BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Law and Order – person with mental illness portrayed as violent, unpredictable and evil – inaccurate – unfair – stereotype

Findings
Standard G1 – fiction – no uphold

Standard G6 – fiction – no uphold

Standard G12 – 9.30pm not usual children’s viewing time – decline to determine

Standard G13 – dramatic work – no uphold

Standard G20 – fiction – no uphold

This headnote does not form part of the decision.

Summary

[1] The murder of an eight-year-old boy and subsequent investigation was dramatised in an episode of Law and Order broadcast on TV3 at 9.30pm on 15 December 2001. It was disclosed that he was killed by two girls (aged 13 and 10) and at the trial, the prosecution argued that the younger girl was a "sociopath", while the defence argued that she had "frontal lobe damage" following an accident, and had suffered ongoing abuse.

[2] On behalf of the Mental Health Foundation of New Zealand, Heidi Dragicevich, Manager of the Project to Counter Stigma and Discrimination Associated with Mental Health, complained to TV3 Network Services Ltd (the broadcaster). She said that the programme was inaccurate, unsuitable for children, unbalanced and unfair as it "perpetuated the myth that people with experience of living with mental illness are violent, unpredictable and evil".

[3] In response, TV3 pointed out the programme was fictional and the story did not malign people with a mental illness. It declined to uphold the complaint.

[4] Dissatisfied with TV3’s decision, the Foundation referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaint.

Decision

[5] The members of the Authority have viewed a tape of the item complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[6] The murder of an eight-year-old boy and subsequent investigation was dramatised in an episode of Law and Order broadcast on TV3 at 9.30pm on 15 December 2001. It was shown that he was killed by two girls (aged 13 and 10) and, at the trial, the prosecution argued that the younger girl was a "sociopath", while the defence argued that she had "frontal lobe damage" following an accident, and had suffered ongoing abuse.

The Complaint

[7] On behalf of the Mental Health Foundation of New Zealand, Heidi Dragicevich, Manager of the Project to Counter Stigma and Discrimination Associated with Mental Health, complained to the TV3 Network Services Ltd (the broadcaster).

[8] The Foundation considered that:

… the programme [was] offensive as it gave an unbalanced view of a person (in this case a child of 10 years old) with experience of living with a mental illness. The programme depicted her as an evil killer with an incompetent and bad mother.

[9] The Foundation argued that the broadcast breached the standards relating to balance, fairness, accuracy, the protection of children, and the discrimination against people with a mental disorder.

[10] Such programmes, the Foundation wrote:

perpetuate the myths that people with experience of living with mental illness are violent, unpredictable and evil.

[11] Noting that one in five people experienced mental illness at some stage of their lives, the Foundation maintained that programmes such as the one complained about, perpetuated discrimination against people with mental illness.

The Standards

[12] The broadcaster assessed the complaint against the standards nominated by the complainant. The first four require broadcasters in the preparation and presentation of programmes:

G1   To be truthful and accurate on points of fact.

G6   To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

G12  To be mindful of the effect any programme may have on children during their normally accepted viewing times.

G13  To avoid portraying people in a way which represents as inherently inferior, or is likely to encourage discrimination against, any section of the community on account of sex, race, age, disability, occupational status, sexual orientation or the holding of any religious, cultural or political belief. This requirement is not intended to prevent the broadcast of material which is:

i) factual, or

ii) the expression of genuinely-held opinion in a news or current affairs programme, or

iii) in the legitimate context of a humorous, satirical or dramatic work.

[13] The other standards nominated by the complainant read:

G20  No set formula can be advanced for the allocation of time to interested parties on controversial public issues. Broadcasters should aim to present all significant sides in as fair a way as possible, and this can be done only by judging every case on its merits.

G21  Significant errors of fact should be corrected at the earliest opportunity

The Broadcaster’s Response to the Complainant

[14] TV3 explained that the series Law and Order looked at crime and justice from the perspective of both the police and the prosecutors. In the episode complained about, the prosecutor argued that a 10 year old girl was a "sociopath" who could not be rehabilitated, while the defence maintained that she had suffered frontal lobe damage in an accident and was now subject to on-going abuse, but that she could be rehabilitated in time.

[15] Turning to the standards, TV3 believed that standard G1 did not apply to a fictional programme. It argued:

As it is a drama, there are no "points of fact" which demand truth and accuracy.

[16] As for standard G6, TV3 again maintained that it was not necessary to show balance, impartiality and fairness in a programme which was clearly fiction.

[17] TV3 did not accept that standard G12 was relevant as it did not regard 9.30pm on Saturday evenings as a "normally accepted" viewing time for children.

[18] As for standard G13, TV3 stated that the programme made clear that the girl was "living with a mental illness", but it did not malign people with a mental illness. Moreover, the broadcast was exempt from the standard in view of the provision in standard G13 (iii).

[19] TV3 also argued that standards G20 and G21 were not applicable to a fictional programme and it declined to uphold the complaint.

The Referral to the Broadcasting Standards Authority

[20] In the referral of its complaint to the Authority, the Foundation disputed TV3’s argument that a number of standards did not apply to the programme because it was "a purely fictional programme". The Foundation considered that the programme was "a fairly accurate portrayal of the justice system in the United States".

[21] In regard to standard G1, the Foundation argued that the line in the credits which stated "This story is fictional. No actual person or event is depicted", was insufficient to dismiss the contents as "mere fiction".

[22] Under standard G6, the complainant maintained that it was a common stereotype, but highly controversial, to portray people with mental illness as "unpredictable, premeditating murderers who are evil".

[23] Turning to standard G13, the complainant wrote:

Her "mental illness" was used in an attempt to convict her. It was one of the key pieces of evidence to show that she should not be allowed back in the community. Her mother had been accused of not seeking appropriate help for her daughter because of this and prior events. Without the mention of mental illness there would not have been such a controversial case. Was she mad or just bad, and this programme depicted her as mad and bad and let back into the community (this is a common fear that the public hold, that all mentally ill people are evil killers and shouldn’t be allowed to live in the community). Since one in five people will experience mental illness it is clearly unbalanced and encourages discrimination against a vulnerable sector of society who are trying to recover back in the community.

[24] The complainant then referred to the provision in the Broadcasting Act which enables standards to be developed relating to the protection of children.

[25] Because the programme portrayed a child who had experienced a mental illness in a discriminatory way, the Foundation stated a programme such as Law and Order nullified much of the work done to counter discrimination associated with mental illness.

[26] The complainant then contended that an on-air apology was appropriate. Moreover, the Foundation sought a process whereby the television broadcasters would refer to the Foundation all programmes for evaluation which were potentially discriminatory toward people experiencing mental illness.

The Complainant’s Final Comment

[27] Noting that there was an explicit reference to the child as "a premeditated evil killer looking for her next victim", the Foundation contended that programmes such as Law and Order consistently misrepresented people with mental illness.

The Authority’s Determination

[28] The Foundation complained that the programme Law and Order broadcast on 15 December 2001 was offensive as it gave an unbalanced view of a child with a mental illness. The broadcast was considered by the complainant to have breached standards, among others, relating to accuracy, balance and discrimination.

[29] On the basis that Law and Order was a fictional programme, TV3 argued that a number of the standards nominated by the complainant did not apply.

[30] The Authority acknowledges that programme genres change, and that there are some broadcasts which are neither clearly fiction or fact. Accordingly, it is necessary for it to examine each programme complained about to assess the applicability of specific broadcasting standards.

[31] The Authority notes that Law and Order included the following statement among the programme credits:

This story is fictional. No actual person or events is depicted.

Further, the credits for the programme included a list of actors who had participated in the episode.

[32] Taking these characteristics of the programme into account and having viewed the programme, the Authority records that it concludes that the episode of Law and Order broadcast on 15 December was fictional.

[33] As Law and Order was a fictional programme which was not dealing with real persons or events, the Authority considers that it does not breach the requirement of standard G1, relating to factual accuracy, or standard G6 which requires balance, fairness and impartiality in a programme dealing with controversial issues.

[34] Moreover, it does not breach standard G13 relating to encouraging denigration or discrimination as the Authority has stated on a number of occasions that there is a high threshold to be achieved for a breach occurs. That threshold was not attained. In view of the finding regarding the fictional nature of the programme, standards G20 and G21 do not apply.

[35] The Foundation complained that the programme breached the standards in s.21 of the Broadcasting Act relating to the protection of children.

[36] TV3 interpreted this aspect as an alleged breach of standard G12 which refers to the normally accepted viewing times of children. It did not uphold this aspect on the basis that 9.30pm was not a normal viewing time for children.

[37] When referring the complaint to the Authority, the Foundation repeated its reference to s.21 of the Act. Section 21(1)(e) of the Act states that one of the functions of the Authority is to encourage the development of codes relating to-

(i) The protection of children.

[38] As this provisions allows standards to be developed, but is not a standard in itself, the Authority declines to determine this aspect.

[39] In conclusion, the Authority finds that the broadcast of Law and Order broadcast at 9.30pm on 15 December 2001 TV3 did not breach any of the nominated standards.

[40] The Authority also observes that to find a breach of broadcasting standards on this occasion would be to interpret the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards which it considers is consistent with and give full weight to the provisions of the New Zealand Bill of Rights Act.

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

Signed for and on behalf of the Authority

Judy McGregor
Member
24 April 2002

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint. The complaint was signed by Ms Heidi Dragicevich, Project Manager of the Mental Health Foundation Project to Counter Stigma and Discrimination Associated with Mental Illness.

1. The Mental Health Foundation’s Complaint to TV3 Network Services Ltd – 18 December 2001
2. TV3’s Response to the Complainant – 11 January 2002
3. The Complainant ’s Referral to the Broadcasting Standards Authority – 8 February 2002
4. TV3’s Response to the Authority – 21 February 2002
5. The Complainant’s Final Comment – 11 March 2002