BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

[This summary does not form part of the decision.]

Warning: This decision contains references to sexual assault

The majority of the Authority upheld (in part) a complaint about a segment on Marae discussing the bounds of the right to freedom of expression, in the wake of Posie Parker’s ‘Let Women Speak’ events. The complaint argued the segment was unbalanced, disproportionately favouring views of participants against the events, and inaccurate in multiple respects. The Authority found the segment adequately presented significant viewpoints through the inclusion of multiple guests, through the host’s questioning and in the introductory segment. The Authority considered most of the alleged inaccuracies were unlikely to have significantly affected viewers’ understanding of the broadcast as a whole. The majority found one of the comments in the broadcast (relating to the characterisation of Parker) was materially inaccurate and this issue created harm sufficient to justify a restriction on the right to freedom of expression.

Upheld by Majority: Accuracy, Not Upheld: Balance

No Order

The broadcast

[1]  An episode of Marae, broadcast on 12 April 2023, discussed issues concerning the right to freedom of expression in the wake of Posie Parker (‘Let Women Speak’) and Julian Batchelor (‘Stop Co-Governance’) gatherings.

[2]  Marae is a bilingual current affairs programme, with parts in te reo Māori with English subtitles as necessary. This episode was presented by Scotty Morrison.

[3]  Following a mihi, Morrison noted the episode would discuss freedom of speech. An introductory segment followed with a reporter narrating the issue over footage from protests, and other relevant events, over the years, ranging from the land march to the occupation at Parliament. It outlined the importance of the right to freedom of expression, as expressed in section 14 of the New Zealand Bill of Rights Act 1990, and included the following statements:

• ‘Freedom of speech does not mean freedom of consequences, as Posie Parker [showing footage from the rally] and Julian Batchelor [showing footage from inside one of his events] found out this week.’
• ‘However, as we uphold the value of freedom of speech, attention must be paid to its limitations. Hate speech and deliberate incitement of violence has no place in society, and is not protected under freedom of speech.’
• ‘Individuals can express their opinions but they are accountable for their words and if someone doesn’t agree with you, they’re also allowed to express themselves.’
• ‘So what’s the takeaway here? Be mindful of what you say and let’s not forget that freedom of speech isn’t just about saying offensive things. It’s also about being able to express your opinions and advocate for what you believe in.’

[4]  Morrison was joined by three guests: Shaneel Lal (2023 Young New Zealander of the Year); Associate Professor Khylee Quince (AUT Dean of Law); and Suzanne Levy (from the organisation Speak Up for Women). The broadcast discussed many issues on the subject, including:

• The panellists’ perception of Parker coming into New Zealand (Lal noting Parker does not advance the rights of women as she claims; Levy noting the right to freedom of expression means Parker should have been allowed to speak here.)
• The interaction between free speech and harmful / hate speech.
• Whether the counter-protesters’ actions ‘crossed the line’ of free speech.
• Violence at the rally (Lal noting there ‘was unwanted use of force… the most violence suffered in terms of Posie Parker was [to] her Marilyn Monroe dollar-store wig and suit’ and Levy responding, ‘I would say that there’s a 70-year-old woman who’s got a fractured eye socket who would probably argue against that.’)
• Whether Parker’s views would have constituted hate speech (Levy noting it was not an ‘objective truth’ that what was going to be said was hate speech).

[5]  In discussing the above issues, the broadcast included the following statements:

Morrison:    Suzanne, let's go to you on the line there. Why should Posie have been allowed to speak here in Aotearoa?

Levy:            Oh, good morning, Scotty, well because we have freedom of expression. We have a Bill of Rights that, as your clip said, that allows us to receive, seek and impart opinions. I think on Saturday, we didn't see anything that resembled freedom of expression. The women who wanted to speak were unable to do so. The people who came to listen to those women, they weren't able to listen to what anybody said. The protesters didn't enter into a debate. They didn't offer better or other opinions. They simply used violence and intimidation to force, you know, to force it to stop.

Morrison:    But you must agree though, Suzanne, that her [Parker’s] words have been harmful to a lot of communities, not just the trans communities. And that, you know, what you're going to think that's a natural reaction from those communities is to protest this woman who is promoting negative views on a particular section of our community?

Levy:            … some people have different ideas on those views. I'm a women's rights activist, so I say that the views that say that a man can't be a lesbian are completely valid, that a man can't be a woman, that women should have access to spaces that are free from men. I think they are completely valid opinions. And I don't think it's up to the media or our Government ministers to decide whether women should be allowed to speak and whether other people should be able to come and listen to those opinions. 

…

Quince:        So I think the first thing we can say is that, yes, you have the right to free speech, but it's not an absolute right. We're not in the United States, their free speech is protected in the First Amendment to the Constitution as a Supreme law. Our Bill of Rights Act doesn't operate like that. So freedom of expression, which is really where free speech sits in this country, is not an absolute right. So it needs to be balanced against the rights of others, including other rights in the Bill of Rights, the freedom to be protected from discrimination, the rights of minorities to express and live their reo, their culture, their faith. So there is a competition of rights, for one, and then the second thing is that there are consequences to the assertion of free speech. There's no bright line between free speech and harmful speech. That's an evaluation, or an evaluative decision made by the courts or made by the police as to when someone has crossed the line into inciting racial disharmony, singling out particular groups for very harmful speech. And, and it's our opinion, and the opinion of others, that people like Posie Parker have crossed that line. And to some extent... 

Morrison:    But is that against the law?

Quince:        Yes, it is. So free speech is only protected to the limit where it becomes hate speech and hate speech is currently criminalised in the Human Rights Act at a fairly low threshold, which is, you know, inciting ill will or ridicule of groups. It doesn't go far enough and that’s where this Government agreed, following the commission, the Royal Commission of Inquiry into the Christchurch terror attacks to extend the protection in terms of criminalising hate speech. So that's been put on the backburner.

…

Morrison:    So, Suzanne, how do we regulate free speech, or should free speech be regulated then so it doesn't escalate into hate speech because, you know, the line gets a bit blurred I would say that, you know, when does free speech become hate speech? And when you listen to the interpretation of the definition, the whakamārama from Khylee, you see that Posie Parker and what her messaging is, is actually sort of crossing over the line into hate speech. So how do you regulate someone like Posie Parker so when they come into the country, they have the freedom to express their opinions, but in a way that doesn't cross that line into hate speech. How do we regulate it? 

Levy:            I don't think it's an objective truth that what Posie Parker was going to say was hate speech. I think I mean. 

Morrison:    But the definition in the Bill of Rights, yes it is. 

Levy:            What does the Bill of Rights say about hate speech? 

Morrison:    Let me just tell you. Hold on a minute. Well, Khylee you'll probably be quicker than me.

Quince:        Well, yes. Well, if it's exposing people to ill will, ridicule and harm, then what we know, I take your point, Suzanne, that she didn't get to speak on that occasion, but what we do know from previous occasions is that she has called for the elimination and extinguishment of trans people. She has called for the forcible sterilisation of trans people, undoubtedly, that is speech that crosses the line. So she didn't get to say it on that occasion, but she has in the past.

Morrison:    What Suzanne is, is alluding to is that in section 14 of the freedom of expression Bill of Rights Aotearoa, everyone has the right to the freedom of expression, including to impart information and opinions of any kind in any form. But that's only part of it, isn't it? 

Quince:        Correct. So section 5 of the Act also says that these rights only exist to the extent that they are reasonably justified in a democratic community. So a society like New Zealand would say that at times the police and the courts can step in to say, even in advance, as they've done this week in relation to Julian Batchelor's tour with the cancellation of his kōrero, his planned hui in Mount Eden, Havelock North similarly saying on health and safety grounds, it seems that you're going to say things that is likely to cause public disorder. So those are other parts of the puzzle that we need to think about. 

Morrison:    So then from a legal perspective, what's your opinion, oh, sorry, did you have something to say there Suzanne?  

Levy:            I was going to say, that the courts did rule on that and they ruled that she could enter the country and that she wasn't a risk.

Morrison:    But she did come here and then there was risk when she came here. 

Levy:            But where was the risk? To me it looked like the risk was from the protesters. I think the people who have assembled to listen, and bear in mind that the purpose of the event was 'Let Women Speak' and I have to say that from the support we've received from New Zealanders over the last week, the irony of an event called 'Let Women Speak' that was not able to go ahead has not been lost on them. 

Quince:        But often the numbers don't fall in your favour when the overwhelming majority of people who are at the protest, myself, myself included with my whānau, including my tamariki, were there to protest her being there in an expression of our free speech. So there are consequences, as Shaneel has said, and I think it's timely to think this week is the anniversary of the passing of matua Moana Jackson and remember what he had to say from a te ao Māori perspective about free speech is that the assertion, my assertion, one's assertion of free speech should never make another person feel less free. 

[6]  To the extent they are relevant, we address further statements in the context of each of the complainant’s concerns.

The complaint

[7]  Fern Hickson complained the broadcast breached the balance and accuracy standards of the Code of Broadcasting Standards in New Zealand:

Balance

• ‘Two people spoke against the free speech of women attending the “Let women Speak” rally at Albert Park on 25 March. Only one was invited to speak in favour of their free speech. This was a clear imbalance, giving two thirds of the available time to one side of the argument.’
• A ‘significant viewpoint was missed by not seeking commentary from a group such as the Free Speech Union (FSU) about the veracity of the statement that “free speech is not without consequence”.’ (elaborated below under the first alleged breach of accuracy).

Accuracy

• Hickson considered the broadcast was inaccurate in seven respects:
• (1)  Bounds of free speech
  • The only acceptable 'consequence' of free speech is someone debating the arguments and persuading people to a different point of view. Assaulting women attending a permitted public event is violence, not a 'consequence’. Denying anyone the right to speak at all, is anti-democratic, not a ‘consequence’. ‘If a representative of the Free Speech Union, for example, had been included, the misinformation in the introduction that "free speech does not mean freedom from consequences" could have been avoided.’
  • While there are legal consequences for unlawful speech, this discussion was about lawful speech. ‘When Marae endorses social consequences for lawful speech, it is endorsing the shouting down, vilifying, de-platforming, and thugs’ veto that have become ever more common practices used to silence anyone who holds a different opinion. We no longer have free speech in Aotearoa when programmes like Marae mischaracterise these sorts of actions as justified ‘consequences’. 
  • Parker’s right to free speech was supported by the High Court¹ and the Human Rights Commissioner.²
  • Hickson also had concerns with TVNZ’s description of Parker as ‘anti-trans’ rather than as a ‘women’s rights campaigner’, ‘contributing to public misunderstanding of the issues.’
• (2)  Misrepresenting the HRA
  • The Human Rights Act 1993 (HRA) provisions concerning hate speech were misrepresented in the broadcast.
  • Hickson considered the relevant section of the Act was section 61 which ‘prohibits the distribution of material by any means that is “threatening, abusive or insulting” without specifying that the material must be related to the colour, race, or ethnicity of a targeted group. The people who were breaching Section 61 of the Act on 25 March were the trans activists who held abusive signs that used the “c” word and threatened violence against women who disagreed with them. Two of these activists have now been charged with physical assault. Are these assaults to be interpreted as an acceptable “consequence” of free speech?’
  • Hickson accepted it was ‘reasonable for Marae to rely on the opinion of Khylee Quince’ but noted the section she refers to only covered ‘colour, race or ethnic or national origins’, not the type of speech which prompted this broadcast, being ‘the clash between the rights of women and the demands of transgender activists’.
  • Marae ‘needs to ensure that any experts it uses are non-partisan and will quote it accurately. Quince, having attended the rally in support of the trans activists, was not an objective expert and evidently cherry-picked a clause in the HR Act and misrepresented it to bolster her point of view.’
• (3)  Statistics re violence
  • Lal’s endorsement of Marama Davidson MP’s comment as ‘a fact about white men and violence’ was inaccurate, particularly where Davidson had withdrawn the remark herself shortly after.
  • TVNZ’s reliance on other statistics (in responding to the complaint) has ‘no meaning unless they are compared with the relative percentage of each ethnicity in the whole population’.
• (4)  Parker’s proposed speech
  • The broadcast misrepresented Parker’s proposed speech as defamatory.
  • TVNZ ‘says that no statement can be made by me about Parker’s intentions at the rally, as she did not speak, then immediately endorses the assertions made by Quince about what she thinks Parker would have said. Our law does not allow people to be charged with an offence before it has taken place, but [TVNZ] finds it acceptable for Quince to use quotations taken out of context to accuse Parker of breaching the HR Act in advance and in absentia.’
  • As noted above, the Human Rights Commissioner confirmed Parker’s ‘right to speak without being shouted down’.
• (5)  Violence at rally
  • Lal downplayed the violence at the rally.
  • TVNZ’s reliance on other media reporting on the rally, and violence, is inaccurate as although the rally was widely covered, ‘in nearly all cases the violence was either not mentioned at all or was misreported as a “scuffle”, the crowds “mingled”, or that there was violence from “both sides”.’ Hickson also criticised each of the sources TVNZ relied on in this regard. Further, Hickson said links postdating the broadcast are irrelevant to this particular complaint.
• (6)  Parker’s claims
  • The ‘most outlandish falsehood about Keen made by Lal is the claim that, “Posie Parker has told her followers due to the transgender agenda, cisgender women are being kidnapped, blended and put into meat for human consumption." There is no truth whatsoever to this claim. In this video, it is clear that Ms Keen is talking about ONE case in the UK where an abducted girl's body was never found and there was a possibility that her body had been disposed of in this way. The alleged perpetrators were heterosexual men who were members of the sexual grooming gangs in the UK that were exposed in about 2018.’³
  • TVNZ’s reliance on other sources (particularly an interview that occurred two weeks later) does not make the above accurate.
  • ‘Accuracy is not measured by whether something is a “reasonable outtake”; it is measured by whether or not it is true’ and in this case it was inaccurate, as noted above.
• (7)  Lal’s characterisation of Parker
  • Lal accuses Parker of ‘using hate speech to incite violence and then does exactly that by saying…. “it has also become apparent to me that, if the State does not act, New Zealanders will, and the likes of Suzanne learned that very clearly last week.”’
  • Hickson criticised the quotes relied on by TVNZ, noting they were taken out of context and to the extent they constitute particular allegations, they are supported by documented examples — ‘Parker is wholly entitled to question why men who claim to be women and who express views that most women find abhorrent should be embraced by the media and politicians as valid representatives of the female sex.’
  • Hickson rejected the assumption the complaint relied on ‘transphobic stereotypes’ where it is ‘supported by evidence and reputable references’.

[8]  Hickson requested a number of remedies, including on-‑air corrections regarding certain alleged inaccuracies and follow-up programmes to include an interview with a representative from Mana Wāhine Kōrero and to ‘fairly debate’ the issue around the bounds of free speech.

The broadcaster’s response

[9]  TVNZ did not uphold the complaint for the following reasons:

Balance

• ‘Significant viewpoints on this issue were heard in the Marae programme… including from a representative of the women's group, Speak Up For Women.’
• ‘It is an established principle of this standard that balance cannot be measured by a stopwatch; or through the expectation of an even number of speakers from all sides, it is sufficient that significant viewpoints are adequately represented as it was in this programme.’
• ‘The Committee does not agree that Marae was required, due to the expectations of this standard, to include comment from the Free Speech Union as you have stated.’
• Further, ‘significant viewpoints on the issue of Ms Parker's rallies have been canvassed in the media throughout the period of interest so it is reasonable to expect that viewers would be aware of alternative viewpoints that existed.’

Accuracy

• Concerning each of the alleged inaccuracies:
• (1) Bounds of free speech
  • There ‘are many consequences of breaching human rights legislation, including legal and social consequences.’
  • Some of Parker’s statements are ‘undeniably anti trans or transphobic… in New Zealand it was reported there was a spike in online hate toward the trans community after Ms Parker’s visit’.⁴
  • Transphobia is a social harm that can cause physical and mental harm to those subject to it. ‘It cannot be expected that harmful speech is permitted unchecked under the law or in society. In the case of Ms Parker’s events social action was taken in the form of protest and interrupting actions (such as noise), and a small amount of people committed unlawful actions. It is therefore correct to say freedom of expression does not mean freedom of consequences … as Posie Parker and Julian Batchelor found out this week. Marae talks about consequences not “acceptable consequences”’ as suggested by the complainant.
  • TVNZ did not consider the broadcast endorsed any illegal activity, or that the discussion of the consequences was misleading or inaccurate.
  • It is not inaccurate to describe Parker as anti-trans.⁵
• (2)  Misrepresenting the HRA
  • It was reasonable for TVNZ to rely on Quince, as the Dean of Law at AUT, for her ‘explanations and comments about legal issues such as the wording of the Human Rights Act 1993.’ In any event, the phrasing was accurate as it reflected terminology in s 131 of the Human Rights Act, not s 61 as the complainant considered.
  • Parker’s statements calling for the ‘elimination and extinguishment of trans people’ and the ‘forcible sterilisation of trans people’ can be described as breaching s 61 of the Act (on the complainant’s interpretation, as these ‘comments are threatening, abusive or insulting’.)
• (3)  Statistics re violence
  • TVNZ accepted Lal’s endorsement of Marama Davidson MP’s comment as ‘a fact about white men and violence’ was ‘not correct for all types of interpersonal or family violence.’
  • Lal’s comment regarding Davidson was ‘not material to viewer’s understanding of the discussion about Posie Parker and freedom of expression rights. It was widely known and reported that Ms Davidson corrected her statement about this issue, which had first been made in difficult circumstances, after criticism from commentators. It is reasonable to expect that Marae viewers would be aware of this correction.’
• (4)  Parker’s proposed speech
  • ‘Ms Quince’s characterisation of Ms Parker’s statements is proven, as above [referring to Parker’s views on the forcible sterilisation of trans people]. Ms Quince acknowledges that Ms Parker did not have the opportunity to make these statements due to the protest action.’
• (5)  Violence at rally
  • Lal’s ‘comments are their opinion, to which they are entitled and which are not regulated by the Accuracy standard.’ In any case the Auckland rally was widely discussed in news media so that viewers could be fully informed of this issue.’⁶
  • This was also an ongoing story, with sources relied on being relevant within the period of current interest.
• (6)  Parker’s claims and Lal’s characterisation of Parker
  • Lal referred to Parker’s statements which incite violence against transgender people. ‘While not nuanced, and relying on information about Posie Parker which is not available in the Marae programme,’ TVNZ considered this brief statement ‘doesn’t materially mischaracterise Ms Parker’s statements which in essence say that transwomen want to sexually assault and rape women and children (the transgender agenda).’⁷
  • Lal was discussing their understanding of one of Parker’s statements. Parker has ‘linked trans-women with grooming and paedophilia; and refers to trans women as men’. TVNZ considered it was reasonable for Lal to interpret Parker’s statements in this manner.
  • TVNZ referred to BSA guidance acknowledging trans and non‑binary people are vulnerable to harm, and that complaints relying on transphobic stereotypes are unlikely to succeed.⁸
  • The complainant ‘attempts to minimise Ms Parker’s harmful statements, however this is what she has said. The nuance Ms Hickson considers relevant does not remove the harm in Ms Parker’s commentary. These statements were only briefly discussed in the programme.’

The standards

[10]  The balance standard⁹ states that when controversial issues of public importance are discussed in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant viewpoints either in the same broadcast or in other broadcasts within the period of current interest unless the audience can reasonably be expected to be aware of significant viewpoints from other media coverage. The standard ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.¹⁰

[11]  The purpose of the accuracy standard¹¹ is to protect the public from being significantly misinformed.¹² 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.

Our analysis

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

Freedom of expression

[13]  When we make a decision on a complaint that broadcasting standards have been breached, we weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast.

[14]  As recognised in the broadcast itself, while the right to freedom of expression is enshrined in the New Zealand Bill of Rights Act 1990, the right is not absolute. Individual freedoms are necessarily limited by membership of society and by the rights of others and the interests of the community.¹³

[15]  It can be difficult to strike a balance and indeed the law requires us to be cautious before restricting the right to freedom of expression. The Bill of Rights Act states this should only occur when it is ’demonstrably justified in a free and democratic society’.¹⁴ The level of public interest in a broadcast is particularly important too.

[16]  Therefore, the Authority may only intervene when the limitation on the right is justifiable, as above, taking into account the level of public interest in the broadcast and the level of actual or potential harm caused.¹⁵

Balance

[17]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The balance 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’.¹⁶

[18]  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’.¹⁷ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.¹⁸

[19]  This Marae broadcast discussed the bounds of the right to freedom of expression in the wake of Parker’s rally, and particularly whether the right to freedom of expression should extend to aspects of Parker’s speech. The issue is clearly controversial, exciting conflicting opinion, and given the public response surrounding Parker’s entry into New Zealand (and the wide coverage it generated), was also topical. Given the discussion of human rights, it is also of public importance. Accordingly, the balance standard applies.

[20]  The next question is whether the broadcaster adequately presented significant viewpoints on this issue either within the broadcast or in other broadcasts within the period of current interest. We are satisfied the broadcaster met its obligations in this respect, taking into account the following:

• The broadcast included perspectives from Lal, Associate Professor Quince, and Levy (who supported Parker’s speaking events).
• The standard does not require equal time to be given to each significant viewpoint, but rather that broadcasters make reasonable efforts, or give reasonable opportunities, to present alternative significant viewpoints.¹⁹
• Levy was given several opportunities during the segment to present views in support of Parker’s speaking events and ‘the free speech of women attending’ (as framed by the complainant). These opportunities included the following:
  • In response to why Parker should have been allowed to speak here, she stated ‘well because we have freedom of expression. We have a Bill of Rights that, as your clip said, that allows us to receive, seek and impart opinions. I think on Saturday, we didn't see anything that resembled freedom of expression.’
  • Regarding the alleged harm of Parker’s views, Levy noted ‘some people have different ideas on those views. I'm a women's rights activist, so I say that the views that say that a man can't be a lesbian are completely valid, that a man can't be a woman, that women should have access to spaces that are free from men. I think they are completely valid opinions.’
  • In response to Morrison’s statement there was ‘risk’ when Parker entered New Zealand, Levy stated ‘But where was the risk? To me it looked like the risk was from the protesters.’
• Within the programme, Morrison also challenged the position of his guests (including of Lal and Quince) through his questioning. For example, Morrison put to Lal in the context of discussing the limits of free speech, ‘do you think that some of what you’ve said actually incites and escalates what the protesters will do?’
• The standard also allows for balance to be achieved over time, within the period of current interest.²⁰ As our recent decisions note,²¹ the particular issue of Parker’s arrival in New Zealand was the subject of widespread media coverage by TVNZ and other outlets.²² Viewers could reasonably be expected to be aware of relevant alternative perspectives on the issue, particularly by the time of this broadcast on 12 April 2023, more than two weeks after Parker’s scheduled events.
• We also note the broader issue of the bounds of the right to freedom of expression were also the subject of media coverage within the relevant period of interest.²³

[21]  In these circumstances, we find no breach of the balance standard and do not uphold this part of the complaint.

[22]  The complainant’s concern, that the presence of another interviewee could have ‘avoided’ further misinformation, is in our view more appropriately dealt with under the accuracy standard.

Accuracy

Majority view (Susie Staley MNZM, Aroha Beck)

[23]  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.

[24]  The standard is concerned only with material inaccuracies. Technical or other points unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.²⁴

[25]  Further, the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.²⁵ However, broadcasters should still make reasonable efforts to ensure such statements are not materially misleading with respect to any facts referred to, or upon which they are based.

[26]  An opinion is someone’s view. It is contestable, and others may hold a different view. It is not always clear whether a statement is an assertion of fact or an opinion – this will depend on the context, presentation, and how a reasonable viewer would perceive the information. Relevant factors may include:²⁶

• the language used
• the type of programme (eg talkback can involve discussion of factual matters but is generally recognised as a robust environment focused on the exchange of opinions)
• the role or reputation of the person speaking
• the subject matter
• whether the statement is attributed to someone
• whether evidence or proof is provided.

[27]  The complainant identified multiple parts of the broadcast said to be inaccurate. Viewing the segment as a whole, while we consider some portions of the broadcast were misleading (which we address shortly), with one exception, we do not consider these had the effect of significantly affecting viewers’ understanding of the broadcast as a whole, justifying a restriction on the right to freedom of expression.

[28]  The broadcast explored legalistic concepts in a way that was digestible for the average viewer and involved a discussion among the host and panellists of how a right should apply in particular circumstances – rather than stating any final view on the issue. Indeed, the broadcast opened with an outline of conflicting perspectives of how the right to freedom of expression operates in a New Zealand context, indicating to the audience that the issue is subject to discussion and debate.

[29]  Rights analyses are highly fact specific, involving a balancing exercise between the effect of restricting the right to freedom of expression and any potential harm in the particular circumstances. Although the broadcast was discussing a normative position (how a right should apply) it was grounded in the practical example of Parker’s speaking events. Therefore, we consider the representation of Parker, and her events, were material to the broader discussion of the bounds of freedom of expression in similar circumstances. We consider viewers would have appreciated the broadcast primarily reflected the personal perspectives and opinions of each participant, particularly through its format as a panel discussion on a contentious issue. As noted above, such comments are generally not subject to the accuracy standard. However, opinions can be misleading if the underlying facts on which they are based are misrepresented.²⁷

[30]  We consider Parker, and her speaking event, were to some degree mispresented in this particular broadcast, which in turn affected the discussion on how the right to freedom of expression should apply.

[31]  With this in mind, we now address each of the complainant’s concerns.

Bounds of free speech

[32]  The complainant’s key concern under this heading concerns the statement ‘free speech does not mean freedom of consequences’ in the introductory segment.

[33]  We do not consider the statement would have been understood by viewers as anything other than a reflection of reality – that those seeking to express views which are strongly contested by others are likely to experience a reaction. This was supported by the surrounding context concerning public reaction to Parker and Batchelor in the form of protest and calling for their events to be cancelled. The introductory segment also went on to state individuals expressing their opinions were ‘accountable for their words and if someone doesn’t agree… they’re also allowed to express themselves’, which acknowledged the type of consequence referred to, that is, generating debate and expression persuading people to another point of view.

[34]  We do not consider these statements in the programme were inaccurate or misleading.

[35]  Nor do we consider the broadcast suggested that a physical assault would be an acceptable or justified ‘consequence’ in response to someone’s speech, as we elaborate below under the alleged ‘misrepresentation of violence’ inaccuracy.

[36]  For completeness, (and as the concern was raised by the complainant under this heading), we reiterate our earlier finding that the descriptor ‘anti-trans’ for Parker’s views is not inaccurate given her publicly expressed views.²⁸

Misrepresentation of HRA

[37]  We acknowledge there was some confusion in the broadcast regarding what behaviour is prohibited under the HRA and more broadly what laws were being referred to by the panellists (for example the host citing the definitions of hate speech ‘in the Bill of Rights Act’, when Associate Professor Quince had been referring to the HRA). Quince said the HRA criminalises hate speech:

… at a fairly low threshold, which is, you know, inciting ill will or ridicule of groups. It doesn't go far enough. And that's where this Government agreed, following the commission – the Royal Commission of Inquiry into the Christchurch terror attacks – to extend the protection in terms of criminalising hate speech. So that's been put on the backburner…

[38]  The complainant and the broadcaster have different views regarding the relevant section in the HRA prohibiting hate speech, and whether Quince was referring to section 61 or 131 of the Act.

[39]  The broadcaster maintains Quince was referring to s 131 which punishes conduct ‘likely to excite hostility or ill-will’ (reflecting the language Quince used).

[40]  However, both sections only protect against conduct directed towards groups sharing particular characteristics, being ‘colour, race, or ethnic or national origins’. The sections do not protect conduct targeted at someone due to their sex or gender (the former being a prohibited ground of discrimination which may have been more appropriate to the discussion at hand).²⁹

[41]  While this was hinted at in Quince’s statement regarding extending the protection of the provisions (‘It doesn’t go far enough’), we acknowledge the broadcast did not clarify the particular groups protected by the sections, which may have been preferable to give greater clarity around the point Quince was making and whether or not in fact those hate speech laws may have applied in these circumstances.

[42]  However,  given the broader context of the programme, the wide-ranging nature of the discussion – which allowed opportunities for all participants to offer their views on where the line is between free speech and hate speech and whether Parker’s views crossed that line – and the normative position it was taking, ie a discussion on what the law should be in this situation rather than what it is, we do not consider this discussion materially misled the audience. Sufficient information and viewpoints were given to enable viewers to consider for themselves whether Parker’s views (subject to our later findings) ‘crossed the line’ into hate speech or harmful speech, irrespective of whether it would ‘break the law’ of any section under the HRA.

[43]  Technical inaccuracies can arise when specific legal points are canvassed in such a panel discussion format. However, the standard is not concerned with such inaccuracies if they are unlikely to significantly affect viewers’ understanding of the programme as a whole.

[44]  In response to the complainant’s concerns of Quince not being an ‘objective expert’, we note a broadcaster’s choice of interviewee is an editorial decision and a matter of personal preference that is not capable of being resolved through a complaints process.³⁰ Quince also clearly acknowledged the position she was coming from (noting she had attended the event as a protester) and that she held the opinion that Parker’s views had crossed the line of what was acceptable free speech. Viewers were accordingly able to judge for themselves whether her personal views should colour their interpretation of her comments.

Reference to Davidson’s comment

[45]  We note both parties submitted extensively on this point. Since our focus is what was actually broadcast, we first note Lal’s statement in the programme was:

But as soon as Marama Davidson states a fact about white men and violence, David Seymour and Winston Peters are calling for Marama Davidson to be sacked, and Christopher Luxon wants her to apologise to white men. People who advocate for absolute freedom of speech are blatant hypocrites.

[46]  Lal did not repeat the statement referred to. While referring to it as a ‘fact’, we do not consider the veracity of that statement (or the complainant’s point that Davidson later retracted the comment) would have materially affected viewers’ understanding of the broadcast and the point Lal was making, that the right to freedom of speech is not absolute.

[47]  Lal’s statement was also used to support an earlier issue mentioned concerning the bounds of freedom of speech – illustrating that speech (being Davidson’s statement in this case) can have consequences (being Seymour’s, Peters’, and Luxon’s responses), as discussed in the introductory segment.

[48]  In these circumstances, and noting the ‘fact’ referred to was not detailed and its substance not discussed, we find no breach of the accuracy standard on this point.

Parker’s proposed speech

[49]  We understand the complainant’s concern under this heading to relate to the characterisation of Parker’s proposed speech as ‘hate speech’ when she did not have an opportunity to speak on the day of her scheduled event (or at the later cancelled event) — in other words, there could not have been hate speech when there was no speech to begin with.

[50]  We accept that Parker was ultimately not able to speak, meaning her proposed speech could not be definitively characterised on the information likely to be available to the broadcaster. However, we consider it would have been clear to viewers that the speech did not occur, and comments regarding the nature of her views (or likely speech) were based on her views as expressed elsewhere. Viewers would therefore not have been misled by the characterisation of her views. Quince summarised this position in the broadcast:

I take your point, Suzanne, that she didn't get to speak on that occasion, but what we do know from previous occasions is that she has called for the elimination and extinguishment of transpeople. She has called for the forcible sterilisation of trans people. Undoubtedly, that is speech that crosses the line. So she doesn't get to say it on that occasion. But she has in the past.

Misrepresentation of violence at the rally

[51]  The complainant’s concern under this heading is that Lal did not appropriately characterise the events at Parker’s rally.

[52]  Turning to the dialogue in the broadcast:

Levy:       My response would be to ask Shaneel to condemn the violence on the weekend. We haven't heard that.

Lal:          I will say there was no violence against Posie Parker. I think there was unwanted use of force, yes, and I think that was not right. However, the most violence suffered in terms of Posie Parker was her Marilyn Monroe dollar-store wig and suit.

Levy:       I would say that there's a 70‑year‑old woman who's got a fractured eye socket who would probably argue against that.

[53]  We consider the language used, and characterisation of whether certain incidents amounted to ‘violence’, was Lal’s opinion. While we acknowledge their opinion may still be misleading if the underlying facts were misrepresented, we consider each speaker characterised the rally based on their own perspectives (and may have been referring to separate incidents – one apparently involving Parker being doused with tomato juice,³¹ and the other apparently referring to a 72-year-old woman who was struck at the rally³²). Given the description of events in the above dialogue, and that Lal was referring to violence against Parker (whereas Levy referred to other events) the audience was unlikely to be misled about the nature of events at the rally.

[54]  For completeness, we note some concern with Lal’s comments towards Parker’s ‘dollar store wig and suit’ which may have overstepped the bounds of reasonable comment and entered the territory of personal attack. The fairness standard was not raised in this instance, and we do not consider it reasonably necessary to imply the standard to properly consider the complaint. However, we note comments such as these contributed to the overall characterisation of Parker, particularly her vilification.

Lal’s characterisation of Parker and her claims

[55]  While Lal’s characterisation of Parker was their opinion, we consider it was, at least in one area, misleading with respect to the underlying facts on which they relied.

[56]  Concerning the claims made against Parker, we note the relevant statement by Lal was:

What the likes of Posie Parker do is that they lie for the purposes of inciting violence against transgender people. Posie Parker has told her followers that due to the transgender agenda, cisgender women are being kidnapped, blended and put into meat for human consumption. Now, that is a ridiculous claim, but when you have a fan base of nothing but fools, they believe you and they act on their hatred against transgender people. Posie Parker has called for cisgender men to go into women's toilets with guns to protect cisgender women from transgender women. Posie Parker's funders have been calling for the complete elimination of transgender people.

[57]  TVNZ has referenced a video of Parker stating a young woman had been cut up and sold as meat for human consumption by men in ‘grooming gangs’. In that video, Parker opines the motivation for these offences, and their cover up, ‘only make sense’ when considered through a paedophilia lens. TVNZ noted Parker refers to trans women as ‘men’, and links trans women with being paedophiles and ‘creepy men’.³³ Given this broader context, TVNZ considered Lal’s statement did not ‘materially mischaracterise’ Parker’s statement.

[58]  While we note this interpretation of Lal’s statement, the comments would have been more readily seen as an ‘interpretation’ of Parker’s views if expressed in a manner consistent with opinion. 

[59]  However, we consider viewers would have perceived Lal’s statement as an assertion of fact, to which the accuracy standard applies, and it had the potential to mislead viewers as to Parker’s perspective on the relevant crime. Parker clearly did not state ‘the transgender agenda’ was responsible for this crime in the relevant video. She attributed the crime to ‘grooming gangs’.

[60]  Having found the broadcast misleading on this point, the next question is whether the relevant statement is materially misleading in the context of the broadcast. As we have noted earlier, although the focus of the broadcast was on how the right to freedom of expression should apply in particular circumstances, the discussion was only given colour through its grounding in Parker’s situation. Rights-based analyses do not occur in the abstract and a misrepresentation in connection with the practical example referenced could lead to viewers reaching different conclusions regarding where the appropriate balance lies (particularly with respect to Parker).

[61]  Accordingly, given the programme’s focus on Parker, attributing such a false statement to her (which Lal acknowledged would be a ‘ridiculous’ thing for her to say) could significantly affect the audience’s understanding of the programme as a whole.³⁴ We therefore find the statement was materially misleading.

[62]  The next question for us is whether the broadcaster made reasonable efforts to ensure accuracy. In the context of such a panel discussion, and given this statement occurred in the closing moments, we appreciate the challenges with correcting it. However, Lal was allowed to speak unchallenged for over a minute (with the above statement occurring part way through that period). Morrison did not question Lal at any stage during or after the comments. Levy attempted to comment when Lal had finished speaking. However, Morrison signalled they were out of time, leaving Lal’s comments unchecked. Given the nature of the statement attributed to Parker, the broadcaster could reasonably be expected to question or challenge it in some way – and we consider there was time to achieve this even as the programme came to a close. Accordingly, we find the broadcaster has not made reasonable efforts to ensure accuracy in this instance.

[63]  The final question for us is whether any harm caused or potentially caused by the broadcast justifies our intervention to limit the broadcaster’s freedom of expression, taking into account the level of public interest in the broadcast.

[64]  On balance, we have concluded that it does. Freedom of expression allows for the criticism of Parker’s publicly expressed views. It is not a tool intended to facilitate the general vilification of an individual. In our view, Lal’s misleading characterisation of Parker’s statement again strayed into the realm of personal attack. It detracted from, rather than contributing to, viewers’ understanding of the issues being discussed – an unfortunate outcome in a broadcast considering such important, topical and contentious issues. For these reasons we consider the harm potentially caused by the statement does justify a restriction on the right to freedom of expression.

Minority view (Tupe Solomon-Tanoa’i, John Gillespie)

[65]  We, the minority, agree with the principles and conclusions expressed by the majority except in relation to the majority’s assessment of the degree of harm potentially caused by the comments outlined in paragraph [56].

[66]  On balance, we do not consider any potential harm reached the threshold to justify upholding the complaint in this instance. The broadcast carried significant value, discussing a topical and contentious issue at a time when it had assumed public importance. The misleading characterisation of the particular statement was one aspect of a broader discussion. While it may have affected some viewers’ ultimate perspectives on how the right to freedom of expression should apply in the context of Parker, we do not consider it did so to such an extent justifying a restriction on the right to freedom of expression in the circumstances.

Conclusion

[67]  There is general agreement amongst us regarding the principles that govern our decision and regarding our conclusions in respect of most aspects of the complaint. With regard to the one area where we differ (the assessment of the degree of harm potentially caused by the comments outlined in paragraph [56]), as the majority of the Authority members have found that the potential harm does justify regulatory intervention, the accuracy complaint is upheld on this point.

For the above reasons the majority of the Authority upholds the complaint that the broadcast by TVNZ of Marae on 12 April 2023 breached Standard 6 (Accuracy) of the Code of Broadcasting Standards in New Zealand.

[68]  Having upheld the complaint under the accuracy standard, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989.  We have concluded no order is warranted in this case. Publication of our decision is sufficient to publicly notify the breach of the accuracy standard, censure the broadcaster, and provide guidance to TVNZ and other broadcasters regarding their responsibilities with respect to the assertions of fact made by interviewees.

Signed for and on behalf of the Authority

Susie Staley
Chair
20 November 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 TVNZ – 7 April 2023

2  TVNZ’s decision on complaint – 8 May 2023

3  Hickson’s referral to the Authority – 20 May 2023

4  Hickson’s response to the Authority’s guidance on complaints concerning gender identity issues – 23 June 2023

5  TVNZ’s response to referral – 4 July 2023

6  Hickson’s final comments – 18 July 2023

7  TVNZ’s confirmation of no further comments – 24 July 2023

¹ Citing Anneke Smith “High Court rules decision to allow British anti-transgender activist Posie Parker into country was lawful” RNZ (online ed, 24 March 2023)
² Paul Hunt “No human right eclipses another is lesson from Parker” Human Rights Commission | Te Kāhui Tika Tangata (28 March 2023)
³ Referencing a video that is no longer available on YouTube
⁴ Citing Hamish Cardwell “Spike in online hate toward trans community after Posie Parker visit – researchers” RNZ (online ed, 4 April 2023); and Hanna McCallum “'Most violent targeting of any community': The aftermath of Posie Parker's visit” Stuff (5 May 2023)
⁵ Citing the New Zealand Media Council’s decision in Hamilton-Hart v NZ Herald, Case number 3402 at [27]
⁶ Citing various reports on the rally, and subsequent events, including: “Posie Parker rally: Speech abandoned, Brian Tamaki rally derailed” 1 News (online ed, 25 March 2023); “'Worst place' - Posie Parker leaves NZ after failed events” 1 News (online ed, 26 March 2023); “Man appears in court, accused of punching woman at Parker rally” 1 News (online ed, 20 April 2023). TVNZ noted ‘This list is not definitive but is an example of the reports about the violence at the Auckland rally, and comments from Ms Parker on this rally, in 1 News reporting’
⁷ Referring to Parker’s views reflected in Jean Wilda “Kellie-Jay Keen claims women are being made into meat for human consumption” YouTube (28 March 2023); and Megyn Kelly “Trans Ideology Harming Women & Danger of "Affirming" Care, w/ Kellie-Jay Keen "Posie Parker" & More” YouTube (15 April 2023)
⁸ Broadcasting Standards Authority | Te Mana Whanonga Kaipāho BSA Guidance: Complaints Concerning Gender Identity Issues (June 2023) <www.bsa.govt.nz>
⁹ Standard 5, Code of Broadcasting Standards in New Zealand
¹⁰ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at 14
¹¹ Standard 6, Code of Broadcasting Standards in New Zealand
¹² Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at 16
¹³ See Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [6.5.1]
¹⁴ Introduction, Code of Broadcasting Standards in New Zealand at 4, referring to section 5 of the New Zealand Bill of Rights Act 1990
¹⁵ Introduction, Code of Broadcasting Standards in New Zealand at 4
¹⁶ Guideline 5.1
¹⁷ Guideline 5.1
¹⁸ Guideline 5.1
¹⁹ Guideline 5.3
²⁰ Guideline 5.2
²¹ See, for example, Cross and Television New Zealand Ltd, Decision No. 2023-035 and Owen & Healing and Television New Zealand Ltd, Decision No. 2023-037
²² For examples within the week of these broadcasts, see: Stewart Sowman-Lund “What you need to know about the anti-trans campaigner heading to New Zealand” The Spinoff (21 March 2023); “What are Posie Parker's views and why are they so controversial?” 1 News (online ed, 24 March 2023); Raphael Franks “Posie Parker tour of NZ: Anti-trans activist Kellie-Jay Keen-Minshull arrives in Auckland” NZ Herald (online ed, 24 March 2023); “Posie Parker departs New Zealand; JK Rowling blasts protest as 'repellent'” RNZ (online ed, 26 March 2023); Tess McClure “Anti-trans activist Posie Parker leaves New Zealand after chaotic protests” The Guardian (online ed, 26 March 2023)
²³ See, for example, “Posie Parker protest: Christopher Luxon says right to free speech must be protected” RNZ (online ed, 26 March 2023) quoting Luxon’s statement that ‘as much as you may actually like or dislike her views, you actually have to defend the right for people to have free speech in a liberal democracy…’; and the subject broadcasts in Oxley and Television New Zealand Ltd, Decision No. 2023-051
²⁴ Guideline 6.2
²⁵ Guideline 6.1
²⁶ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand
²⁷ See Burne-Field and NZME Radio Ltd, Decision No. 2020-040
²⁸ Cross and Television New Zealand, Decision No. 2023-035 at [31]
²⁹ Human Rights Act 1993, s 21(1)(a)
³⁰ Broadcasting Act 1989, s 5(c)
³¹ Sophie Harris “Tomato juice thrower 'ready to face consequences if necessary' following Posie Parker incident” Stuff (26 March 2023)
³² Craig Kapitan and Joseph Los’e “Posie Parker protest: Activist pleads guilty to punching elderly woman at heated Auckland trans rights protest” The New Zealand Herald (online ed, 10 August 2023)
³³ See footnote 7, above
³⁴ Guideline 6.2