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 an interview on Midday Report with a transgender activist, who discussed whether Immigration New Zealand should allow Posie Parker to enter New Zealand, breached the accuracy, balance and fairness standards. The complainant considered: the host’s description of Parker as an ‘anti-trans activist,’ along with other comments made by the interviewee, were inaccurate; the host was biased; the interview was unbalanced as it did not include the perspective of a women’s rights activist; and that it was unfair to Parker and her supporters. The Authority did not uphold the concerns, finding the broadcast was materially accurate, was clearly approaching the topic from a particular perspective, and did not result in any unfairness.

Not Upheld: Accuracy, Balance, Fairness

The broadcast

[1]  During RNZ’s Midday Report on 23 March 2023, host Mani Dunlop interviewed trans activist Sally Dallow regarding Immigration New Zealand’s pending decision on whether to restrict Posie Parker’s entry to Aotearoa New Zealand. The interview contained the following:

Dunlop:          A trans activist says if Immigration New Zealand lets Posie Parker in to Aotearoa it sends a message to the trans community they are not protected. Kellie-Jay Keen-Minshull, also known as Posie Parker, is a UK-based anti-trans activist who was holding rallies in Auckland and Wellington this weekend. Trans activist Sally Dallow says this debate has caused increased distress in the trans community. I asked her about the impact of this.

Dallow:           The trans community has very high experiences of discrimination, concerns around safety and violence, and there are negative impacts on mental health and wellbeing. Having the hateful and dangerous speech that Posie Parker is renowned for, given voice in this country, simply exacerbates the issues of the trans community that already feels under attack…

Dunlop:          Do you think she should be denied entry into Aotearoa?

Dallow:           I think given her long-term track record of dangerous and hateful speech, particularly to the trans community, but I understand she's also spoken out against other communities. I don't think we should allow her access to New Zealand. There’s a long-term track record of dangerous and hateful speech. Where do we draw the line?

Dunlop:          We have the National Party talking about how they don't agree with her views, but free speech is a democratic right. Do you think that's a fair stance?

Dallow:           No, I think it's disingenuous. The free speech argument is a bit of a red herring. We have laws in New Zealand already against some types of speech. So there's criminal law against threats to kill, there’s civil law against libel and slander. So the debate actually needs to be not about free speech, but about what is acceptable speech in New Zealand and what is unacceptable speech. And I would say that someone with a track record of dangerous and hateful speech should not be allowed into New Zealand to disseminate their views. And that's a debate we need to have as a society, where is that boundary between what is acceptable speech and what is unacceptable speech.

Dunlop:          What message will it send if she is granted entry?

Dallow:           It will send a message that communities in New Zealand are not going to be protected from dangerous and hateful speech. And we know that the trans community is subjected to that and has been for a long time. And there are many other communities from around New Zealand that experience dangerous and hateful speech in their own context. It's almost like allowing Posie Parker in becomes a Trojan horse, because it's against the trans community and that's how it's being framed to allow her entry, but the other associated views that she carries towards other communities can come in with that. So the trans community is at the front line. We are the target, but it's not just about us. And if you're familiar with events in Melbourne last week, you'll be well aware that some of her supporters have far right associations that would be offensive to many New Zealanders.

Dunlop:          You talked about the impact and the harm that this sort of narrative and these sorts of views can cause. On Morning Report this morning we had one of the New Zealand rally organisers talk about and reference particular - and couldn't substantiate what had happened around a Women's Refuge two years ago. Someone being able to go in or go into the refuge that was a transgender woman. And in another reference about prisons and these sorts of unsubstantiated things, that they use as a vehicle to drive their platform and their message. We've come off the back of Pride Week. We've come off the back of Pride Month in Aotearoa. How frustrating is it to have to answer these sorts of questions and to respond to these sorts of claims Sally?

Dallow:           Oh, look, it's hugely frustrating because it takes a huge amount of time and effort for a small, vulnerable community to address these questions when we'd much rather be focusing on uplifting our own community, looking at, you know, dealing with the mental health issues we’ve got in the community. Dealing with the safety and violence issues, dealing with discrimination, ensuring that our rights are met. There's a whole lot of stuff that we can do that's going to have a positive impact on the community. Continually battling against dangerous and hateful speech just takes a lot of time from a group that has a very limited amount of time and could spend that time far more usefully.

Dunlop:          What is your message to anti-trans activists, to TERFs, who are calling for this person, Posie Parker, to come to New Zealand?

Dallow:           She has a track record of dangerous and hateful speech. That is not the person you invite into New Zealand to take part in civil discourse.

The complaint

[2]  Fern Hickson complained the broadcast breached the accuracy, balance and fairness standards of the Code of Broadcasting Standards in New Zealand. The key points of complaint can be summarised as follows:

Accuracy

• It was inaccurate to describe Posie Parker as an ‘anti-trans activist’. ‘An unbiased way of describing her… would be as a “women’s rights or anti-trans activist, depending on your point of view”.’
• ‘Dallow comments that threatening to kill is against the law, thus implying that [Parker] has or will threaten to kill if she is permitted to enter NZ. [The host] allows the slander to stand by not questioning it.’
• Dallow’s comment about Parker’s ‘other associated views’, ‘is a defamatory claim that [Parker] has racist or fascist views.’ This claim was not challenged by the host, nor was Dallow asked to substantiate the claim.
• ‘It is false to claim a link between [Parker] and the neo-Nazis who gate-crashed her Melbourne event. [Parker] made a statement to that effect two days before this broadcast and the Australian Jewish Association has also stated that the neo-Nazis were opportunistically using the event to grab attention.’

Balance

•  ‘The broadcast was a nearly five-minute interview with a trans activist, and did not offer any time for a women’s rights activist to give her perspective.’ ‘[The host] did not seek the perspective of [Parker] supporters who are also campaigning on safety and violence issues and to ensure that their rights are met. There is a clash of rights that [the host] is unwilling to explore…’
• The host did not remain neutral, rather she distanced herself from women’s rights activists, and sympathised with the interviewee’s opinion.
• The complainant also raised broader concerns about balance in RNZ’s general reporting on Posie Parker’s visit to New Zealand and transgender issues.

Fairness

• ‘Dallow repeatedly said [Parker] uses "hateful and dangerous" speech’, and stated “I understand she's also spoken out against other communities..." but no examples were given. ‘This is an unsubstantiated opinion that [the host] did not attempt to clarify or question.’
• The host ‘accused the women’s rights activist who had been on RNZ that morning of making unsubstantiated comments, and of being anti-trans and “TERFS”’, but did not ask Dallow to substantiate any of her ‘defamatory remarks about [Parker].’
• [The host’s] description of Parker’s supporters used ‘a slur that is frequently accompanied by violent threats of rape and death.¹’

The broadcaster’s response

[3]  RNZ did not uphold the complaint for the following reasons:

Accuracy

• ‘It is not inaccurate to describe Kellie-Jay Keen-Minshull (also known as Posie Parker) as an “anti-transgender activist” or an “anti-transgender rights activist”. It appears the media both in New Zealand and internationally have settled on either of those two terms to describe Ms Keen-Minshull. While Ms Keen-Minshull has described herself as a “…women’s rights activist…”, given her singular focus on transgender related issues, it is not unreasonable to describe her position with either of the above descriptors.’
• ‘RNZ would also point out that Ms Dallow is entitled to her opinions on a range of issues explored in this interview.’

Balance

• ‘The balance standard allows for balance to be achieved over time, within the period of current interest. It does not require every significant viewpoint to be presented in every programme that discusses a particular controversial issue of public importance.’
• ‘The standard does not require equal time to be given to each significant viewpoint on a controversial issue of public importance.’
• ‘Sally Dallow’s opposition to Ms Minshull’s New Zealand visit is clear from the outset. The interview explores her viewpoint. It does not purport to be a balanced examination of the issues.’

Fairness  

• ‘RNZ is satisfied that this interview deals fairly with all the parties involved. Your complaint takes exception to Ms Dunlop asking “What is your message to anti-trans activists, to TERFs?” but, since it does not identify any clearly distinct individual or organisation, it cannot be considered unfair for the purposes of the standard.’

The standards

[4]  The purpose of the accuracy standard² is to protect the public from being significantly misinformed.³ 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.

[5]  The balance standard⁴ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.⁵ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.⁶

[6]  The fairness standard⁷ protects the dignity and reputation of those featured in programmes.⁸ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

[7]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[8]  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 against any harm potentially caused by the broadcast. We may only intervene when the resulting limitation on the right to freedom of expression is demonstrably reasonable and justified in a free and democratic society.⁹

Accuracy

[9]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or 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.

[10]  The requirement for factual accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact. However, broadcasters should still make reasonable efforts to ensure analysis, comment or opinion is not materially misleading with respect to any facts referred to, or upon which the analysis, comment or opinion is based.¹⁰

[11]  The standard is concerned only with material inaccuracies. Technical or unimportant points that are unlikely to significantly affect audience’s understanding of the programme as a whole are not considered material.¹¹

Anti-trans

[12]  We note concerns with Parker being described as an ‘anti-trans’ activist have already been addressed in other decisions, where the Authority found the description to be accurate, based on views she has publicly expressed.¹²

Dallow’s comments on the bounds of free speech

[13]  The complainant alleged ‘Dallow comments that threatening to kill is against the law, thus implying that KJK has or will threaten to kill if she is permitted to enter NZ. Dunlop allows the slander to stand by not questioning it.’

[14]  Firstly, we do not consider this was the likely meaning of Dallow's comments. Dallow’s comments were a response to Dunlop’s question regarding whether Parker’s views should be allowed to be disseminated, in light of the right to free speech. Dallow’s response was that she believes the debate that should be held is not about freedom of speech, noting the right is not absolute and some forms of speech are prohibited (she gave the examples of threats to kill, libel and slander), but rather about where the bounds are between acceptable and unacceptable speech. She did not state or imply that Parker has threatened, or will threaten, to kill if she were permitted into New Zealand.

[15]  Secondly, we note Dallow’s comments in response to this question were distinguishable as her opinion, as suggested by the prefaces of ‘I think’ and ‘I would say’, and the accuracy standard therefore does not apply to the comments.

Dallow’s comments on Parker’s views of ‘other communities’ and ‘far right supporters’

[16]  We do not consider Dallow’s statements: ‘I understand [Parker has] also spoken out against other communities’; and ‘the other associated views that [Parker] carries towards other communities’ were misleading given she has expressed views against other communities.¹³ Further, the comments were distinguishable as her opinion and we do not agree that these statements amounted to claims that Parker has racist or fascist views – Dallow did not expand on the nature of the ‘associated views’ she was referring to.

[17]  We also do not consider Dallow’s statement, ‘if you're familiar with events in Melbourne last week, you'll be well aware that some of [Parker’s] supporters have far right associations’ was misleading. It is accurate that neo-Nazis attended Parker’s event in Melbourne.¹⁴ We have also previously found it was not in breach of the standard for broadcasters to state they were ‘supporting’ Parker.¹⁵

[18]  For the above reasons, we do not consider the broadcast breached the accuracy standard.

Balance

[19]  The Authority has previously found Immigration New Zealand’s decision to allow Parker entry to New Zealand to be a controversial issue of public importance.¹⁶ For similar reasons, we find the balance standard applied to this broadcast, on the basis it discussed the issue of whether Parker should be allowed into New Zealand, which was a controversial issue of public importance at the time.

[20]  The next question is whether the broadcaster adequately presented significant viewpoints, either in the same broadcast or in other broadcasts within the period of current interest, taking into account the circumstances of the broadcast.¹⁷

[21]  The standard states the requirement to present significant points of view is likely to be reduced, or in some cases negated where:¹⁸

• It is clear from the programme’s introduction and the way in which the programme is presented, that:
  (i)    The programme is not claiming, or intending to be a balanced examination of an issue.
  (ii)   The programme is signalled as approaching the issue from a particular perspective
  (iii)  The programme is narrowly focussed only on one aspect of a larger, complex debate.
• The audience could reasonably be expected to be aware of views expressed in other coverage, including coverage by other broadcasters and media outlets.

[22]  In this case, the segment was introduced by the statement, ‘a trans activist says if Immigration New Zealand lets Posie Parker into Aotearoa it sends a message to the trans community they are not protected’. This introduction clearly indicated to the audience that the segment was not intended to be a balanced examination on the issue of gender identity and trans rights, but was an interview with a trans activist who would be providing their perspective on Immigration New Zealand’s pending decision on whether to allow entry to Parker.

[23]  While the complainant is concerned the broadcast ‘did not offer any time for a women’s rights activist to give her perspective’, in the context of a broadcast which was clearly signalled as an interview with a trans activist on the particular topic, there was no requirement for the broadcaster to include this perspective.

[24]  In relation to the complainant’s concerns the presenter appeared to be biased in favour of the interviewee’s perspective, we note the standard ‘does not require news, current affairs and factual programming to be presented impartially or without bias. Within the limits established by this standard, broadcasters are free to promote or challenge ideas, philosophies or people.’¹⁹

[25]  Additionally, other perspectives were included in RNZ broadcasts during the period of interest, including: an interview with a member of the Posie Parker organising committee that morning²⁰ as noted in the broadcast; interviews with other supporters of Parker;²¹ and an interview with Parker herself.²² Parker’s views were also the subject of significant media coverage by other media outlets around the same time as the broadcast,²³ so the audience could reasonably be expected to be aware of her, and in turn her supporters’, perspectives.

[26]  Finally, the complainant also raised broader concerns about balance in RNZ’s reporting generally on Parker’s visit to New Zealand and transgender issues. As our jurisdiction is limited to looking at specific broadcasts rather than general programming practice,²⁴ we are unable to consider these concerns.

[27]  In these circumstances, we find no breach of the balance standard.

Fairness

[28]  A consideration of what is ‘fair’ depends on the nature of the programme and the context, including the public significance of the broadcast. We also take into account the nature of the individual (for example, whether they were a public figure familiar with the media, as opposed to an ordinary person with no media experience), and whether any critical comments were aimed at them in their professional or personal lives.²⁵

[29]  It is well established the threshold for finding unfairness is higher for a public figure used to being the subject of robust scrutiny and regular media coverage.²⁶

[30]  The complainant alleged the broadcast was unfair to Parker as Dallow alleged Parker uses hateful and dangerous speech, and stated, ‘I understand she has spoken out against other communities,’ without substantiating these claims.  

[31]  We do not consider this broadcast gave rise to any unfairness to Parker, or caused any harm justifying restriction of freedom of expression, because:

• As we have found above, Dallow’s comments were clearly opinion, broad/generalised in nature, and in the context of this and wider ongoing coverage, unlikely to reflect ‘unfairly negatively’ on Parker.²⁷ Therefore we do not consider it was necessary, in the interests of fairness, for the broadcaster to ask Dallow to ‘substantiate’ them.
• Dallow’s comments did not exceed the type of robust scrutiny a public figure such as Parker could reasonably expect, or go beyond criticising her in a professional/public-facing (rather than personal) capacity.
• RNZ broadcast an interview with Parker the following day,²⁸ providing her the opportunity to put forward her position within proximity to this broadcast and other coverage that may have been perceived as critical of her.

[32]  The complainant further alleged the broadcast was unfair to women’s rights activists by referring to them as ‘anti-trans’ and ‘TERFs’. The fairness standard only applies to particular individuals or organisations. We do not consider Parker’s supporters are an ‘organisation’ for the purpose of the standard, and therefore the standard does not apply to this element of the complaint. We note, however, that we have previously found describing Parker herself as an ‘anti-trans’ activist (as mentioned under the accuracy standard above) and a ‘TERF’ was not unfair or inaccurate, based on her rhetoric toward transgender people and issues, and particularly statements denying the very existence of transgender and gender-diverse people.²⁹

[33]  Accordingly we do not uphold the complaint under the fairness standard.

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

Tupe Solomon-Tanoa’i
Member
12 September 2023    

Appendix

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

1  Fern Hickson’s formal complaint to RNZ – 1 April 2023

2  RNZ’s response to the complaint – 16 May 2023

3  Hickson’s referral to the Authority – 16 May 2022

4  Hickson’s further comments – 23 June 2023

5  RNZ’s confirmation of no further comment – 25 July 2022

¹ The complainant referenced: TERF is a Slur “Threats of violence and Violent Imagery” (accessed 19 July 2023) <terfisaslur>
² Standard 6, Code of Broadcasting Standards in New Zealand
³ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
⁴ Standard 5, Code of Broadcasting Standards in New Zealand
⁵ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 14
⁶ Guideline 5.1
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 Introduction, Code of Broadcasting Standards in New Zealand at page 4
¹⁰ Guideline 6.1
¹¹ Guideline 6.2
¹² Cross and Television New Zealand Ltd, Decision No. 2023-035
¹³ See for example: “Kellie-Jay Keen-Minshull: Who is campaigner Posie Parker and why is she so controversial?” NZ Herald (online ed, 21 March 2023); Woman’s Place UK “Woman’s Place and Kellie-Jay Keen (aka Posie Parker)” <www.womansplaceuk.org>
¹⁴ Andrew McFarlane “Immigration ‘reviewing’ Posie Parker’s entry to NZ” 1 News (online ed, 20 March 2023
¹⁵ Ashton, Hickson & SUFW and Discovery NZ Ltd, Decision No. 2023-028
¹⁶ Cross and Television New Zealand Ltd, Decision No. 2023-035 at [23]-[25]
¹⁷ Guideline 5.1
¹⁸ Guideline 5.4
¹⁹ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 15
²⁰ “Anti-trans activist rally organiser defends events” RNZ (online ed, 21 March 2023)
²¹ “Group backing Posie Parker making complaint over ‘lack of intervention’ by police” RNZ (online ed, 27 March 2023)
²² “Anti-transgender activist on stoush around her entering NZ” RNZ (online ed, 24 March 2023)
²³ “Anti-transgender Activist on stoush around her entering NZ” RNZ (online ed, 24 March 2023; “What are Posie Parker’s views and why are they so controversial?” 1 News (online ed, 24 March 2023; Stewart Sowman-Land “What you need to know about the anti-trans campaigner heading to New Zealand” The Spinoff (21 March 2023)
²⁴ See Broadcasting Act 1989, s 6(1)(a)
²⁵ Guideline 8.1
²⁶ Guideline 8.1
²⁷ Owen and Television New Zealand Ltd, Decision No. 2023-037 at [34]
²⁸ “Anti-transgender activist on stoush around her entering NZ” RNZ (online ed, 24 March 2023)
²⁹ Cross and Television New Zealand Ltd, Decision No. 2023-035 at [31]