BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Sensing Murder – two psychics attempted to uncover information about a man’s disappearance in 1985 – allegedly in breach of accuracy standard

Findings
Standard 5 (accuracy) – factual information contained in the programme was accurate – psychics’ commentary about the murders was presented as their own perspective – factual material clearly distinguished from opinion, analysis and comment – no evidence viewers were misled – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An episode of Sensing Murder, broadcast on TV2 at 8.30pm on 11 March 2010, considered the disappearance of a man in 1985. His body was never found, and his family wanted to know what had happened to him.

[2]   In the first part of the programme, information was presented about the circumstances of the man’s disappearance, through interviews with the man’s family and comments about the police’s work on the case.

[3]   In the second part of the programme, the programme employed two psychics to provide information about the case. The presenter described how they were chosen and the conditions under which the psychics were given the opportunity to obtain the information. The psychics were shown giving comments and insight on what they believed had happened to the man and why, and they travelled to the area in which he had lived and from which he had disappeared.

Complaint

[4]   Allan McPherson made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the programme series, and in particular the 11 March episode, breached Standard 5 (accuracy) for the following reasons:

• the programme was portrayed as factual
• the psychics were shown supposedly communicating with a dead person and obtaining detailed information about him and the circumstances surrounding his death
• TVNZ should have assumed that the psychics “do NOT” have their claimed abilities unless and until properly controlled tests supported another view
• the psychics’ abilities were unlikely to be genuine and TVNZ should have known this
• scientific evidence does not support the claim that communication with dead people is possible
• the psychics’ actions on the programme were not distinguishable from trickery
• the psychics’ actions outside of the programme did not support their genuineness
• there were other means for the psychics to obtain their information more feasible than relying on communication with dead people
• the producers had not taken simple actions to minimise the possibility of “cheating”; they provided plenty of opportunities for the crew and the psychics to cheat
• Sensing Murder rules lacked credibility and its procedures were poor
• the psychics had not provided any useful information to the police over several years and series of Sensing Murder
• material points of fact were not disclosed to viewers
• viewers were therefore likely to be misled by the programme.

Standards

[5]   Standard 5 and guideline 5a of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. They provide:

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.

Guideline 5a

The accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

Broadcaster's Response to the Complainant

[6]   TVNZ noted that the Authority had found in relation to a previous complaint about Sensing Murder¹that the psychics’ comments were clearly their personal opinions on, and analyses of, the person’s death and that “viewers were simply presented with an account which they could choose to believe or not”.

[7]   TVNZ considered that the present complaint was analogous. It maintained that the comments from the psychics were clearly presented as their opinion, which was permitted under the standard, and that their comments and descriptions were attributed to them throughout the programme. It noted that the programme had a well-known format and considered that “viewers would be well versed now in the way the programme progresses and the likely content”.

[8]   Further, the broadcaster considered that:

...there is an expectation in New Zealand society that programmes about mediums are told from a particular perspective. As long as there have been mediums there have been sceptics – people who do not believe what is being shown and said. This discussion on whether or not deception is occurring has been ongoing for centuries. Therefore there is considerable knowledge in the community about whether or not mediums can and do speak to the dead. The audience is already well versed in the majority belief that what is happening is not real.

[9]   TVNZ maintained that Sensing Murder was open about the methodology used. It said that, while the complainant had claimed that the psychics obtained much of their information in a way other than that implied in the programme, he had not supplied any evidence to support these claims. Accordingly, the broadcaster concluded that there was no reasonable basis for finding that the programme was misleading in this respect and it declined to uphold the complaint.

Referral to the Authority

[10]   Dissatisfied with the broadcaster’s response, Mr McPherson referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. He reiterated his view that the entire series had breached the accuracy standard and therefore considered that a stronger penalty was warranted if his complaint was upheld, though he accepted that the Authority’s determination would focus on the 11 March programme.

[11]   Mr McPherson said that the reasons for TVNZ’s decision were not clear and he considered that the basis of his complaint had not been addressed. He maintained that viewers were likely to be misled into believing that the portrayal of the psychics’ communication with dead people was accurate. Mr McPherson disagreed that he had not provided any evidence to support the claims made in his original complaint. In addition, TVNZ did not disclose that the portrayed psychic ability was not supported by scientific evidence, he said, or that the psychics had not been subjected to properly controlled tests.

Authority's Determination

[12]   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.

[13]   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. Sensing Murder presented factual information about the man who had disappeared and the attempts that were made by police to investigate what had happened to him. We therefore consider that Sensing Murder was “factual programming” for the purposes of Standard 5.

[14]   Mr McPherson’s main concern was that the programme presented the psychics’ abilities as genuine which would have misled viewers. In our view, the commentary provided by the psychics was not factual material for the purposes of Standard 5. Guideline 5a to the accuracy standard states that:

The accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.

[15]   In our view, the psychics’ comments were obviously their personal opinions on, and analyses of, the circumstances surrounding the man’s disappearance. Viewers were simply presented with an account from the psychics which they could choose to believe or not. We note that the programme referred to other explanations for the man’s disappearance such as that he had committed suicide or had become lost in the bush. Further, we agree with the broadcaster that the format of the programme is now well-known, and that reasonable viewers would be aware that the legitimacy of psychic abilities has been debated for a long time.

[16]   In these circumstances, we find that viewers were not likely to have been misled and we decline to uphold this part of the complaint.

[17]   Mr McPherson also complained about the programme’s procedures, testing methods and safeguards against “cheating”. In our view, he has not provided any evidence to support these claims. We therefore have no reasonable basis on which to find that the programme was misleading in this respect, and we decline to uphold these parts of the complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
5 August 2010

Appendix

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

1.           Allan McPherson’s formal complaint – 24 March 2010

2.          TVNZ’s response to the complaint – 23 April 2010

3.          Mr McPherson’s referral to the Authority – 3 May 2010

4.          TVNZ’s response to the Authority – 23 June 2010

¹Gadgil and Television New Zealand Ltd, Decision No. 2007-119