BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An episode of I Am Innocent focused on the story of Y, a science teacher, who was accused and charged with indecently assaulting a female student (‘X’) in 2012. The charges against Y were withdrawn around August-September 2013. The episode featured interviews with Y and others, all of whom spoke supportively about him. Ms Johnson complained that the broadcast breached broadcasting standards, including that comments made during the programme about X and her mother resulted in their unfair treatment. The Authority upheld this aspect of Ms Johnson’s complaint, finding that the programme created a negative impression of X and her mother. While the Authority acknowledged the broadcaster’s attempts to contact X and her mother, in order for them to be treated fairly, they needed to be given the opportunity to respond specifically to the negative comments made about their character and personal lives, and if they elected not to respond, consideration ought to have been given to whether the comments should be removed or edited. The Authority did not uphold the remaining aspects of Ms Johnson’s complaint, finding that the programme did not mislead viewers and was accurate in relation to all material points of fact. As X was not identified, no breach of privacy occurred, and the programme did not amount to a discussion of a controversial issue of public importance which required balancing views.

Upheld: Fairness; Not Upheld: Accuracy, Privacy, Balance. No Order.  

Introduction

[1]  An episode of I Am Innocent focused on the story of Y, a science teacher, who was accused and charged with indecently assaulting a female student (‘X’) in 2012. The episode profiled Y’s experience including that charges against him were eventually withdrawn around August-September 2013. The episode featured interviews with Y, his lawyer, his wife and daughter, various community members, and two former students, all of whom spoke supportively about him.

[2]  Joe-Ella Johnson complained to the broadcaster and raised a number of concerns about this programme, including that it was unbalanced and did not uphold or reflect broadcasting standards. Ms Johnson’s primary concern was that key information and alternative viewpoints about the events were omitted from the programme. Further, the programme breached the privacy of X and treated her and her mother unfairly.

[3]  The issues raised in Ms Johnson’s complaint are whether the item breached the accuracy, fairness, privacy and balance standards of the Free-to-Air Television Code of Broadcasting Practice.

[4]  The programme was broadcast at 8.30pm on 16 May 2017 on TVNZ 1. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The programme

[5]  The episode began with a message on screen which read: ‘The programme makers wish to express their support of the NZ Police: What you are about to see reflects the actions of individuals only’. A similar on-screen message at the conclusion of the programme read: ‘CYF [Child, Youth and Family] chose not to comment on claims about its involvement in this case’.

[6]  The introduction to the programme featured Y in mid-shot against a black screen, introducing himself and summarising the charges against him as follows: 

My name is [Y], science teacher. In 2012, I was charged with indecent assault on a 14-year-old student of mine… The accusation nearly destroyed my life. This is my story.

[7]  The title of the programme, I Am Innocent, then appeared on screen, which faded out to a re-enactment of a school classroom, as Y described the events in voiceover: 

The incident happened on March the 16th, 2010. The student came into the room, said that she had attempted to go to the sickbay but had been referred to me. She said she had a very sore throat. I asked her to sit down.

[8]  The programme then featured an interview with Y’s lawyer, who described the student X’s allegations. He said X had alleged that Y took her into his office to check for tonsillitis, and that no one else was present at the time. During the course of the examination, X alleged that Y indecently touched her.

[9]  Y then described in voiceover events in which two police officers issued him with a summons to appear in court in November 2012. The following January, Y said, he was charged with assault on a child aged 12 to 16.

[10]  The programme then moved on to interview Y’s wife, who described the risk when a teacher, particularly a male teacher, was alone with a student of the opposite sex. She said that this was ‘asking for trouble’.

[11]  The programme also featured interviews with members of the community and former students, who described Y as ‘eccentric’, ‘fun’, ‘passionate’ and a ‘larger than life character’. Y accepted that he was ‘a little bit different’.

[12]  Y said that in February 2010, the student who would later make the complaint against him, X, joined the school. During this segment, various comments about X and her family were made, including:

• ‘Previously I had actually taught her mother, not very successfully be it said, and frankly there was just that little bit of teacher interchange between the primary schools and ourselves and we did realise that we had, possibly, a bit of a problem coming our way.’ (Y)
• ‘The girl, I believe, had quite a difficult family life. She was mentally fragile, having a bit of a chip on her shoulder, particularly about males in any form of authority. She found that very difficult to take and she was used to getting her own way.’ (Y)
• ‘The student was disengaged at school. There’s been a continuing number of disciplinary incidents against her.’ (Lawyer)
• ‘Regrettably, she frequently got into trouble – bullying, harassing and even assaulting other students.’ (Y)
• ‘There were three girls that were all skiving off. They were wagging a class and going to sickbay and as soon as the period had finished up and off they went to the next [class]. We took their phones off them to discourage that.’ (Y’s wife)

[13]  As a result of this behaviour, Y, as Dean for the year group, said that he required this particular group of students to see a teacher, or himself, before they could go to the sickbay.

[14]  According to Y’s wife, one day, X told Y she was not feeling well. He decided to check her tonsils and so examined the glands on her throat. The student then went to the doctor with her mother and was given a course of antibiotics. It was alleged X said to her doctor that she was examined by Y. The doctor then wrote a letter to the school’s principal, who was concerned and asked Y to explain. Y said:

I did not touch her breasts. I had absolutely no sexual intent towards her. Essentially, it was her word against mine.

[15]  Y stated that the principal supported him, and as a result, the principal had sent a letter to the doctor, stating that X had not told the whole truth.

[16]  Y then went on to describe his involvement in a ‘messy dispute’ in Family Court proceedings in 2012. The programme could not go into detail about this dispute, involving Child Youth and Family (CYF), except that it involved a member of Y’s wider family. Y’s lawyer stated:

Someone involved in that case for the Family Court goes to CYFs with a complaint about [Y] which is referred to the Police, who advise them that they can’t take the matter further unless someone else complains. You’re in a small town, there’s lots of things going on behind the scenes and everybody knows each other. People have opinions. Some of those opinions are well-formed, others are subject to gossip and innuendo and feed off each other.

[17]  In June or July 2012, CYF were told about the tonsillitis examination incident, which gave CYF grounds to carry out an investigation. Y suggested that this was prompted by someone who wanted to discredit him in the Family Court. Interviewees said that Y had the support of the school during this time, with Y’s lawyer saying:

It appears from the disclosure that the school accepted that what [Y] had done was breaching school policy, especially on the question of touching, and that it could be generally described that he was foolish to have done so. However, the school did not believe that he’d done anything that should attract criminal liability.

[18]  At that time, and despite Y’s advice to Police that he would not be speaking without a lawyer present, Police came to Y’s home. Y acknowledged that his ‘reaction, or overreaction, was due to some accumulation of stresses that occurred over six to nine months’. Y was charged with assaulting the two police officers. In December 2012, CYF wrote to the school to advise that the investigation was complete. Y, reading from the letter written by CYF to the school, said in voiceover: ‘We are satisfied that there are no concerns that we need to follow up after our completion of our child-focused interviews’.

[19]  However, Y still faced the indecent assault charge. On 28 January 2013, Y appeared in the District Court, pleading not guilty. The Teachers Council proposed Y be stood down on full pay until the trial was over. The programme went on to describe the support of the community for Y at this time, and featured an interview with a supportive former student, who described the allegations as ‘ridiculous’.

[20]  At this point, Y said: ‘The young lady said that I had taken her into my office, closed the door and we were by ourselves. That is untrue’. Y’s lawyer said that, ‘The defence had a witness who would corroborate what [Y] was saying… The witness was vital, especially when you consider the consequences for [Y], were he to be convicted’. Later in the programme, the lawyer confirmed that the school had been aware of this, and had written to the doctor concerned in 2010 that a witness had been present during the examination.

[21]  The programme interviewed the former student teacher, who had been present during Y’s examination of X. The student teacher said that X walked into the classroom, complaining about a sore throat. Y asked the student teacher to stay and carry on packing up at the back of the lab, so that he was present in the room. The student teacher confirmed that Y checked X’s throat, and the glands on her armpits, before sending her to the office to see a doctor.

[22]  On 20 August 2013, the Crown advised that an indictment would not be filed. Y’s lawyer stated that this was an ‘equivalent of an acquittal for him’, and in September 2013 the two assault charges were also dropped.

[23]  The programme ended with the interviewees describing the impact of the accusations on Y. Y’s daughter said: ‘The Police, CYFs, and you know, professional bodies who regulate professionals, have a really hard job. They’ve got to keep the public safe. But what dad was accused of – he was innocent’. The programme ended with Y’s statement, ‘I am innocent’.

Preliminary issue – scope of complaint

[24]  Our role in this matter is to assess whether the broadcast in question was in breach of broadcasting standards. It is not our role to assess culpability, whether Y’s assertion of innocence is justified or whether there are other factors which investigators ought to have considered.

[25]  In light of this, while Ms Johnson provided us with lengthy submissions on a range of issues relating to the merits of the charges that were brought and dropped, it is not our role to review the action taken or not taken by the various investigating authorities. Similarly, it is not our role to interfere with how the story was portrayed. Rather, our role is limited to assessing whether the broadcaster, in telling the story that it did, in the way that it did, was fair, balanced, accurate and displayed appropriate regard for the privacy of the individuals referred to in the story.

Overview of findings and freedom of expression

[26]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. The right we have to express ourselves in the way we choose, and to receive information, is a fundamental freedom, but it is not an absolute freedom. It is nevertheless an important right, and we may only interfere and uphold complaints where the limitation on the right is reasonable and justified in a free and democratic society.¹

[27]  We consider that this programme had high value in terms of the right to freedom of expression. We recognise that those who are accused of crimes are not often given the opportunity to speak about their experiences and the impact such allegations can have on their lives and families. We agree that the criminal justice system should be subject to scrutiny, particularly where there are claims that it is not working as it should.

[28]  Having said that, we also recognise that there are often two sides to such stories and the views of both sides – of those who consider themselves to be innocent of the allegations made against them, and those who make those allegations – need to be heard. So while there may be a public interest in this genre, when providing an opportunity for accused individuals to share their story, it is important that those who make the allegations are also respected and their rights protected.

[29]  Here, our task is to weigh the value of this item (and the importance of the expression) against the level of actual or potential harm caused by the broadcast. In this case, Ms Johnson has submitted that harm was caused to audiences due to the misleading nature of the programme, as it omitted key information and alternative viewpoints, and further harm caused to X and her mother as the programme breached their privacy and they were treated unfairly.

[30]  As we discuss further below, we have found overall that parts of the programme created a negative impression of X and her mother, and that the nature of the comments made about their character and personal lives required that an opportunity to respond be given, in the interests of ensuring they were treated fairly. Given the broadcaster was unable to obtain a response from X or her mother (who retracted her comments in relation to the broadcast), some thought should have been given to whether the offending content could have been edited or removed.

[31] We consider that in this genre, where the focus is on the perspective of one party – here the accused – it is important that broadcasters are careful in their portrayal and treatment of other individuals involved and that their rights and dignity, including their right to fair treatment, are equally respected and given due consideration. In this case we have found that the potential harm to X and her mother, as a result of the adverse comments presented in the programme without their response, outweighed the right to freedom of expression, and we therefore uphold the fairness complaint.

Was the broadcast inaccurate or misleading?

[32] The accuracy standard (Standard 9) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from being significantly misinformed.

[33] The standard applies only to material statements of fact broadcast during news, current affairs or factual programmes. It does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.²

The parties’ submissions

Ms Johnson submitted that there was no proof that Y was ‘innocent’ and further contextual information about the incident, the school, and other related matters should have been provided to ensure X’s allegation was presented accurately.

[40] TVNZ submitted that:

• The programme was clear that the tonsil examination took place and outlined where Y’s version of events differed from X’s. Admitting the examination took place did not automatically mean that an indecent assault was also admitted.
• Commentary was included in the programme that Y was ‘unwise’ and ‘acting outside school procedure’ when he examined X.
• Viewers were presented with a range of information, including regarding the assault charges, Y’s unusual or eccentric teaching style, and reference to other allegations of inappropriate behavior, so they were able to form their own opinions about Y and his actions.
• The nature of the allegations was accurately portrayed in the programme, and viewers were provided with both X’s and Y’s versions of events.

Our analysis

[41]  As we have outlined above, the overall premise of I Am Innocent is that it provides an opportunity for the featured individual to tell ‘their side of the story’. I Am Innocent, in its format, therefore focuses almost solely on the perspectives and viewpoints of the accused and those who support the accused.

[42]  This Authority has previously considered complaints about a programme titled Beyond the Darklands, which analysed the psychology of violent criminals, by focusing on New Zealand true crime stories. In its decisions on those complaints, the Authority noted that:²

Because of the way the programme was framed, viewers would have realised that most of the information was a mixture of analysis, hypothesis, opinion, observation and perceptions, as opposed to being undisputed statements of fact.

[43]  We consider that the same reasoning applies here, in that the format and personal perspective of I Am Innocent would have been clear to viewers from the outset. This episode in particular was introduced by Y, who summarised the charges against him and the show’s title emphasised his view, ‘I am innocent’. The episode then delved into his comments on the events leading up to the withdrawal of his charges, outlining why he felt he was justified in claiming his innocence. Similar to Beyond the Darklands, this format is mostly made up of opinion and analysis, rather than material points of fact.

[44]  However, we accept that material points of fact were also asserted through the narrative, particularly by Y’s lawyer, who outlined the allegations and charges made against Y.

[45]  The overall question for us to consider therefore is whether the programme presented the events accurately (as well as fairly and including other critical viewpoints), in the context of a programme presented from the accused’s perspective, and whether the broadcaster made reasonable efforts to ensure viewers were not misled. As noted above, in undertaking this exercise, our assessment is about whether audiences would have been misled – it is not our role to make a determination of whose view is correct.

[46]  Y provided his version of events in his own words and based on his own experiences. His perspective was supported by the student teacher who witnessed the examination, his lawyer and by other members of the community who spoke in support. X’s allegations were summarised by Y’s lawyer, and we are satisfied that the lawyer’s summary was consistent with reporting on the incident. The programme covered in detail the assault charges made against Y and Y’s lawyer also referred to the Family Court proceedings (which could not be discussed in detail due to their confidential nature). It was acknowledged that Y was an eccentric and unusual character, who was clearly acting outside school procedure, and acted ‘foolishly’, when he examined X.

[47]  We acknowledge that the programme provided viewers with some justifications for Y’s actions. For example, in relation to the assault incident, Y explained that he suspected the incident was due to ‘an accumulation of stresses’ that had occurred over the previous months. In this way, the programme could be seen to be advocating for Y’s point of view (and we discuss this issue further under the fairness standard below).

[48]  However, we are satisfied it would have been clear to viewers that this programme presented Y’s own interpretation or perspective on events, and necessarily investigated the justifications for his claim of innocence. We consider that sufficient information was provided to viewers to allow them to come to their own conclusions about Y and his behaviour, and whether they were convinced by his claim for innocence. In this way, we do not consider viewers would have been misled and have found no breach of the accuracy standard (notwithstanding our finding below that X and her mother were treated unfairly, in relation to other comments made about their character and personal lives).

[49]  We therefore do not uphold this aspect of Ms Johnson’s complaint.

Were X and her mother treated unfairly?

[50]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.⁴

[51]  Guideline 11b to the standard states that participants and contributors should be informed, before a broadcast, of the nature of the programme and their proposed contribution, except where justified in the public interest, or where their participation is minor in the context of the programme.

[52]  Guideline 11d to the standard states that if a person or organisation referred to or portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment on the programme, before it is broadcast.

[53]  The practical application of the standard means that if adverse statements are to be made and aired, then the person about whom they are made ought to also be given the opportunity to have their views aired. If they choose not to give their views (which they are entitled to do), due consideration must nevertheless be given to ensuring the programme will not result in unfairness to them or cause undue harm.

The parties’ submissions

[54]  Ms Johnson submitted that:

• Unnecessary and derogatory comments were made about X, her mother and their family life.
• As X and her family were not given a right of reply, these comments were not fair and should not have been aired.

[55]  TVNZ submitted that:

• As X was not shown or identified during the programme, TVNZ considered she did not ‘take part’ in the programme.
• Because neither X, the school nor the town was identified in the programme, X’s consent was not required for the broadcast. However, the broadcaster ‘used its best endeavours to inform the young woman prior to the broadcast of the episode’. It understood that X should be notified of the programme, and this was included as part of the programme’s production plan.
• Attempts were therefore made to contact X via Facebook. X’s mother provided comments on the way she considered the programme should be presented. However, she later retracted those comments and made no further contact with the production company.
• Instead of seeking comment directly from X (although it had made best efforts to inform her of the broadcast), it sought comment in support of her allegations and the subsequent investigation from CYF and the Police in her place. Both declined to comment (and this was made clear in the introductory and closing frames of this episode).
• From this interaction, the production company believed that both X and her mother were aware of the programme and of the likely tone it would take, and that they did not wish to comment further on the programme.
• The comments made about X and her family clearly represented Y’s, and his lawyer’s own opinions. The information provided in these comments was already publicly known and provided context to the allegations made.
• No complaint was received from X or her mother in relation to the broadcast.

Our analysis

[56]  As a starting point, we note that identification is not required under the fairness standard, which states that those ‘taking part or referred to in any broadcast’ should be treated fairly. While neither X nor her mother were identified during the broadcast (discussed under privacy below), they needed only to be ‘referred to’ in the broadcast, for the requirements of the fairness standard to apply.⁵

[57]  During the programme, comments were made by Y, his lawyer and his wife about X and her mother, which we have outlined above at [12].

[58]  We accept that some of these comments may have been required in order to set the scene and to explain to viewers why Y chose to examine X and to assess whether she needed to go to the sickbay. For example, the comments made by Y’s wife, that a group of students were skipping classes to go to the sickbay, were necessary for viewers to understand the sequence of events. However, we consider that other comments, for example,

• Y had previously taught X’s mother, ‘not very successfully’, and the school had ‘a bit of a problem’ coming its way,
• X had a ‘difficult family life’, was ‘mentally fragile’ and ‘used to getting her own way’, and had a ‘chip on her shoulder… about males in any form of authority’, and
• X was ‘disengaged at school’, ‘frequently got into trouble’ and bullied, harassed and assaulted other students,

went further than was required to put the examination in context, and were adverse to X and her mother. These comments reflected negatively on X’s and her mother’s character, and highlighted some sensitive details of their personal lives. Further, the overall purpose of the programme was to provide Y with the opportunity to explain his innocence, and part of this process necessarily involved the discrediting of X and her evidence. This meant that overall, and in combination with the direct comments highlighted above, the programme reflected poorly on X and her mother.

[59]  Applying guideline 11d, X and her mother ought to have been advised of the nature of these particular comments, which went beyond merely summarising X’s allegations and providing context to the events in a general sense, and ought to have been given the opportunity to comment. We acknowledge that in this case the broadcaster did attempt to contact X and her mother.

[60]  We also recognise that, due to the format of this programme, which focuses on one dominant perspective, there may be some reluctance to comment by those involved in raising allegations that are not pursued, and that confidentiality requirements may prevent Police or CYF from providing comment. We acknowledge the challenge that this might present to broadcasters. However, if comment is declined or cannot be given, as was the case here, this does not absolve a broadcaster completely from its obligations to ensure any participants or individuals referred to are treated fairly.⁶ In these circumstances, consideration ought to be given to how undefended statements ought to be presented, and whether such statements should be presented at all.

[61]  We are not objecting to the concept of telling a story through the lens of one person. Where this perspective is clearly signposted, as it was here, and comprehensive details are given, then the audience can make up their own minds as to the weight to be given to that narrative. However, where another individual is discredited, and their perspective is not given, then care must be taken to avoid unfair treatment. In this case, we do not consider that adequate care was taken, and the result was that X and her mother were treated unfairly through the inclusion of details about their personal lives without their comment, and which were presented in support of discrediting the allegations against Y.

[62]  For these reasons, we consider that upholding the fairness complaint places a reasonable limit on the right to freedom of expression, when weighed against the potential harm to X’s and her mother’s individual rights to fair treatment and dignity. We therefore uphold the fairness complaint.

Did the broadcast breach X’s privacy?

[63]  The privacy standard (Standard 10) states that broadcasters should maintain standards consistent with the privacy of the individual. The standard aims to protect, where reasonable, people’s wishes not to have themselves or their affairs broadcast to the public. It seeks to protect their dignity, autonomy, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity. It is a defence to a privacy complaint where matters of legitimate public interest are disclosed.

The parties’ submissions

[64]  Ms Johnson submitted that:

• X’s privacy was breached during the broadcast.
• She was named by a former student on social media and other students subsequently found out about the investigation.

[65]  TVNZ submitted that:

• X was not identified during the broadcast. While some people may have known who was being referred to, TVNZ did not agree that she was identified during the programme. All measures were taken to keep the young woman’s identity private.
• The programme referred to former students finding out about the case ‘in the newspaper’, and did not reference social media.
• Information about X (including her age, the allegations and her ‘general demeanour at the time’) was publicly available and no private facts were disclosed about her.
• The documentary was in the public interest, as few programmes gave ‘wrongfully accused individuals a forum to tell their stories and share the impact such allegations have had on their lives’.

Our analysis

[66]  Three criteria must be satisfied before the Authority will consider upholding a breach of privacy under the standard: the individual whose privacy has allegedly been interfered with must be identifiable; the broadcast must disclose private information or material about that individual; and the disclosure must be considered highly offensive to an objective reasonable person.⁷

[67]  When we consider a privacy complaint, we first determine whether the person (or persons) whose privacy has allegedly been interfered with was identifiable in the broadcast. The test for whether a person is identifiable is whether he or she would be identifiable beyond family and close friends who would reasonably be expected to know about the matter dealt with in the broadcast.⁸

[68]  Here, while some details of the case may have been publicly available and members of the community may already have been in a position to link Y’s story with X, X was not named during the broadcast and we acknowledge that care was taken to ensure identifying details (about X, her school and the town) were not included.

[69]  Accordingly we find that X was not identifiable for the purposes of the privacy standard and we do not uphold the privacy complaint. Nevertheless we consider the complainant’s concerns under this standard have been adequately addressed as a matter of fairness above.

Did the broadcast discuss a controversial issue of public importance which required the presentation of alternative viewpoints?

[70]  The balance standard (Standard 8) states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest. The standard exists to ensure that competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.

The parties’ submissions

[71] Ms Johnson submitted that the programme omitted relevant information, for example the Police and CYF were not given an opportunity to comment during the programme, the name of the school was omitted, and the programme did not present other possible reasons why the charges against Y were withdrawn.

[72] TVNZ submitted that:

• It did not agree that the programme discussed a controversial issue of public importance, as it ‘dealt with individuals and an isolated incident’.
• In any event, it found that significant viewpoints were nevertheless represented, with X’s viewpoint, the Police and CYF, included in the broadcast through commentary and verbatim quoting of correspondence and communications to the school and Y.
• CYF was given the opportunity to comment on the programme and declined. NZ Police were approached in relation to the first series of I Am Innocent and made clear they would not be participating in any way or making comment in relation to the series.

Our analysis

[73]  While Y’s story was in the public interest and would have been of interest to viewers, we do not consider it amounted to discussion of a controversial issue of public importance. Y’s charges, and the withdrawal of those charges in 2013, were unlikely to still have topical currency. Further, the programme focused entirely on Y’s personal story and experiences – and the Authority has previously found that programmes focused on personal stories do not amount to a discussion of a controversial issue of public importance.⁹

[74]  In any event, we consider the programme pointed viewers to the key allegations made by X against Y, and to some of the criticisms made by the community against him (his eccentricity, his ‘foolishness’ and breach of school policy, and the Family Court proceedings).

[75]  As we have discussed above, some of the issues raised by the complainant (for example, her assessment of the reasons why the charges may have been withdrawn), were outside the scope of the programme, which dealt specifically with Y’s reasons for his innocence. We therefore consider Ms Johnson’s concerns are more appropriately dealt with under the fairness standard, which we have considered above.

[76]  In these circumstances, we do not consider the item amounted to a discussion of a controversial issue of public importance, requiring alternative views.

[77]  We therefore do not uphold the complaint under Standard 8.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of I Am Innocent on TVNZ 1 on 16 May 2017 breached Standard 11 of the Free-to-Air Television Code of Broadcasting Practice.

[78]  Having upheld aspects of this complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties. 

Submissions on the provisional decision

[79]  Ms Johnson submitted:

• She found the programme and the interviewees to be biased.
• The programme required an independent lawyer to explain the dropping of Y’s charges, in order to achieve balance.
• Ms Johnson argued that the analysis and opinion provided throughout this episode of I Am Innocent was not clearly distinguishable from fact, which was misleading.
• Ms Johnson’s submissions also raised a number of concerns regarding the treatment of X. She considered the programme amounted to ‘victim bashing’, and maintained X did not set out to make trouble for Y as was suggested in the programme.
• Victim support links should be provided at the end of the programme.

[80]  In relation to TVNZ’s further information regarding attempts to contact X, Ms Johnson submitted:

• X and her mother did not want to provide ‘further ammunition’ that could be used against them.
• The fact that no complaint was received from X or her mother was a ‘moot point’, as anyone could make a complaint even if they were not personally affected. She submitted that the family feared retaliation.
• She was concerned that the broadcaster attempted to use Facebook to contact X and her mother, as this was an unreliable tool. Ms Johnson suggested a direct approach, such as a registered letter.

[81] In her submissions, Ms Johnson also expressed her concerns about the scope of the Authority’s role, stating that the Authority’s inability to ‘assess culpability’, or to interfere with how the story was portrayed, meant its role was too narrow. She was also concerned that the accuracy standard did not apply to statements clearly distinguishable as analysis, comment or opinion, meaning her concerns were ‘conveniently outside… scope’.

[82] TVNZ submitted:

• The assertion that identification was not required under the fairness standard was a significant departure from established precedent. In support, TVNZ cited previous decisions by the Authority, AB and Television New Zealand Ltd¹⁰ and An Ying Group Ltd and Television New Zealand Ltd.¹¹
• The finding that X and her mother were ‘referred to’, without being identified, was also inconsistent with findings of previous decisions by the Authority which ‘imply that there is a threshold to being “referred to”’, citing Dr X and Prime Television¹² and Kingdom Residential Housing and The Radio Network Ltd.¹³ The Authority found that X was not named during the broadcast and care was taken to ensure identifying details were not included. Therefore, the information provided during the broadcast did not meet the threshold of being ‘referred to’, as defined in the above cases.
• A breach of accuracy could, on occasion, lead to a breach of fairness. In this case, the Authority’s finding that the programme adequately presented X’s position on the incident was inconsistent with the requirement for X to be given an opportunity to comment.¹⁴
• The decision incorrectly stated that X and her mother were not given an opportunity to put forward their views or to comment on the allegations made against them. The production company did contact X and offered an opportunity to make comment. Contact was made with X’s mother who withdrew her comments.
• In relation to the Authority’s statement that consideration should be given as to how undefended statements should be presented, and whether they should be presented at all, the production company:
• asked how a negative impression of X and her mother amounted to actual harm, ie, unwarranted harm to their reputation and dignity, when neither was identified
  • submitted that the Authority’s suggestion unjustifiably restricted the broadcaster’s right to free speech, as it meant a broadcaster needed to ‘impose censorship on programmes because people choose not to respond to requests for comment’
  • submitted that, as a result, any individual who did not consent could ‘effectively dilute or have content not presented at all’. This was an undermining of the right to freedom of expression.

[83]  TVNZ asked for these points to be addressed in the Authority’s decision.

Authority’s response to submissions on the provisional decision 

[84]  Provisional decisions are provided to parties to correct any errors of fact in the decision, or any misunderstandings by the Authority.

[85]  In relation to Ms Johnson’s submissions, we consider that a majority of her comments relate to the substance of the complaint. Her submissions reflect her view that this programme was inherently biased and inaccurate in its portrayal of the events leading to the dropping of Y’s charges. Ms Johnson also expressed her frustration that a number of her concerns with the programme I Am Innocent were outside the scope of the Authority’s role.

[86]  As we have outlined in this decision, it is not the Authority’s role to assess culpability, or to interfere with how Y’s story was portrayed, provided this was done in accordance with broadcasting standards. In our view, it was clear to viewers from the outset that this programme was approached from Y’s perspective, and would therefore provide information about the events primarily from his point of view. We agreed, however, that adverse comments were made about X and her mother which resulted in them being treated unfairly.

[87]  We therefore do not consider that Ms Johnson’s submissions alter our findings overall.

[88]  In relation to TVNZ’s submissions, we note that more recent decisions of this Authority support our view that a finding of unfairness does not necessarily require identification.¹⁵ In the decision Dr Z and Television New Zealand, the Authority stated:¹⁶

The fairness standard applies to individuals ‘taking part or referred to’ in a programme. It does not require an individual to be ‘identifiable’, as the privacy standard does (though identification can be a relevant consideration in terms of the extent of any alleged unfairness).

[89]  We have found at paragraph [69] of our decision that X and her mother were not identifiable in the broadcast for the purposes of the privacy standard. However, we are satisfied that this does not affect our finding in relation to fairness. The fairness standard is concerned with broadcasts that unduly harm an individual’s dignity and rights. While harm can be caused as a result of an individual being identified to a wider audience (for example, reputational damage), it does not necessarily follow that every case will require identification in order for us to make a finding of unfairness. Personal harm can also be caused without identification, through injury to feelings or to an individual’s sense of dignity, as well as feelings of humiliation, embarrassment and upset.

[90]  The key issue for us to consider therefore is the harm that was caused as a result of the broadcast. We have found that the comments made in paragraph [12] of the decision caused harm because they were adverse to X’s and her mother’s character and personal lives and presented without any comment in response (notwithstanding the broadcaster’s efforts to contact them). The unfairness was compounded by the programme’s one-sided perspective, meaning the broadcast, and particularly the comments about X’s and her mother’s character, reflected poorly on them.

[91]  While we accept that X and her mother did not take part in the programme and retracted initial comments provided to the broadcaster, we do not consider this excuses the requirement for the broadcaster to ensure that those referred to during a programme are treated fairly. As noted in our decision at paragraph [60], in order to prevent a breach, it was necessary for the broadcaster to either: seek comment or response from X or her mother in relation to the adverse comments; or if X and her mother were unwilling to provide a response for inclusion in the programme, to consider how these comments should be presented, or edit or remove them.

[92]  We do not consider this to be an unjustifiable limit on the broadcaster’s right to freedom of expression. As with all cases, and as we have noted above at paragraph [29], our task is to weigh the value of the broadcast item (and the importance of the expression) against the level of actual or potential harm caused by the broadcast. In this case, we found that harm was caused to X and her mother and that they were treated unfairly as a result of the broadcast, and that this harm outweighed the value of the expression and the public interest in the particular comments made about their personal lives.

[93]  Finally, while we found that the allegations made against Y were accurately summarised in the broadcast, this does not alleviate the broadcaster’s responsibility to ensure that those referred to are treated fairly. In this case, the unfairness did not arise from an inaccuracy in the broadcast regarding the allegations against Y, but from the adverse comments made about X’s and her mother’s character and details of their personal lives, which went beyond providing relevant context to the events. As we have noted above, this unfairness could have been mitigated through X and her mother providing response, or if they were unwilling to comment, consideration given to editing or removing the comments.

Submissions on orders

[94]  Ms Johnson requested that:

• TVNZ be ordered to pay costs in the amount of $5,000 to charity.
• A formal apology on television and a formal apology be made to the affected family directly (not via Facebook).
• An apology in the local newspaper.

[95]  In light of its submissions, TVNZ submitted that publication of the decision (which departed from established precedent) was sufficient.

Authority’s decision on orders

[96]  When the Authority upholds a complaint, whether in whole or in part, we may make orders, including directing the broadcaster to broadcast and/or publish a statement, and/or pay costs to the Crown. We do not intend to make any orders in this case, for the reasons set out below.

[97]  Ms Johnson has submitted in the course of her complaint that X and her mother ‘suffered’ as a result of the events portrayed in I Am Innocent. Ms Johnson submitted that they feared retaliation and were concerned that any comments made to the broadcaster during the programme would ‘add fuel to the fire’.

[98]  Given these submissions, and in light of our finding that X and her mother were treated unfairly in the broadcast, we consider that ordering a broadcast statement would be inappropriate and may risk further negative consequences for X and her mother.

[99]  Further, the broadcaster has submitted that efforts were made to contact X and her mother, and that comments on the programme were sought as it recognised ‘the very nature of the content of each episode is contentious’. We acknowledge that the broadcaster considered the impact this programme might have on X, and took steps to disguise X’s identity. The broadcaster’s conduct was not egregious or reckless, but nevertheless we have found the steps taken in relation to X and her family did not go far enough to protect her, or her mother’s, right to fair treatment. While we have upheld this complaint under fairness for that reason, taking into account the above factors, we do not make an order for costs to the Crown on this occasion.

[100]  In these circumstances, we consider that publication of the decision is sufficient to publicly acknowledge the unfair treatment of the individuals involved, and to provide guidance to broadcasters on the Authority’s expectations for programmes of this nature. Our decision is clear that, even where a programme is presented from a particular perspective, and those referred to are not identified, this does not alleviate the broadcaster’s responsibility to ensure that those referred to are treated fairly, having regard to the usual fundamental principles of fairness.

Signed for and on behalf of the Authority

Peter Radich
Chair

18 December 2017

 
Appendix

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

1     Joe-Ella Johnson’s formal complaint – 17 May 2017
2     TVNZ’s response to the complaint – 15 June 2017
3     Ms Johnson’s referral to the Authority – 24 June 2017
4     TVNZ’s response to the referral – 24 July 2017
5     Ms Johnson’s further comments – 30 July 2017
6     TVNZ’s further comments – 31 August 2017
7     Ms Johnson’s final comments – 6 September 2017
5     TVNZ’s final comments – 14 September 2017
6     Ms Johnson’s submissions on the provisional decision and orders – 3 October 2017
7     TVNZ’s submissions on the provisional decision and orders – 17 October 2017

¹  See sections 5 and 14 of the New Zealand Bill of Rights Act 1990, and Commentary: Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6

²  Guideline 9a

³   Kozeluh and Television New Zealand, Decision No. 2010-054, at [24] 

⁴   Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁵   See, for example: Ranfurly Village Hospital Limited and MediaWorks TV Ltd, Decision No. 2014-034 at [60] and Dr Z and Television New Zealand Ltd, Decision No. 2012-074 at [26]

⁶   For example, see MX & FX and Television New Zealand Ltd, Decision No. 2015-094, at [33]

⁷  Guidelines 10a and 10b

⁸   Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 59

⁹   Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18

¹⁰   Decision No. 2004-049, 2004-050 at [15]

¹¹   Decision No. 2006-089 at [33]-[34]

¹²  Decision No. 2005-052 at [61]

¹³  Decision No. 2003-004 at [25]

¹⁴  Citing Dr X and Prime Television, above, at [68], as precedent

¹⁵  Dr Z and Television New Zealand Ltd, Decision No. 2012-074, at [26]; Ranfurly Village Hospital Limited and MediaWorks TV Ltd, Decision No. 2014-034 at [60]

¹⁶ Dr Z and TVNZ, above, at [26]