experts who are opposed to assisted dying, but did not quote any in favour.
• The author ‘said research showed 90% of people who requested an assisted death in Oregon in 2019 said their life was no longer enjoyable. But she omitted to say that after more than 20 years of legalised medical assistance to die in the state, there have been no cases of malpractice and it accounts for less than 0.5% of all deaths. Further, that 90% of those who are helped to die are receiving hospice care at the time of death.’
• The author ‘failed to say that more than 200 million people around the world, including in America, Canada, Europe and Australia, now live in jurisdictions that allow medical assistance to die for the terminally ill. And the presenter, one of RNZ’s most experienced broadcasters, never raised that question in an interview that we submit fell well short of the professional standards one expects from National Radio.’
• The author ‘said that 90% of people who made submissions on the Bill to Parliament’s Justice Select Committee were opposed. That is a fact but every MP and every serious commentator on the issue knows this is because church leaders urged their followers to make submissions and to avoid mentioning their religious beliefs. In line with this policy, the [author] did not refer to her [alleged] association with [a particular church]. …every experienced broadcaster would be aware of faith-based opposition to assisted dying and failing to raise it in the interview indicated readiness to ignore the need for balance on this issue.’

The broadcaster’s response

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

• The balance standard allows for balance to be presented over time, within the period of current interest. ‘The period of current interest in the topic of euthanasia and the recent law reform has been open for some time and will continue to the end of the current referendum being put to voters on [the general election polling day] and may well continue for some time into the future.’
• ‘…with the extensive debate that has occurred up to this point, in particular the passing of the proposed legislation by majority of the House of Representatives, our listeners would be well aware that a range of views exist on this particular topic.’
• ‘There is no requirement for “stopwatch journalism” in the broadcast of our programmes requiring an even amount of time on every occasion to be allocated to the differing sides to a debate.’

[12]  In its comments on the referral to the Authority, RNZ added:

• RNZ has covered a range of viewpoints on the topic of euthanasia in 2020, in ‘over 200 news bulletins and over 200 items in our news and current affairs programm[ing] such as Morning Report, Midday Report, Checkpoint, and our weekend programmes’. It provided a number of examples.
• During the interview the author stated she approached the book from the position of, ‘Why shouldn’t we be allowed to do this?’ – ‘a stance which could be viewed as a less than neutral position, favouring the proposed legislation’ (rather than opposing it).
• ‘It would seem logical that if 90% of those submitting to the Select Committee were opposed to the legislation, and the author drew significant resource from those submitting, that they would form a majority of those interviewed for the book. [But that does not mean] the programme of itself was unbalanced. The requirement of the broadcasting standard is that listeners should be made aware that other significant viewpoints exist. This is exactly what occurred in this interview, and is reflected in the body of the book that listeners to the interview and those who read the book would be aware of, i.e. that other viewpoints exist.’
• The author’s alleged religious beliefs are irrelevant to whether the requirements of the balance standard were met.

Our analysis and the outcome

[13]  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’.⁴

[14]  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’.⁵ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁶

Application of the balance standard to the broadcast

[15]  Sunday Morning is described on the RNZ website as ‘News, discussion, features and ideas until midday.’ We are satisfied that the subject matter of this particular interview, related to the referendum on the End of Life Choice Act, amounted to news and current affairs programming for the purposes of the balance standard.

[16]  The Authority has previously found that the euthanasia/assisted dying 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.⁷ While the format of this particular item was an interview with Ms Trayes about her perspective and experiences having researched and written her book, The Final Choice, the subject matter at the core of the interview was the same, namely the debate around assisted dying and what exactly people are being asked to vote on in the upcoming referendum on the End of Life Choice Act. Therefore, we are satisfied that a controversial issue of public importance was discussed within the programme, and that the balance standard applied to this broadcast.

[17]  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:⁸

• 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
• the platform on which the programme is broadcast.

[18]  As noted by the broadcaster, guideline 8b to the standard also states that ‘no set formula can be advanced for the allocation of time to interested parties on controversial issues of public importance’ – in other words, balance is not achieved by the ‘stopwatch’ and broadcasters are not required to give the same amount of time to each viewpoint in a debate.

Balance within the period of current interest

[19]  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. The Codebook commentary on applying the balance standard supports this, noting:⁹

A common sense approach should be taken in applying the standard. We acknowledge the practical reality that programmes cannot be perfectly balanced and this is not required. Consideration of this standard will reflect the present broadcasting environment in New Zealand and the increased flows of information which now pass over us on topics of all kinds, the proliferation of broadcast media, media which is consciously delivered from a political perspective, and a more discriminating viewing public. Decisions made under the balance standard will always be fact - and context - dependent to reflect this modern and diverse broadcasting world.

[20]  With this in mind, we considered whether RNZ presented views countering Ms Trayes’ perspective, and/or views in support of the End of Life Choice Act (which the complainant wished to be presented), within the period of current interest. The period of current interest for the debate about assisted dying and euthanasia has been ongoing for many years. Interest was heightened following the introduction of the End of Life Choice Bill in June 2017 and in particular during the course of 2019 when the Bill passed its second and third readings in Parliament, following which it was set down for a referendum, being the subject of the broadcast now before us.

[21]  We were satisfied upon reviewing RNZ’s coverage of the issue of assisted dying and the referendum that it made reasonable efforts to present alternative viewpoints both in broadcast programmes and in items on its website around the time of the Sunday Morning broadcast on 29 June 2020. For example:

• Sunday Morning, 19 July 2020: reported poll results suggesting 64% were in favour of the legislation.¹⁰
• RNZ News online, 29 June 2020: referred to University of Otago research (noted below) and indicated a majority of the public have supported some form of assisted dying over the years.¹¹
• Nine to Noon, 25 June 2020: explained the Act and featured interviews with University of Otago researchers about studies into how patients and doctors feel about the proposed process in the legislation.¹²
• Morning Report, 18 June 2020: reported that a High Court judge said there is nothing in the End of Life Choice Act that would require hospices to provide assisted-dying services if they did not want to.¹²
• Checkpoint, 16 June 2020: reported the views of a new ACT Party candidate who (like the ACT Party leader and sponsor of the End of Life Choice Act, David Seymour) supports the legislation.¹⁴

[22]  We found numerous other RNZ items online both in the months before this broadcast and in the months following, supporting RNZ’s submission that a ‘range of viewpoints has… been covered in over 200 news bulletins and over 200 items in our news and current affairs programm[ing]… this year’.

[23]  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 End of Life Choice Act, due to extensive coverage by both RNZ and other media outlets, including in the earlier period leading up to the corresponding Bill being passed and consequently set down for a referendum. A wide range of information was available and easily accessible to the public, reducing the likelihood of harm being caused by any single broadcast on this topic. We are satisfied that audiences would not have been left uninformed about the issue as a result of this Sunday Morning interview.

Balance within the programme

[24]  For completeness, and although we have found RNZ provided ample balancing material in other coverage which met the requirements of the standard, we have also considered whether balance was provided within the Sunday Morning programme. Having regard to the above factors (paragraph [17]), we found adequate balance was also achieved within the item, taking into account the nature of the interview. The factors supporting this view were:

• It was clear from the introduction to the item, as well as the framing of Mr Peacock’s questions, that the interview would be presented from the perspective of Ms Trayes having researched and written her book on issues relating to the upcoming End of Life Choice Act referendum, and that she would be promoting the book. In other words, the broadcast was primarily focussed on one individual’s opinions and experiences.
• 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.¹⁵
• In this case, both Mr Peacock and Ms Trayes acknowledged the existence of other views, including those in support of the Act, within the item. We also noted Mr Peacock did challenge Ms Trayes to an extent in relation to some aspects of her book, and/or the item, that the complainant was concerned about, including highlighting the weighting of views in the book (a majority opposed to the Act). For example, the item included the following:
  • ‘In the end, when you balance it up, there are more people in your book that are opposed to the Bill or the Act than in favour of it – was that by design / was that the balance that you were looking for? Or was that just the way it fell once you approached all these people and decided to include them in the final book?’ (Mr Peacock)
  • Responding to this and explaining how she selected people to include in the book, Ms Trayes said:
    …a lot of my contacts came from the Justice Select Committee submissions… I’ve got a mix of both sides but the reason why I’ve got more that have spoken against it is because I came with that simple argument, “why shouldn’t we be allowed this?” And 90% of those that submitted to the Justice Select Committee said that we shouldn’t be voting for this law, this law is not safe, it is not an appropriate solution to suffering. So I guess that is reflected somewhat in this book but I wanted to understand both sides…
  • ‘Did you, Caralise, approach it with any conviction of your own, either on the moral question of whether assisted dying is right or wrong, or whether the proposed law… is the right one?’ (Mr Peacock)
  • Mr Peacock questioned Ms Trayes about the ‘religious’ opposition in some depth, and Ms Trayes noted there are Catholics and Christians who sit ‘on both sides’.

[25]  For these reasons, and primarily the wide range of RNZ coverage of alternative significant viewpoints on the issue of assisted dying and the referendum, we do not uphold the complaint that the balance standard was breached. The inclusion of specific information regarding overseas legislation and the situation in Oregon, which the complainant wished to be presented (see paragraph [10]), was not required in the context of this particular item, which focussed on Ms Trayes’ perspective, in order to meet balance requirements in relation to the broader issue.

Accuracy

[26]  The accuracy standard (Standard 9) 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 purpose of this standard is to protect the public from being significantly misinformed.¹⁶

The complaint

[27]  EOLCS considered that, for the same reasons it outlined under the balance standard (paragraph [10]), the item was also ‘delinquent’ in relation to the accuracy standard.

The broadcaster’s response

[28]  RNZ found no breach of the accuracy standard, saying:

• The guidelines to the standard note that it is not intended to prevent the broadcast of material that is clearly distinguishable as analysis, comment or opinion, rather than statements of fact.
• It appears the complaint exclusively addresses the balance standard and it is not clear from the complaint which material points of fact in the interview EOLCS believes were inaccurate or misleading. While the complaint nominated some information that was not included in the interview, that does not mean the information that was included in the interview was inaccurate.
• Therefore the accuracy complaint could not be taken any further and was not upheld.

Our analysis and the outcome

[29]  As the broadcaster has noted, the complaint did not make specific arguments under the accuracy standard, rather relying on the same points made in relation to balance. Our understanding of the complainant’s primary concerns with respect to accuracy, is that the programme was misleading by presenting The Final Choice as an ‘independent’ assessment of the issue, when, in the complainant’s view: the book is clearly biased in favour of the opposing viewpoint on end-of-life choice; and allegedly the author has religious affiliations which must compromise her independence on the issue (as one of the opposing viewpoints to the notion of assisted dying is a religious one).

[30]  Addressing first the complainant’s concern about the views presented in the book, The Final Choice, we do not consider the audience was misled. As we have noted in relation to balance, this was discussed in some depth in the interview. Mr Peacock specifically highlighted that those featured in the book are weighted 17 opposed, to four in favour of assisted dying and the End of Life Choice Act. He directly questioned Ms Trayes on this point, asking if this was ‘by design’, and she explained that it partly reflected her selection of interviewees through the submissions to the Select Committee on the legislation, 90% of which were opposed to it.

[31]  With respect to the remainder of the accuracy complaint (as we have interpreted it), we acknowledge the complainant’s concerns, in that there is an expectation in New Zealand that journalists will be objective and impartial on issues of public importance, or else transparent if there is some connection or conflict underpinning their coverage.

[32]  However, it is not the role of this Authority to determine whether the author interviewed on Sunday Morning is ‘independent’ with respect to the issue of end of life choice, or whether Ms Trayes personally holds a particular view on the topic.

[33]  Our role is limited to applying the relevant broadcasting standard and guidelines in the Radio Code, to assess whether the broadcaster made reasonable efforts to ensure accuracy and to ensure that the programme was not misleading, and more broadly whether there was actual or potential harm caused by the broadcast at a level that warrants regulatory intervention or restricting freedom of expression.

[34]  In making these assessments, we have had regard to the following comments from the broadcaster:

• The author’s position on the issue was outlined very clearly in the interview, with the host pointing out that the majority of views in the book were against euthanasia, and asking the author what led to this.
• In response, Ms Trayes, having pointed out her 10-year career as a journalist, answered in part that the ‘...reason why I’ve got more that have spoken against it is because I came with that simple argument, “why shouldn’t we be allowed this?”...’
• The interviewer also challenged Ms Trayes as to any personal convictions which may have influenced her authorship of the book:

But did you Caralise, approach it with any conviction of your own, either say on what we might call the moral question of whether assisted dying is right or wrong or even whether you know the proposed law, the one that we will be voting on later in the year is the right one?

• She replied as follows:

Ah yeah that’s again a fair question. I came at this from a journalist perspective, so, when I entered into the conversation I had a very, very basic understanding – I was probably within that between 58 and 74 percent that may have a view on one way or the other but it was very simplistic. It was a sort of gut instinct but you know, as a journalist we have to learn to put aside any personal bias.... and approach a topic that we are investigating, you know with the least bias as possible and, get yeah that search for that truth really, to give people a platform to ask the tough questions and analyse what is being revealed to us. So that’s the approach that I used when I was interviewing and how I’ve written this book.

• ‘Given this professional approach outlined by Ms Trayes in the interview, there was no need to advise the audience any further of her background, in the same way that we would not advise the audience of the beliefs, let alone any strong beliefs, held by any of our interviewers.’

[35]  The key factor in our view, in considering how a reasonable audience member would have received and interpreted the item, and the likelihood of listeners being misled in the manner alleged, is that the interviewer specifically put to Ms Trayes on air the points the complainant is concerned about.

[36]  We would have expected the interviewer to have been more assertive in challenging the author on these points, for the audience’s benefit, given that many of the points made in the interview implicitly supported the opposing viewpoint; and this was a long-form interview lasting approximately 19 minutes, during which the author was allowed to present her perspective. Mr Peacock asked only two direct questions of Ms Trayes during the interview about whether the weighting of views in the book was ‘by design’ and about her own position on the topic. However, this did enable listeners, to some degree, to evaluate the answers and form their own views.

[37]  Taking this into account, as well as the broad range of coverage by RNZ of alternative viewpoints on the issue of end-of-life choice, we consider the likelihood of the audience being misled or being left misinformed about the issue discussed as a result of this one programme, was reduced.

[38]  In these circumstances, we have not found any breach of the accuracy standard, or harm at a level that warrants regulatory intervention or restricting the right to freedom of expression in this case.

[39]  We therefore do not uphold the accuracy complaint.

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

Judge Bill Hastings

Chair
1 October 2020

Appendix

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

1  EOLCS’s correspondence with RNZ prior to complaint – 30 June-3 July 2020

2  EOLCS’s formal complaint about the broadcast – 6 July 2020

3  RNZ’s decision on the complaint – 4 August 2020

4  EOLCS’s referral to the Authority – 14 August 2020

5  RNZ’s response to the referral – 19 August 2020

6  RNZ’s response to Authority’s request for further comments on accuracy – 31 August 2020

7  EOLCS’s response to RNZ’s further comments – 4 September 2020

¹ <https://www.bsa.govt.nz/assets/20200821-BSA-Fast-Track-Process-for-Election-Programmes.pdf>
² See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Introduction: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
³ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁴ Guideline 8a
⁵ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁶ As above
⁷ See for example: Bidwell and Radio New Zealand Ltd, Decision No. 2020-003 at [12] and Right to Life and MediaWorks TV Ltd, Decision No. 2018-033 at [8]
⁸ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹⁰ New Zealanders in favour of euthanasia legislation (RNZ, 19 July 2020)
¹¹ Graham Adams: A euthanasia referendum in a pandemic (RNZ, 29 June 2020)
¹² End of Life Choice: interviews with doctors, terminally ill (RNZ, 25 June 2020)
¹³ High Court rules on hospices and euthanasia (RNZ, 18 June 2020)
¹⁴ Act’s newest candidate – David Seymour, yes another one (RNZ, 16 June 2020)
¹⁵ 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]
¹⁶ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18