BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 6 (fairness) – Close Up did not fairly present the reasons for the teacher’s suspension – lack of context around reasons for suspension created an unfairly negative impression of the Principal and the College – Principal and College treated unfairly – upheld

Standard 5 (accuracy) – item made unqualified statements that students were “threatened” – based on available material this was misleading as viewers were not given any context and comments should have been couched as allegations or the students’ views – use of the term “threatened” in ticker was not material to Breakfast programme as the school was not named and there was no corresponding news item – one aspect upheld

No Order

This headnote does not form part of the decision.

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Introduction

[1]  An item on Close Up reported on comments made by the Principal of Pompallier Catholic College, in a school newsletter, objecting to gay marriage. The item claimed that the Principal suspended a teacher and that students who opposed the comments were “threatened”. The item was broadcast on 29 August 2012 on TV One. During the Breakfast programme broadcast the following morning on 30 August on TV One, a news ticker ran along the bottom of the screen reading, “Whangarei teacher stood down and students threatened over supporting gay marriage bill”.

[2]  Pompallier Catholic College made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the Close Up item misrepresented the reasons for the teacher’s suspension which was unfair to the Principal, the College and the Board of Trustees. In addition, it argued that the Close Up and Breakfast broadcasts inaccurately claimed that students were “threatened”.

[3]  The issues for our determination are:

• Did the Close Up item breach the fairness standard as set out in the Free-to-Air Television Code of Broadcasting Practice?
• Did the Close Up and/or Breakfast broadcasts breach the accuracy standard as set out in the Code?

[4]  The members of the Authority have viewed recordings of the broadcasts complained about and have read the correspondence listed in the Appendix.

Nature of the programmes and freedom of expression

[5]  Close Up and Breakfast are long-running current affairs shows reporting on topical local issues, ranging from daily news stories to human interest pieces (though Close Up was no longer in production at the time of our determination).

[6]  The Breakfast ticker did not correspond to any news item during the episode, but simply ran along the bottom of the screen during an unrelated story.

[7]  The Close Up item, which focused on the Principal’s religious objections to gay marriage, as expressed in a school newsletter, had topical currency in light of the (then) upcoming vote in Parliament on The Marriage (Definition of Marriage) Amendment Bill. The item was introduced by the presenter as follows:

There’s a stand-off in Whangarei over gay marriage – and this is quite separate to any stand-off in… Parliament tonight, when MPs will vote on it for the first time – but it’s just as bitter. It’s prompted by a comment from the Principal in the Pompallier Catholic College newsletter, and it’s already led to suspensions and threats. Principal [name] lays out his objections to gay marriage under the heading “Keeping Marriage Sacred”… [our emphasis]

[8]  The Principal’s comments appeared onscreen, as the presenter read them aloud as follows:

My religious objection is aligned with church doctrine on marriage… should we become non-biased in applying faith-derived values to marriage, one could argue for polygamy… My fear is we are moving towards a society where children become an ‘entitlement’ or ‘right’ and therefore commodities… I acknowledge that possessive parents are not exclusively found in same-sex relationships, but I contend that such relations may be more disposed towards such a mind-set.

[9]  The presenter conducted a live studio interview with the suspended teacher, and a live cross interview with a former student, who voiced their objections to the Principal’s comments. While Close Up did not examine or explain in any detail the events that unfolded in response to the Principal’s comments, the crux of the item was that:

• the Principal’s comments were considered discriminatory by students and the teacher, and student(s) set up a Facebook page to object to the comments;
• the Principal unfairly curbed students’ freedom of expression rights by “threatening” student(s) so they would remove the Facebook page; and
• the Principal and the College acted unfairly, and potentially unlawfully, in suspending the teacher merely for holding an opinion that differed from the Principal’s, and for supporting students who objected to the comments.

[10]  We recognise that the item was linked to a matter of public interest – that is, the (then) upcoming vote in Parliament on legalising same-sex marriage – and in this context, the item had free speech value as it exposed community views on that topic. This value must be weighed against the level of harm alleged to have been caused by the broadcast, in terms of the underlying objectives of the relevant broadcasting standards.¹  The complaint made by Pompallier Catholic College was specific to the alleged misrepresentation of the reasons for the teacher’s suspension, and the claim students were “threatened”. It argued that the alleged inaccurate and unfair claims about how the situation was handled by the school reflected negatively on, and damaged the reputation of, the Principal, the College, and the Board of Trustees.

Was the Close Up item unfair to the Principal or to Pompallier Catholic College?

[11]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[12]  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.²

[13]  The complainant argued that the item was unfair because it misrepresented the reasons for the teacher’s suspension, suggesting he was suspended merely for holding a different opinion to the Principal. Pompallier Catholic College said that it was made known to the programme, before it aired, that the Principal could not comment on the matter, or provide it with a copy of the suspension letter, for privacy reasons. It questioned whether Close Up obtained a copy of the suspension letter before the broadcast, to give context for the teacher’s suspension, and to enable it to rebut some of the claims made by the teacher about the reasons for his suspension.

[14]  TVNZ argued that the teacher’s comments about his suspension were presented as his personal opinion, not statements of fact. It said the teacher understood that his support of students was “at least part of the reason” he was suspended. The broadcaster noted that the Principal declined an offer to appear on the programme, and it argued that his viewpoint was fairly canvassed by the presenter reading his statement.

[15]  To determine whether Close Up fairly presented the reasons for the teacher’s suspension, we asked TVNZ for further information, specifically, whether it made efforts to obtain a copy of the suspension letter, and if so, whether it could provide us with this. In response, TVNZ presented us with a letter dated 29 August 2012, without indicating whether the letter was obtained before or after the broadcast.

[16]  Having examined the suspension letter, we consider that, although the teacher’s suspension was directly related to his support for students who opposed the Principal’s comments, the underlying issues, and the seriousness of the teacher’s actions, went further than this. The letter referred to behaviour, on the part of the teacher, which challenged the order and authority of the school, and specifically, compliance with, and the enforcement of, school rules critical to the school’s effective functioning.

[17]  Despite this, the impression created by the item was that the teacher’s suspension was based solely on a difference of moral opinion in regard to same-sex marriage, and for his support of students who objected to the Principal’s comments and their grounding in traditional Catholic ideology. The item contained the following information about the reasons for the teacher’s suspension, in the form of comments from the teacher and the presenter:

• “Well, those comments weren’t well received by all at the school. Students who organised a Facebook page were threatened and a teacher who then took up their cause has been suspended and could lose his job.” (presenter, introducing the item)
  
  
• “I don’t really understand it… I requested that the Principal remove his comments as soon as I saw it on Saturday morning. I have no issue with his stance on gay marriage. I fully understand it’s a Catholic school. It wouldn’t be my opinion, but he is entitled to his…” (teacher, in response to the presenter’s question, “What was it that you did that so offended them [the College and the Principal]?”)
  
  
• “I have been suspended by the Principal, as far as I know. I am hoping that the Board of Trustees – and I teach most of their kids, and have terrific respect for them – will actually look at this and say, ‘What is going on here? Let’s get some rational logic, let’s actually look at the real underlying story here of looking after the kids, keeping them safe, and giving them a good education with Christian values.’ I support that.” (teacher)

[18]  In addition, the presenter stated, at the end of the item, “Was the school right in suspending [teacher’s name] over the gay marriage row?” [our emphasis]. Viewers were asked to vote on this question by visiting Close Up’s website, emailing the programme, or by joining the debate on Facebook.

[19]  The characterisation of the teacher’s suspension in this way, and the failure to provide context around the reasons for his suspension, created an unfair impression of the Principal and the College. The impression created, in our view, was that the Principal had acted unfairly and in contravention of free speech principles, and more importantly, that in suspending the teacher, the Principal and the College could be in breach of employment law obligations. This had the potential to be damaging to the reputation and professional standing of the Principal and the College, particularly in the absence of sufficient context or any comment in response.

[20]  We disagree with TVNZ that the reference to the Principal’s statement fairly presented the school’s position on this issue (see paragraph [14]). The statement related solely to the school’s views on same-sex couples. The Principal maintained he was unable to reveal details about the suspension, due to privacy issues. The Principal’s statement therefore did not allude to, or comment on, the reasons for the suspension, so the school did not have a reasonable opportunity to mitigate any unfairness on this point.

[21]  We are satisfied that upholding the complaint promotes the objectives of the fairness standard and would be a justifiable limit on the broadcaster’s right to freedom of expression. TVNZ could have broadcast the item without breaching the fairness standard if it had provided sufficient information and context to ensure the Principal and the College were presented in a fair and balanced light. In this respect, we note that other media outlets appeared more impartial on the topic, providing more information about the reasons for the teacher’s suspension, including his alleged encouragement to break school rules.

[22]  Accordingly, we uphold the complaint that the Close Up item was unfair to the Principal and the College in breach of Standard 6.

Was the Close Up item inaccurate or misleading?

[23]  The accuracy standard (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. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.³

[24]  The complainant argued that both broadcasts were inaccurate and misleading because they claimed that students were “threatened” in relation to setting up a Facebook page opposing the Principal’s comments. It said it had attestations from students and staff members that no students were threatened, and argued that TVNZ made no effort to verify if threats had been made.

[25]  TVNZ maintained that it was satisfied with the veracity of the claim students were “threatened” and with the use of the word “threats”.

[26]  We asked the broadcaster for further information about the basis for the statement in the item that students were “threatened” and the use of the word “threats”.

[27]  TVNZ indicated that the allegation of threats related to the teacher’s remark, in the Close Up item that the Principal “basically frightened” a student into taking the Facebook page down. TVNZ advised that it could not provide us with any further information in the absence of an undertaking the information would not be divulged to the complainant, for fear of implicating the student(s) involved.

[28]  In response, the complainant provided us with an incident report from the College’s guidance counsellor who was present at the meeting between the Principal and the student(s), explaining what occurred in relation to the Facebook incident, and maintaining that no one was threatened.

[29]  For reasons of natural justice, we did not give an undertaking to TVNZ as requested, as we were not prepared to accept any material that we could not provide to the complainant for comment. Instead we have chosen to proceed with our determination based on the information already before us.

[30]  The statements subject to complaint were made by the presenter, as follows:

• “There’s a stand-off in Whangarei over gay marriage… and it’s already led to suspensions and threats”.
• “Well, those comments weren’t well received by all at the school. Students who organised a Facebook page were threatened and a teacher who then took up their cause has been suspended and could lose his job.”

[31]  In terms of whether these were accurate “points of fact”, we have been presented with conflicting accounts from the parties which do not enable us to conclusively determine what exactly happened between the Principal and students. The key issue, in our view, is whether the item was misleading, in the sense of giving a wrong idea or impression.⁴

[32]  We have reached the view that the item was misleading in stating unequivocally that students “were threatened”.

[33]  We accept that students may well have perceived the Principal’s exercise of authority on this occasion and his request to remove the Facebook page as “threatening”. However, it is equally plausible, and understandable in our view, that the Principal and other staff members viewed the request as a legitimate exercise of authority and discipline, as could be expected in any school environment. It is clear from the information provided to us, namely the guidance counsellor’s report, that the Principal and staff present at the meeting would not categorise the Principal’s request to remove the Facebook page as a “threat”.

[34]  The item did not provide any context around what allegedly happened that amounted to a “threat”. It did not couch the statements as the students’ views, for example, by saying that students were “allegedly” threatened, or “felt” threatened. We think the statements should have been qualified in this way, and we note that some other media articles did couch the statements as allegations, while others refrained from making any mention of threats.⁵  Finally, the Principal was not given any opportunity to rebut the claims that students were threatened, because he was not informed that this allegation would be put forward in the item.

[35]  In these circumstances, we find that the broadcaster did not make reasonable efforts to ensure that the programme did not mislead. It chose to report the “threats” in absolute terms and without any context or rebuttal, and this was compounded by the item taking the angle of a moral “stand-off… over gay marriage”, and the unfair omission of the reasons for the teacher’s suspension. These were serious allegations which had the potential to worsen any damage caused to the school’s reputation and which the school had no opportunity to mitigate, and more care should have been taken.

[36]  Taking into account the objectives of the accuracy standard (see [23]), we find that the importance of the broadcaster’s right to freedom of expression was outweighed on this occasion, and we uphold this part of the complaint under Standard 5.

Other accuracy arguments

[37]  The complainant also argued in its final comment that the use of the term “suspensions” in its plural form was inaccurate and misleading because only the teacher was suspended, not students. Our role is to assess the broadcaster’s decision and we cannot determine issues that were not raised in the original complaint. Nevertheless, we are satisfied that it was obvious from the item that only the teacher was suspended, and the use of the term “suspensions” did not suggest there were multiple suspensions or that students had been suspended. Viewers would not have been misled in the context of the item as a whole.

Was Breakfast inaccurate or misleading?

[38]  As noted above, the Breakfast broadcast comprised a news ticker running along the bottom of the screen reading, “Whangarei teacher stood down and students threatened over supporting gay marriage bill.”

[39]  TVNZ argued that because the ticker primarily consisted of alphanumeric text, it was not a “programme” as defined in section 2 of the Broadcasting Act 1989, and therefore not subject to the complaints process.⁶  We reject this submission; the ticker clearly formed part of the Breakfast programme and was not the type of content excluded from the definition of “programme” in the Act.⁷

[40]  We asked the broadcaster for further information about the ticker, specifically, whether there was a news item corresponding to the ticker, broadcast during the same episode – in other words, whether any context was given for the ticker, within the programme. TVNZ advised there was no news item in the episode corresponding to the information conveyed in the ticker and that the ticker was broadcast independently, during an unrelated item.

[41]  As the ticker did not correspond to any news item in the episode, and neither the College nor the teacher was named, we consider that the content of the ticker was not material in the context of the Breakfast programme. Only viewers who had seen the Close Up item the night before could have garnered any real meaning from the ticker in isolation, as it did not link the information with the school. In any case we think the complainant’s concerns about the accuracy of the claims have been adequately addressed in relation to the Close Up broadcast.

[42]  Accordingly, we decline to uphold this part of the complaint.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Close Up on 29 August 2012 breached Standard 5 (accuracy) and Standard 6 (fairness) of the Free-to-Air Television Code of Broadcasting Practice.

The Authority declines to uphold the complaint about the item on Breakfast broadcast on 30 August 2012.

[43]  Having upheld the 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 Orders

[44]  Pompallier Catholic College submitted that the broadcaster should be ordered to broadcast a statement, including a summary of the decision and an apology to the Principal, staff and Board of Trustees, and that this should be linked to the on-demand item on TVNZ’s website. It said the apology should acknowledge no student was threatened or suspended and the teacher was not suspended for a difference of opinion with the Principal. It submitted that an apology and statement also be published in the New Zealand Herald and The Northern Advocate. The complainant considered that costs to the Crown in the sum of $2,000 was appropriate, and also asked to be compensated for $2,000 it incurred in bringing the complaint, based on 20 hours at $150 of school time used.

[45]  TVNZ said it recognised that the complainant felt aggrieved at how the item was presented, and advised that the programme page for this item would provide a link to the Authority’s decision. It did not consider that a statement or apology was appropriate in the circumstances, noting that Close Up was no longer on air which meant a statement would not attach to the programme and would be meaningless without providing viewers with context of the original story.

[46]  The broadcaster submitted that costs were only available to reimburse legitimate legal costs or where the Authority found a breach of privacy; it did not consider that a monetary order should be made to cover the complainant’s apparent costs associated with bringing the complaint. Nor did it consider that costs to the Crown were warranted, saying the breach was not of a level which could be described as a “significant departure from programme standards”. TVNZ concluded that publication of the decision was sufficient.

Authority’s Decision on Orders

[47]  Having considered the parties’ submissions on orders, we are satisfied that publication of this decision is sufficient to correct the two upheld aspects – namely, the omission of context around the reasons for the teacher’s suspension, and the unequivocal statement that students “were threatened”, rather than “allegedly threatened”. We do not think a statement or apology is warranted, or that the breaches were serious enough to warrant publication in other media, or to penalise the broadcaster with a fine. The essence of the story was reflected in extensive coverage by other media at the time of the TVNZ broadcast, so the impact of any statement – especially when, as pointed out by TVNZ, Close Up is no longer on air – would be minimal.

[48]  In terms of the complainant’s submission it should be reimbursed for the costs of bringing this complaint, we note that the Broadcasting Act gives the Authority power to order costs or apportion costs among the parties as it sees fit; these are not limited to legal costs. The Authority’s practice note on Costs Awards lists a number of factors to consider in determining whether to award costs, including the complexity and number of issues raised, the need for the complainant to have incurred costs to the extent that costs were incurred or at all, and the amount of costs incurred.⁸

[49]  We are not satisfied that 20 hours at $150 an hour amounted to reasonable costs. The complaints process is designed to be informal and inexpensive, though necessarily all complainants incur some cost, usually in time spent rather than financially. While this complaint has taken some time to be resolved, the facts of the case and the key issues were not, in our view, overly complex and did not require lengthy submissions or a wealth of supporting documents.

[50]  In all the circumstances, we find that publication of this decision is sufficient and that no order is warranted. We do however agree that the online version of the Close Up item should carry a link to this decision for as long as the item is available.

Signed for and on behalf of the Authority

Peter Radich
Chair
2 October 2013

Appendix

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

1           Pompallier Catholic College’s formal complaint – 19 September 2012

2          TVNZ’s response to the complaint – 17 October 2012

3          Pompallier Catholic College’s referral to the Authority – 5 November 2012

4          TVNZ’s response to the Authority – 27 March 2013

5          Pompallier Catholic College’s final comment – 8 April 2013

6          TVNZ’s final comment – 6 May 2013

7          TVNZ’s response to the Authority’s request for further information – 24 May 2013

8          Pompallier Catholic College’s response to the Authority’s request for further information –
           10 June 2013

9          Pompallier Catholic College’s submissions on provisional decision and orders – 27 August 2013

10        TVNZ’s submissions on provisional decision and orders – 3 September 2013

11        Further comments from Pompallier Catholic College – 4 September 2013

²Commerce Commission and TVWorks Ltd, Decision No. 2008-014

³Bush and Television New Zealand Ltd, Decision No. 2010-036

⁴Attorney General of Samoa v TVWorks Ltd PDF1.92 MB CIV-2011-485-1110 at paragraph 98 per Williams J

⁵See, for example, “Pompallier college teacher suspended for same gender marriage stance”, http://cathnews.co.nz/2012/08/31/pompallier-college-teacher-suspended-for-same-gender-marriage-stance/ and “Teacher suspended after supporting pro-gay protest”, http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10830567.

⁶The broadcaster sought to rely on the Authority’s decision in Wylie and Television New Zealand Ltd, Decision No. ID2011-168.

⁷See section 2(b) of the Broadcasting Act 1989

⁸Practice Note: Costs awards in favour of complainants, Broadcasting Standards Authority, June 2012