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 item on AM concerning the imminent arrival to Aotearoa New Zealand of Kellie-Jay Keen-Minshull, also known as Posie Parker, breached broadcasting standards. The complainant alleged the broadcast was unfair, inaccurate and denigrated Parker by describing her as ‘anti-trans’, that such a description ‘could well increase the likelihood of violent antisocial protests’ at her events, and that the item was also unbalanced. The Authority found that, given Parker’s views, the description ‘anti-trans activist’ was not unfair given its literal accuracy, and the brief item did not otherwise breach broadcasting standards.

Not Upheld: Fairness, Accuracy, Promotion of Illegal or Antisocial Behaviour, Balance, Discrimination and Denigration

The broadcast

[1]  During the 24 March 2023 broadcast of AM, a brief news item aired concerning the imminent arrival to Aotearoa New Zealand of Kellie-Jay Keen-Minshull (also known as Posie Parker):

The controversial anti-trans activist known as Posie Parker is set to arrive in New Zealand today. Immigration officials are under fire for not doing more to deny the 48-year-old Brit entry following ugly scenes in Melbourne. A number of protests and counter-protests are planned this weekend, with the main gatherings in Auckland set to take place at Aotea Square and Albert Park. Rainbow community groups will be in court today arguing Immigration New Zealand's decision.

[2]  During the item, footage was included of people doing Nazi salutes at Parker’s event in Melbourne.

[3]  Further background to Parker’s arrival in New Zealand can be found in our recent decision Cross and Television New Zealand Ltd.¹

The complaint

[4]  Luigi Girardin complained that the broadcast breached the fairness, accuracy, promotion of illegal or antisocial behaviour, balance and discrimination and denigration standards of the Code of Broadcasting Standards in New Zealand for the following key reasons:

Fairness

• Describing Parker as ‘anti-trans’, and inferring she is inclined to the extreme right with footage of neo-Nazis at her event, was unfair to her.
• The broadcaster did not make efforts to seek Parker’s side of the story.

Accuracy

• ‘TV3 has repeatedly referred to [Parker] as an "anti-trans activist". In all the overseas coverage of her in the past two years I have never heard her described as such. She is usually described as a Women's Rights campaigner under the banner of "Let Women Speak".’ ‘Describing her as anti-trans, when she is actually pro [women’s] rights is inaccurate.'
• ‘By repeatedly showing footage of neo Nazis and labelling them as supporters, it is a clear inference by TV3 that she is inclined to the extreme right. There is no proof that they were supporting her, rather than just taking advantage of an opportunity to provoke the pro trans group.’

Promotion of Illegal or Antisocial Behaviour

• ‘Describing her as anti-trans is fuelling the hatred for her from the LGBTQ coalition and could well increase the likelihood of violent antisocial protests by them at her rallies…’

Balance

• ‘I have not seen an actual interview with Ms Keen-Minshull from TV3. They seem to be basing their reports on foreign reporting. There has been no attempt to get her side of the issues.’
• ‘On the contrary, TV3 gives a very strong impression that they have taken the side of the anti-free speech, nastily aggressive LGBTQ protestors.’
• ‘TV3 has not mentioned the threats of rape and death that she, and her supporters, have received regularly from them. The reports are unbalanced and grossly unfair.’

Discrimination and Denigration

• ‘Labelling her as anti-trans, as in hatred of trans people is also denigration of her personally’.

Jurisdiction issue – scope of complaint

[5]  Girardin’s initial formal complaint form submitted to the broadcaster identified the 24 March 2023 broadcast of AM as the programme being complained about. In the body of his complaint, he also stated, ‘Every item on Ms Keen-Minshull I have seen since the 22nd March on The AM Show and Newshub has breached the above standards.’

[6]  During the process of responding to Girardin’s initial complaint, WBD mistakenly sent him a decision relating to a 22 March 2023 report on Newshub Live at 6pm, which also concerned Posie Parker. WBD then apologised and sent Girardin the correct decision concerning the 24 March 2023 report on AM.

[7]  On referral to the Authority, the complainant has attempted to also raise concerns with the 22 March report on Newshub Live at 6pm, in particular regarding a piece of footage of Parker which Newshub chose to blur.²

[8]  Under the Broadcasting Act 1989 (the Act), a formal complaint about a breach of broadcasting standards must relate to a specific broadcast, and include sufficient details to reasonably enable identification of the broadcast.³ Recognising broadcasters’ limited resources, and the time which can be involved in locating specific content, a reasonable estimate will generally involve identifying the period within a window of no greater than three hours.⁴ The question for us is whether the complainant sufficiently identified this second broadcast in his original formal complaint to the broadcaster – if not, we are not able to consider it now, on the basis it did not meet the criteria for being a valid formal complaint about that broadcast and therefore is outside our jurisdiction.⁵

[9]  We do not consider the general concerns raised in Girardin’s initial formal complaint regarding items ‘on Ms Keen-Minshull I have seen since the 22nd March on The AM Show and Newshub’ sufficiently identified the report of 22 March on Newshub Live at 6pm for the purposes of a formal complaint. There are three weekday ‘Newshub’ programmes including Newshub Live at 6pm, Newshub Live at 11.30am, and Newshub Late. The general description provided by the complainant in this respect was therefore insufficient to reasonably enable the broadcaster to identify Newshub Live at 6pm on 22 March 2023 as the broadcast of concern. Further, the particular concerns that the complainant has attempted to raise about the 22 March broadcast of Newshub Live at 6pm on referral were not mentioned at all in the initial complaint, which focused mainly on the ‘anti-trans’ descriptor and lack of Parker’s perspective.

[10]  We therefore find that the broadcaster’s approach of responding to Giardin’s complaint only in relation to the 24 March AM broadcast was appropriate (regardless of its mistake in providing the complainant with a decision concerning the 22 March report on Newshub Live at 6pm).

[11]  This means that our decision below on Girardin’s complaint is limited to the 24 March 2023 broadcast of AM, and the 22 March Newshub broadcast is out of scope. We note, however, that we have nevertheless considered and decided complaints in relation to that broadcast in another recent decision.⁶

The broadcaster’s response

[12]  WBD did not uphold Girardin’s complaint about the AM broadcast of 24 March 2023 for the following key reasons:

Fairness

• ‘The focus of the Broadcast was on Ms Parker's imminent arrival to the country and reference to her as an anti-trans activist provided viewers with the context for the protests that took place at her speaking event in Melbourne. In her position as a public figure, the Committee maintains that Ms Parker would expect to be the subject of robust media scrutiny. We do not agree that this Broadcast resulted in any unfairness to her or any significant harm to her reputation and have found no breach of this standard.’

Accuracy

• ‘The Committee is satisfied that using the term “anti-trans activist” was warranted and did not mislead the audience. The Committee maintains there is sufficient published rhetoric by Ms Parker to support this claim.’
• ‘The Broadcast included footage of Ms Parker’s Melbourne rally showing some attendees making the Nazi salute. Regardless of whether Ms Parker had encouraged their support, the presence of these protestors bolstered the numbers in response to the counter-protestors who were there in support of transgender rights. The Committee maintains it was accurate to report the presence of Neo-Nazis at Ms Parker’s Melbourne event.’

Promotion of Illegal or Antisocial Behaviour

• ‘The Broadcast included footage of scenes at Ms Parker's Melbourne rally however it did not encourage or condone the behaviour. The Committee found that reasonable viewers would not have interpreted the Broadcast as encouraging the audience to break the law or engage in any antisocial behaviour, which is what this standard is designed to protect against.’

Balance

• ‘We do not agree that this brief news report could be considered a “discussion” for the purposes of the Balance standard and have found no breach of the standard. We also note that Ms Parker's time leading up to and while in New Zealand was widely reported and we maintain viewers could reasonably be expected to be aware of views expressed in other coverage by Newshub and other media outlets.’

Discrimination and Denigration

• The level of condemnation, malice or nastiness required under the standard ‘is a high threshold to reach and we do not accept that it was reached on this occasion. Guideline 4.2 of the standard also states that "it is not intended to prevent the broadcast of material that is - factual, a genuine expression of serious comment, analysis or opinion or legitimate humour, drama or satire."’
• ‘The Broadcast was a factual news report focusing on Posie Parker's imminent arrival in New Zealand and the Committee is satisfied it did not encourage the different treatment of or devalue the reputation of all women. The Broadcast did not contain the necessary level of malice or nastiness that is necessary to find a breach of this standard.’

The standards

[13]  The fairness standard⁷ states broadcasters should deal fairly with any individual or organisation taking part or referred to in a broadcast. It protects the dignity and reputation of those featured in programmes, ensuring they are dealt with justly and fairly and protected from unwarranted damage.⁸

[14]  The purpose of the accuracy standard⁹ is to protect the public from being significantly misinformed.¹⁰ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

[15]  The purpose of the promotion of illegal or antisocial behaviour standard¹¹ is to prevent broadcasts that encourage audiences to break the law, or are otherwise likely to promote criminal or serious antisocial activity.¹² Context, and the audience’s ability to exercise choice and control, are crucial in assessing a programme’s likely practical effect.¹³

[16]  We consider these three standards are most applicable to the complaint and have focused our decision accordingly. We deal with the remaining standards briefly at paragraph [32].

Our analysis

[17]  We have watched the broadcast and read the correspondence listed in the Appendix.

[18]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression, and the value and public interest in the broadcast, against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where the resulting limitation on the right to freedom of expression is demonstrably reasonable and justified in a free and democratic society.¹⁴

Fairness

[19]  It is well established that the threshold for finding unfairness is higher for a public figure used to being the subject of robust scrutiny and regular media coverage. It is also commonplace for public figures to be criticised without it giving rise to an expectation of participation in every broadcast.¹⁵

[20]  The complainant has submitted Parker was treated unfairly in that she was misrepresented as an ‘anti‑trans activist,’ and the broadcaster did not seek her side of the story.

[21]  In our decision Cross and Television New Zealand Ltd concerning the same issue,¹⁶ we found the use of the descriptor ‘anti-trans’ for Parker was not unfair given its literal accuracy, based on the views publicly expressed by her.¹⁷ Provided it does not breach broadcasting standards, the right to freedom of expression means broadcasters are free to describe people however they consider appropriate.

[22]  We further note Parker is a prominent and controversial figure in gender ideology debates, outspoken in her views, and familiar with media attention.¹⁸ We do not consider the broadcast in any way exceeded a level of treatment that could be expected of a public figure of Parker’s nature, and in the context of a brief news item, it was not required in the interests of fairness to allow Parker an opportunity to comment as part of the broadcast. We find no breach of the fairness standard.

Accuracy

[23]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate on a material point of fact, or materially misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.

[24]  The complainant has alleged the broadcast was inaccurate as it described Parker as ‘anti-trans’, when she is pro-women’s rights; and claimed neo-Nazis supported Parker, when instead they were just trying to provoke pro-trans people.

[25]  As we have noted above with reference to the Cross and Television New Zealand Ltd case, we are satisfied the use of ‘anti-trans’ as a descriptor for Parker is an accurate and reasonable characterisation of her views.

[26]  Addressing the second issue, this broadcast showed footage of people using Nazi salutes at a Parker event, but did not make any statements regarding this, including who they were supporting or their intentions. On this basis the standard does not apply as the broadcast did not make any statement of fact concerning the matter. Nor could the footage itself, which was taken directly from the events in Melbourne, and showed multiple protest groups, be said to be misleading in any way.

[27]  We therefore find the programme was not inaccurate or misleading, and it is not necessary to go on to determine whether or not the broadcaster made reasonable efforts to ensure accuracy.¹⁹

Promotion of Illegal or Antisocial Behaviour

[28]  This standard is concerned with broadcasts that actively undermine, or promote disobedience of, the law or legal processes. Direct incitement to break the law is likely to breach this standard, if there is a real likelihood the audience will act on it.²⁰

[29]  The complainant has alleged the broadcast breached the standard by calling Parker anti-trans, which incited people to take violent, antisocial actions at her events. We have already found above that the descriptor ‘anti-trans’ was materially accurate and did not give rise to any unfairness to Parker. The question here, is whether reporting this constituted incitement for the audience to disobey the law.

[30]  We do not agree that reporting accurate information about people in news broadcasts can be described as such incitement. In a context where there was reason to use the ‘anti-trans’ descriptor, it was open to the broadcaster to do so, and this in itself could not be said to actively undermine, or promote disobedience of the law or legal processes. Nor did the broadcast, which was a straightforward, approximately 26-second news report on Parker’s imminent arrival to New Zealand, otherwise encourage audiences to break the law, or promote criminal or serious antisocial activity in any way.

[31]  Accordingly we do not uphold the complaint under this standard.

Remaining standards

[32]  We also find the remaining standards raised were either not breached or did not apply:

• Balance: The balance standard only applies to broadcasts that ‘discuss’ a controversial issue of public importance.²¹ This broadcast was a brief news item, around 26 seconds in length. Due to its brevity, we do not consider this item constituted a discussion for the purpose of the balance standard, and on this basis the standard did not apply. In any case, we note the requirement under the balance standard to present significant points of view is likely to be reduced, or in some cases negated, where the audience could reasonably be expected to be aware of significant viewpoints from other media coverage. The Authority has recently found that the audience is likely to be aware of the major perspectives on the issue of Parker’s arrival in New Zealand.²²
• Discrimination and Denigration: This standard only applies to recognised sections of the community,²³ and not to individuals. As the complainant’s concerns under this standard were that labelling Parker as ‘anti-trans’ amounted to ‘denigration of her personally’ as an individual, the standard does not apply.

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

Susie Staley
Chair
9 August 2023    

Appendix

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

1  Luigi Girardin’s formal complaint to WBD - 24 March 2023

2  WBD decision on the initial complaint - 10 May 2023

3  Girardin’s referral to the Authority - 10 May 2023

4  Girardin's further comments on referral - 16 May 2023

5  WBD correspondence concerning scope - 8 June 2023

6  Girardin's submissions in response to BSA guidance - 26 June 2023

7  WBD confirming no further comments - 3 July 2023

¹ Cross and Television New Zealand, Decision No. 2023-035 at paras [1]–[6]
² Similar concerns with this broadcast are addressed in our decision Ashton, Hickson & Levy and Discovery NZ Ltd, Decision No. 2023-028
³ Broadcasting Act 1989, s 6(1)(a); see also Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Complaints” <bsa.govt.nz>
⁴ Broadcasting Standards Authority | Te Mana Whanonga Kaipāho “Complaints” <bsa.govt.nz>
⁵ Broadcasting Act 1989, s 8(1B)
⁶ Ashton, Hickson & Levy and Discovery NZ Ltd, Decision No. 2023-028
⁷ Standard 8, Code of Broadcasting Standards in New Zealand
⁸ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
⁹ Standard 6, Code of Broadcasting Standards in New Zealand
¹⁰ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
¹¹ Standard 3, Code of Broadcasting Standards in New Zealand
¹² Commentary, Standard 3, Code of Broadcasting Standards in New Zealand at page 11
¹³ Guideline 3.1
¹⁴ Introduction, Code of Broadcasting Standards in New Zealand at page 4
¹⁵ See Clough and Television New Zealand Ltd, Decision No. 2022-053 at [19]
¹⁶ See Cross and Television New Zealand Ltd, Decision No. 2023-035 at [30]
¹⁷ See Cross and Television New Zealand Ltd, Decision No. 2023-035 at [31]
¹⁸ “Kellie-Jay Keen-Minshull: Who is campaigner Posie Parker and why is she so controversial?” NZ Herald (online ed, 21 March 2023); “What are Posie Parker’s views and why are they so controversial?” RNZ (online ed, 24 March 2023)
¹⁹ Van der Merwe and Mediaworks TV Ltd, Decision No. 2019-015 at [21]
²⁰ Commentary, Standard 3, Code of Broadcasting Standards in New Zealand at page 11
²¹ Guideline 5.1
²² Cross and Television New Zealand Ltd, Decision No. 2023-035 at [26]
²³ Guideline 4.1