BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Campbell Live – item examining proposed amendment to section 59 of the Crimes Act 1961 which would remove the defence of “reasonable force” for parents charged with assaulting their children – interviewed mother and 14-year-old son – allegedly breached the boy’s privacy, was unbalanced, inaccurate and unfair and in breach of children’s interests

Findings
Standard 3 (privacy) – unable to determine whether the boy consented to the interview – decline to determine

Standard 4 (balance) – significant perspectives put forward – not upheld

Standard 5 (accuracy) – mother was presenting her own opinion, not statements of fact, and was not an “information source” under guideline 5e – did not need to outline background information about the mother – not upheld

Standard 6 (fairness) – boy was exploited under guideline 6f – upheld

Orders
Section 13(1)(a) – broadcast of a statement
Section 16(4) – payment of costs to the Crown $1,500.00

This headnote does not form part of the decision.

Broadcast

[1]  An item on Campbell Live, broadcast at 7pm on 19 July 2006 on TV3, examined a proposed amendment to section 59 of the Crimes Act 1961 which would remove the defence of “reasonable force” for parents charged with assaulting their children.

[2]  The first segment of the item included an interview with a mother who had been found not guilty of assaulting her son with a riding crop by successfully arguing the defence of reasonable force under section 59. The reporter also interviewed the woman’s 14-year-old son, who said that he felt he had deserved the discipline. The boy also stated that when he was grown up he would not smack his own children. After the interview, the host said that the boy’s mother had subsequently said that the boy had only given this response because he was afraid that Child, Youth and Family Services (CYFS) would remove his children if he smacked them. Both the mother and her son were shown in silhouette.

[3]  The second segment of the item involved a studio interview with a Swedish lawyer, Ruby Harrold-Claesson, who had been brought to New Zealand by a group who were opposed to the legislative amendment. Ms Harrold-Claesson had worked with families in Sweden, where a similar law reform had taken place. The host also interviewed Green Party MP Sue Bradford – the main proponent of the law reform – who explained the reasons behind the proposed removal of the “reasonable force” defence.

Complaint

[4]  Dr Cindy Kiro, Children’s Commissioner, made a formal complaint about the programme to CanWest TVWorks Ltd, the broadcaster. She noted that, despite the fact that the mother had been acquitted of assaulting her son, CYFS had substantiated concerns around the 14-year-old boy’s care and protection following an investigation, and the boy had been removed from her care.

[5]  Dr Kiro argued that the programme had breached the 14-year-old boy’s privacy. Although the boy’s face was shown in darkness and in profile, she said, his identity would have been apparent to those familiar with the case. The complainant noted that the boy was in CYFS custody, but was allowed to have supervised visits with his mother. As CanWest had not approached CYFS for consent to interview the boy, she said, no consent had been given.

[6]  Dr Kiro contended that it was “alarming” that the 14-year-old had been interviewed in the presence of his mother. He was in a very vulnerable situation, she wrote, and could “hardly be expected to give open and honest responses in those circumstances”. The complainant observed that it was also in the public domain that the mother and the 14-year-old’s stepfather were currently facing charges of assault on another 16-year-old son, who was “allegedly ‘hog-tied’ in binding tape and beaten”.

[7]  In the complainant’s view, the programme also breached Standard 4 (balance). She maintained that the programme was “heavily weighted against repeal”, noting that the entire first segment had been devoted to interviewing the mother who strongly opposed the law reform. Further, Dr Kiro said, Ms Harrold-Claesson had been allowed to “speak at will and her views were not significantly challenged”, while Sue Bradford had been interviewed in a challenging manner. The complainant observed that only 2 minutes and 28 seconds of the 13 minute item had been allocated to interviewing someone who was pro-repeal.

[8]  Turning to Standard 5 (accuracy) and guideline 5e (reliability of sources), Dr Kiro stated that the mother who had been interviewed was not a reliable information source, and further, the journalist had made no attempt to investigate her credibility or the circumstances of the case. She also argued that Campbell Live should have informed viewers that the mother had several past convictions including violence, and was currently facing assault charges against another son. This information had been printed in the news media, she said, and therefore the broadcaster should have been aware of it.

[9]  The complainant also submitted that the programme was unfair to the 14-year-old boy (Standard 6), and that he had been exploited (guideline 6f). She noted that the boy had been interviewed in the presence of his mother, who he no longer lived with, and said:

Given the circumstances, it is likely that the boy felt under pressure to give answers that he thought his mother would approve of. In fact, she was quick to provide a “correction” when he said that he would not smack his own children. In this case, the boy was exploited to provide an interview under very unusual and pressured conditions.

[10]  Under Standard 9 (children’s interests) and guideline 9i, Dr Kiro reiterated her view that the boy had been exploited, and that the programme was not in his best interests. Campbell Live had “displayed a disregard” for the boy’s rights, she said, and the issue had not been dealt with in a balanced, accurate and fair way.

Standards

[11]  The following Standards, guidelines and privacy principles are relevant to the determination of this complaint:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Privacy Principles¹

i   The protection of privacy includes protection against the public disclosure of private facts where the facts disclosed are highly offensive and objectionable to a reasonable person of ordinary sensibilities.

ii  vii) An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy. Children’s vulnerability must be a prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interest of the child.

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Guidelines

5d Factual reports on the one hand, and opinion, analysis and comment on the other, should be clearly distinguishable.

5e Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Guideline 6f

Broadcasters should recognise the rights of individuals, and particularly children and young people, not to be exploited, humiliated or unnecessarily identified.

Standard 9 Children’s Interests

During children’s normally accepted viewing times, broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.

Guideline 9i

Broadcasters should recognise the rights of children and young people not to be exploited, humiliated or unnecessarily identified. (See United Nations Convention on the Rights of the Child).

Broadcaster's Response to the Complainant

[12]  CanWest first noted that, under the Authority’s privacy principles, a person who was 14 years or older was not considered to be a child. Looking at whether Standard 3 (privacy) had been breached, the broadcaster contended that the boy was not identifiable from the perspective of “a reasonably attentive viewer watching the programme once, for the first time”. Further, CanWest was of the view that the mother was not identifiable in the programme. Accordingly, it found that Standard 3 was not breached.

[13]  Turning to consider Standard 4 (balance), the broadcaster accepted that the item dealt with a controversial issue of public importance. It said, however, that:

The standard does not require a mathematical equality of time for each point of view on a topic, what it requires is a reasonable effort to present the significant points of view and a reasonable opportunity to allow those who hold those points of view to “have their say”.

[14]  CanWest considered that Sue Bradford and Ruby Harrold-Claesson had both been given an opportunity to present their significant points of view on the issue under discussion. It disagreed with the complainant’s view that the mother and son interview necessarily supported retaining the reasonable force defence. Rather, the broadcaster contended, this interview would have had the opposite impact on many viewers, and the programme had neither endorsed nor criticised the mother’s perspective.

[15]  The broadcaster concluded that Standard 4 had not been breached, as it considered that viewers would have clearly understood that there were different points of view on the advisability of amending the legislation.

[16]  In respect of Standard 5 (accuracy), CanWest stated that the mother had not been put forward as a source of factual information, but was clearly telling her own story. This fell within the requirements of guideline 5d, it wrote. The programme had made it clear that her son had been removed from her care, CanWest said, and that she did not have an unblemished past. It found no breach of the standard.

[17]  The broadcaster considered Standard 6 (fairness) and Standard 9 (children’s interests) together, as it found that the complainant had essentially made the same point about the boy being exploited under guidelines 6f and 9i. CanWest wrote that it had asked for comment from the Campbell Live team on the complainant’s argument that it had not considered the rights of the child. It said:

Both son and mother were spoken to separately before their recorded interviews. We asked the young man if he wanted to be interviewed without his mother present. He wanted his mother with him. We were completely satisfied that he was not subject to any coercion from his mother. We spent three hours with mother and son and throughout he was happy and relaxed. His mother was also relaxed about the prospect of our interviewing him and without her present.

[18]  CanWest submitted that it had taken adequate care to ensure that the boy and his mother were treated fairly. It was satisfied that both parties had a good opportunity to express their story in their own words without exploitation or unfairness. The broadcaster found no breach of the standards.

Referral to the Authority

[19]  Dissatisfied with the broadcaster’s response, Dr Kiro referred her complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. Dr Kiro disagreed with CanWest’s assertion that it took adequate care to ensure that the boy and his mother were treated fairly. She reiterated her view that, due to past media coverage of the case, CanWest should have been aware of the need to consult with CYFS as the 14-year-old’s legal custodian.

[20]  Dr Kiro explained that she had contacted CYFS for clarification about the way in which the boy had been interviewed. CYFS told her that, because it had decided it was not in the boy’s best interests to have unsupervised access with his mother, he was staying with his grandparents during the school holidays. While the boy was visiting his sister in Christchurch – and without informing his grandparents – the boy’s mother met up with her son and they flew to Auckland for the interview.

Broadcaster’s Response to the Authority

[21]  CanWest remained confident that the boy was not subject to any duress and freely participated in the interview process. It was apparent in the manner and conduct of the interview, it contended, that the boy was neither pressured nor exploited.

Complainant’s Final Comment

[22]  In her final submission, Dr Kiro disagreed with CanWest’s statement that it had taken adequate care to ensure the boy and his mother were treated fairly. She contended that the broadcaster should have known that the mother did not have unsupervised access to her son, and it should have investigated the matter further.

Authority's Determination

[23]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.  The Authority determines the complaint without a formal hearing.

Standard 3 (privacy)

[24]  The Authority considers that privacy principle (i), relating to the disclosure of private facts, is relevant on this occasion. It observes that the broadcast disclosed that:

• the boy’s mother had minor assault convictions
• his mother’s two former husbands had beaten her and her children
• the boy had kicked a hole in a toilet door at school, and his mother had caned him on the backside
• the boy had swung a baseball bat at a stepfather, and had then been hit on the backside with a riding crop
• CYFS had photos of welts and bruises on the boy from the beating
• the boy was now living away from his mother after the intervention of CYFS.

[25]  In the Authority’s view, these amounted to private facts about the 14-year-old boy. Privacy principle (i) also requires that the disclosure of those private facts must be highly offensive to an objective reasonable person (see for example Decision No. 2005-024).  In this case, the Authority is in no doubt that the disclosure of these facts meets that requirement, because they involve personal and emotional matters relating to a vulnerable young boy.

[26]  However, in order for there to be a breach of privacy principle (i), the individual about whom private facts were disclosed must have been identifiable in the broadcast. The Authority is divided in its opinion about whether the 14-year-old boy was identifiable, but for the reasons outlined below it is not required to make a final determination on this point.

[27]  Privacy principle (vii) states that:

An individual who consents to the invasion of his or her privacy, cannot later succeed in a claim for a breach of privacy. Children’s vulnerability must be a prime concern to broadcasters. When consent is given by the child, or by a parent or someone in loco parentis, broadcasters shall satisfy themselves that the broadcast is in the best interest of the child.

[28]  Dr Kiro argued that the 14-year-old boy was a “child” for the purposes of privacy principle (vii), and therefore the broadcaster should have satisfied itself that the broadcast was in his best interests. However, prior to the revision of the Authority’s privacy principles (effective from 1 August 2006), a “child” was defined as “a boy or girl under the age of 14 years”. Because this broadcast occurred prior to 1 August, the old principles apply, and therefore the 14-year-old boy is not classified as a “child” for the purposes of privacy principle (vii). Therefore the question for the Authority is whether the boy consented to the invasion of his privacy, not whether the broadcast was in his best interests.

[29]  CanWest has argued that the boy freely consented to being interviewed, and was not placed under any pressure by his mother or the Campbell Live team. The Authority has reservations about whether, given the family circumstances and the presence of his mother, the boy could have genuinely consented to being interviewed. However, it is not convinced that any further independent questioning of the boy would resolve this issue, and it is mindful that undertaking such an exercise could further compromise the boy’s well-being.

[30]  In these circumstances, the Authority is unable to make a finding as to whether the boy consented to the breach of his privacy. Therefore it declines to determine the privacy complaint.

Standard 6 (fairness)

[31]  The essence of Dr Kiro’s fairness complaint is that the 14-year-old boy was exploited by the broadcast (guideline 6f). The Authority agrees with the complainant in this respect.

[32]  The Authority notes that the broadcaster was aware that the boy was in a vulnerable situation, having been removed from his mother’s care by CYFS due to ongoing concerns for his safety. Irrespective of whether the broadcaster was aware of the boy’s current access arrangements with his mother, the Authority considers that CanWest had sufficient information about the boy’s situation – in particular the knowledge that he had been assessed as being at risk from his mother – to recognise that it was inappropriate to involve him in the broadcast at his mother’s suggestion.

[33]  Furthermore, the Authority notes that there was available other important information about the mother that CanWest should have taken into account in assessing whether it was appropriate to interview the boy.  First, reasonable research by the broadcaster would have revealed that the mother was facing assault charges against her other son. As the complainant pointed out, this had been reported in other media, and was thus in the public domain.  

[34]  Second, the Authority notes that the broadcaster made no efforts to contact CYFS – the boy’s legal guardian – prior to interviewing him. Had the broadcaster done so, it could have discovered that the mother had secured her son’s presence at the interview using deception. In the Authority’s view, this readily available information was critical to the broadcaster’s assessment of whether it was suitable to involve the boy in the programme.

[35]  Taking into account all the circumstances, the Authority finds that the 14-year-old boy was exploited for the purposes of guideline 6f, and treated unfairly in breach of Standard 6. It upholds the fairness complaint.

Standard 4 (balance)

[36]  Standard 4 requires that balance be provided when controversial issues of public importance are discussed. On this occasion, the programme discussed whether the proposed repeal of section 59 of the Crimes Act would lead to more parents being charged with assaulting their children. The Authority considers this to be an issue to which Standard 4 applies.

[37]  Dr Kiro argued that the programme was unbalanced because Sue Bradford was the only interviewee who spoke in favour of the law reform, and she was only allocated approximately two minutes and 48 seconds of the 13 minute item. In Decision No. 2004-138, the Authority said:

The Authority notes that balance cannot be measured solely by the amount of time accorded to the various parties. This is just one measure by which balance can be assessed. Other appropriate measures are the quality, emphasis, and placement of contributions in the programme.

[38]  On this occasion, the Authority finds that the length of time accorded to Ms Bradford is not determinative of the question of whether the item was balanced. In the Authority’s view, Ms Bradford clearly and concisely articulated her argument in the time available, and her comments would have adequately informed viewers about her perspective on the issue under discussion. The Authority also considers that the presenter acted as devil’s advocate in his interview with Ms Harrold-Claesson, challenging her assertions.

[39]  Furthermore, the Authority observes that the possible repeal of section 59 received a substantial amount of media coverage before the item was broadcast. It considers that viewers would have been well aware that several perspectives on the debate existed, including the pro-repeal viewpoint put forward by Ms Bradford.

[40]  Accordingly, the Authority concludes that the programme was not unbalanced, and it declines to uphold the Standard 4 complaint.

Standard 5 (accuracy)

[41]  Dr Kiro’s main complaint under Standard 5 (accuracy) was that the 14-year-old boy’s mother was not a reliable information source as required by guideline 5e. However, the Authority notes that the requirement for accuracy only applies to “points of fact”, not to opinion and comment. In the Authority’s view, the mother was clearly putting forward her personal views about whether parents should have the legal right to discipline their children physically. She did not purport to be presenting statements of fact about the issue under discussion, and therefore the Authority concludes that she was not an “information source” for the purposes of guideline 5e. The Authority does not uphold this part of the complaint.

[42]  The complainant also observed that the programme did not fully outline the mother’s background and the allegations of abuse relating to her other son, and argued that because of this omission the mother was portrayed as having been “unfairly treated by the authorities for a light smack with a riding crop”.

[43]  The Authority does not agree that the omission of this information would have given viewers an inaccurate impression of the mother, or of her approach to disciplining her children.

[44]  First, the focus of that section of the programme was the prosecution of the mother for the riding crop incident.  Second, it was clear from the interview that the mother did not regret her actions, and regarded physical discipline as the most powerful tool in a parent’s arsenal.  The fact that the mother was facing assault charges in respect of another son would have simply reinforced this point.  For these reasons, the Authority considers that the omission of this information did not amount to an inaccuracy, and it does not uphold this part of the complaint.

Standard 9 (children’s interests)

[45]  The Authority notes that Dr Kiro’s complaint under Standard 9 (children’s interests) is on the same grounds as the fairness complaint, as guidelines 6f and 9i are identical. Accordingly, it subsumes this part of the complaint into its consideration of Standard 6 (fairness).

Bill of Rights

[46]  For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its decision on this occasion constitutes a reasonable limitation on the right to free expression, consistent with the New Zealand Bill of Rights Act.

For the above reasons the Authority upholds the complaint that the broadcast by CanWest TVWorks Ltd of an item on Campbell Live on 19 July 2006 breached Standard 6 (fairness) of the Free-to-Air Television Code of Broadcasting Practice.

[47]  Having upheld a complaint, the Authority may impose orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions from the parties.

[48]  Dr Kiro submitted that the Authority should order CanWest to broadcast a statement on Campbell Live summarising the reasons why the complaint was upheld. It also contended that a payment of costs to the Crown, up to $5,000, was appropriate.

[49]  CanWest expressed its view that orders should only be made “in circumstances where the Authority has been able to unanimously determine with certainty all of the relevant facts relating to the breach”. It submitted that no orders should be made in this case.

[50]  Having considered the submissions made by the parties, the Authority finds it appropriate to order CanWest to broadcast a statement summarising the upheld aspect of the Authority’s decision.

[51]  The Authority has unanimously upheld a breach of Standard 6 (fairness) in relation to a 14-year-old boy who was exploited in the broadcast. In these circumstances, it finds that an award of costs to the Crown is warranted. The Authority considers that $1,500 is an appropriate amount.

Orders

The Authority makes the following orders pursuant to s.13 and s.16 of the Broadcasting Act 1989:
1. Pursuant to s.13(1)(a) of the Act, the Authority orders CanWest TVWorks Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within four weeks of the date of this decision during Campbell Live
• contain a comprehensive summary of the upheld aspect of the Authority’s decision.

The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2. Pursuant to s.16(4) of the Act, the Authority orders CanWest TVWorks Ltd to pay to the Crown costs in the amount of $1,500, within six weeks of the date of this decision.

The order for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Joanne Morris
Chair
30 April 2007

Appendix

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

1    Dr Cindy Kiro’s formal complaint – 15 August 2006

2    CanWest’s decision on the formal complaint – 19 September 2006

3    Dr Kiro’s referral to the Authority – 29 September 2006

4    CanWest’s response to the Authority – 3 November 2006

5    Dr Kiro’s final comment – 22 November 2006

6    Dr Kiro’s submissions on orders – 15 March 2007

7    CanWest’s submissions on orders – 15 March 2007