BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Beyond the Darklands: Bert Potter – programme was a case study of Bert Potter based on analysis by a clinical psychologist and recollections of former members of his Centrepoint commune – allegedly in breach of controversial issues, accuracy and fairness

Findings
Standard 4 (controversial issues – viewpoints) – programme was a case study by psychologist of Bert Potter and his involvement in Centrepoint – historical interest for viewers but no discussion of a controversial issue of public importance – not upheld

Standard 5 (accuracy) – no inaccurate points of fact – programme would not have misled viewers – not upheld

Standard 6 (fairness) – no individuals or organisations treated unfairly – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An episode of Beyond the Darklands, a series in which a clinical psychologist, Nigel Latta, profiled notorious New Zealand criminals, was broadcast on TV One at 9.30pm on 2 March 2010. The episode examined the life of Bert Potter, and was introduced by a narrator as follows:

Clinical psychologist Nigel Latta has worked with some of our most serious criminal offenders for 19 years. Tonight he takes us beyond the darklands and into the mind of New Zealand’s notorious sex offender and cult leader Bert Potter.

[2]   The programme contained interviews with former members of Mr Potter’s Centrepoint commune who shared their experiences with Mr Potter and Centrepoint, including a woman who had been sexually abused as a child in the commune.

Complaint

[3]   Bonnie Kozeluh made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the programme breached standards relating to controversial issues, accuracy and fairness.

[4]   Ms Kozeluh argued that the programme was inaccurate in failing to distinguish between “former members” of Centrepoint and the “children of Centrepoint”. She considered that no sensitivity had been shown for the children, and that they had been “unfairly identified as abused children”. Further, she maintained that Mr Latta had referred to all the children of Centrepoint as being victims of abuse, which had resulted in humiliation for many people.

[5]   The complainant argued that the programme was not clearly distinguishable as comment, analysis or opinion, and that the programme presented only one view. She said that contrary information had been provided to the programme’s production team and was not included in the programme. Ms Kozeluh contended that “as the media surrounding Centrepoint has always been historically one-sided viewers could not reasonably be expected to be aware of alternative views”.

[6]   Ms Kozeluh also argued that the programme’s failure to distinguish between archive footage and re-enactments was misleading.

Standards

[7]   TVNZ assessed the complaint under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice, which provide:

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance in news, current affairs or 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.

Standard 5 Accuracy

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/or
• does not mislead.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[8]   TVNZ argued that the sexual offending against some children in the Centrepoint commune by Bert Potter and others in the commune was not a controversial issue. It noted that Mr Potter had been jailed for indecently assaulting minors and that seven others were convicted of sexual assaults on minors.

[9]   TVNZ said that the programme producers had spoken to approximately 30 former Centrepoint members, including some of the people convicted of sexual assault. Some of them did not want to contribute to the programme, it said, while others did want their perspectives to be broadcast, as in the case of one of the victims. It pointed out that a number of positive comments about Centrepoint were included in the programme.

[10]   TVNZ emphasised that the programme was not about Centrepoint but about Bert Potter and the scope and reasons for his offending. It concluded that Standard 4 was not breached.

[11]   Turning to accuracy, the broadcaster argued that the programme’s references to “members” as opposed to “children” was not a material point of fact to which Standard 5 applied. TVNZ considered that Nigel Latta’s comments were his opinion about Mr Potter based on his experience as a clinical psychologist, and that viewers would have been aware of that. However it noted that Mr Potter’s own beliefs about the benefits of sexual experiences for children were discussed by him in the programme. It concluded that the programme had not breached Standard 5.

[12]   Looking at Standard 6 (fairness), TVNZ reiterated that the programme focused on the offending and psychological make-up of Bert Potter. It maintained that the programme did not state that all children at Centrepoint were abused, but noted that the production company was careful to blur all of the children’s faces in the historical footage. No one affected by the offending was identified without their consent, it said.

[13]   With regard to Ms Kozeluh’s argument that archive footage and re-enactments were not distinguished, TVNZ emphasised that all footage of children from Centrepoint was pixellated. Some reconstructed material was used in which parts of some children’s faces were momentarily visible, it said. However, it disagreed that this was unfair to the children who grew up at Centrepoint as it would have been obvious to viewers which footage was reconstructed. TVNZ concluded that nothing shown in the reconstructed footage was unfair.

[14]   Noting that Ms Kozeluh objected to the reference to Centrepoint as a “cult”, TVNZ pointed out that the Authority had found in previous decisions that the term was not pejorative.

[15]   TVNZ emphasised that none of the children who grew up in Centrepoint were shown or named except where they had chosen to talk about their experiences, and it concluded that they were not treated unfairly. TVNZ argued that Standard 6 did not apply to Centrepoint as it was not an individual or organisation under the standard. However, it reiterated that the programme was about Bert Potter and his offending, not about Centrepoint. TVNZ declined to uphold the Standard 6 complaint.

Referral to the Authority

[16]   Dissatisfied with the broadcaster’s response, Ms Kozeluh referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[17]   Ms Kozeluh considered that, while the programme was about Mr Potter, as a result it implied many things about Centrepoint, its members and the children. She considered that TVNZ had not addressed her argument that the programme implied that the children of Centrepoint were “on tap”. The complainant maintained that the issue discussed was a controversial issue of public importance as there was continual public and media interest in Centrepoint. She said that she had offered herself as a source for the programme, but did not want to appear on screen.

[18]   Ms Kozeluh considered that viewers would have got the impression that Mr Latta had either met with Mr Potter or had somehow engaged with Centrepoint.

Authority's Determination

[19]   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 4 (controversial issues – viewpoints)

[20]   Standard 4 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.

[21]   In Bell and TVNZ,¹ the Authority found that Beyond the Darklands was a factual programme to which Standard 4 applied. In our view, this episode of the programme presented an analysis by Nigel Latta of Bert Potter and his sexual offending at Centrepoint. While this may be of historical interest to viewers, we do not consider that the programme discussed a controversial issue of current interest or of public importance.

[22]   Having reached the conclusion that the programme did not discuss a controversial issue of public importance, we find that Standard 4 does not apply in the circumstances and we decline to uphold this part of the complaint.

Standard 5 (accuracy)

[23]   Standard 5 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.

[24]   As stated above, we consider that Beyond the Darklands was a factual programme which took the form of a case study based around a psychologist's analysis of Bert Potter. Drawing on extensive interviews with people who had come into contact with Mr Potter throughout his life, including former members of Centrepoint and victims, the psychologist attempted to explain Mr Potter’s sexual offending. 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. With that in mind, the Authority now turns to consider the specific points raised by the complainant under Standard 5.

[25]   Ms Kozeluh argued that the programme should have distinguished between “former members” and “children” of Centrepoint. TVNZ was of the view that this was not a material point of fact. We agree with the broadcaster. It was not necessary for the programme to make such a distinction, and we find that viewers would not have been misled in this respect.

[26]   The complainant also contended that Mr Latta had referred to all children of Centrepoint as being victims of abuse. Having viewed the programme, we are satisfied that it was neither stated nor implied that all children of Centrepoint had been abused.

[27]   Ms Kozeluh objected to the reference to Bert Potter as a “cult leader” in the programme introduction. The presenter said, “Tonight [Nigel Latta] takes us beyond the darklands and into the mind of New Zealand’s notorious sex offender and cult leader Bert Potter.” It is not disputed that Mr Potter was the leader of Centrepoint, and we find that it was not inaccurate or misleading to refer to him as a “cult leader” given the nature of the commune.

[28]   The complainant argued that the programme as a whole was not distinguishable as comment, analysis or opinion. We note that the programme was introduced as follows:

Clinical psychologist Nigel Latta has worked with some of our most serious criminal offenders for 19 years. Tonight he takes us beyond the darklands and into the mind of New Zealand’s notorious sex offender and cult leader Bert Potter.

[29]   Further, Mr Latta was responsible for voiceovers in the programme and was shown throughout the programme giving his views. In these circumstances, we consider that it was clear that the programme consisted of Mr Latta’s opinion and his interpretation of Bert Potter’s case.

[30]   Finally, the complainant considered that the programme was misleading because it failed to distinguish between archived footage and re-enactments. We accept that the two types of footage could have been more clearly identified. However, we do not consider that viewers would have been misled or deceived in this respect.

[31]   Accordingly, we decline to uphold any part of the Standard 5 complaint.

Standard 6 (fairness)

[32]   Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[33]   In her complaint, Ms Kozeluh said that people “were unfairly identified as abused children” and that “significant viewpoints were not presented fairly”.

[34]   Standard 6 applies only to individuals who take part or are referred to in a programme. Notwithstanding one abuse victim who willingly participated in the programme, we are satisfied that no other children from Centrepoint were identified or referred to.

[35]   We have already dealt with Ms Kozeluh’s concerns about the presentation of significant views under Standard 4. In any event, we do not consider that anything in the programme, which consisted of Mr Latta’s psychological analysis and the views of the interviewees, resulted in Bert Potter or Centrepoint being treated unfairly.

[36]   We therefore decline to uphold the fairness complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
6 July 2010

Appendix

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

1.           Bonnie Kozeluh’s formal complaint – 21 March 2010

2.          TVNZ’s response to the complaint – 8 April 2010

3.          Ms Kozeluh’s referral to the Authority – 13 April 2010

4.          TVNZ’s response to the Authority – 20 May 2010

¹Decision No. 2009-052