BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

[This summary does not form part of the decision.]

The Authority did not uphold a complaint about the second part of a two-part documentary, Leaving Neverland, concerning sexual abuse allegations made by two men against Michael Jackson. The Authority took into account the nature of the programme, which was clearly presented from the perspectives of the two men featured and included responses to these and similar allegations, from Michael Jackson and his lawyers. In this context, the Authority found: the broadcast would not have caused widespread undue offence or distress as contemplated under the good taste and decency standard; the balance standard did not apply as the broadcast did not address a ‘controversial issue of public importance’ for New Zealand viewers; the programme was unlikely to mislead viewers and did not breach the accuracy standard; and the fairness and discrimination and denigration standards did not apply.

Not Upheld: Good Taste and Decency, Balance, Accuracy, Discrimination and Denigration, Fairness

The broadcast

[1]  At 8.30pm on 13 and 14 January 2020, TVNZ 1 screened a two-part documentary, Leaving Neverland, concerning the sexual abuse allegations made by two men, Wade Robson and James Safechuck, against Michael Jackson.  The documentary included extended interviews with Mr Robson and Mr Safechuck and their family members, as well as footage of the men as boys with Mr Jackson. Mr Robson and Mr Safechuck presented their allegations in detail, and explained why they previously defended Mr Jackson and denied abuse.  The second part of the documentary primarily told the stories of the men’s adult lives, after the alleged abuse had taken place.

[2]  The second part of the documentary included Mr Jackson’s response (when he was alive) to earlier allegations of sexual abuse:

There have been many disgusting statements made recently concerning allegations of improper conduct on my part. These statements about me are totally false. They served a search warrant on me, which allowed them to view and photograph my body, including my penis, my buttocks, my lower torso, thighs and any other area that they wanted. It brings tears to my eyes when I see any child who suffers. I am not guilty of these allegations, but if I am guilty of anything, it is of giving all that I have to give to help children all over the world. It is of loving children of all ages and races. It is of gaining sheer joy from seeing children with their innocent and smiling faces. To my friends and fans thank you very much for all of your support. Together, we will see this through to the very end. I love you very much and may God bless you all. I love you. Goodbye.

       …

Everyone is presumed to be innocent and totally innocent until they are charged with a crime and then convicted by a jury of their peers.

[3]  It also included Mr Jackson’s lawyers’ comments regarding the sexual abuse allegations:

Reporter:          [Mr Jackson’s] lawyer called the charges, that could send Jackson away to prison for years, a big lie.

Lawyer 1:          If anybody doesn't think, based upon what's happened so far, that the true motivation of these charges in these allegations is anything but money and the seeking of money, then they're living in their own Neverland… We will land on you like a ton of bricks. We will land on you like a hammer if you do anything to besmirch this man's reputation. We will unleash a legal torrent like you've never seen.

Lawyer 2:          Wade Robson, I put him on as my witness and he was subjected to a withering cross-examination by prosecutor Ron Zonan from the Santa Barbara District Attorney's Office. I mean, Ron went after him and Ron’s a good prosecutor. He would not waver. He was adamant he was never touched. And my understanding was Safechuck repeatedly said the same thing. So, to suddenly come back years later and say, ‘we want millions of dollars, we were brainwashed, we had repressed memory, we didn't face the facts, we didn't deal with reality’, I just find very, very suspicious.

[4]  The broadcast also reported Mr Robson’s case against Mr Jackson’s estate was dismissed because Mr Robson waited too long before filing it.

The complaint

[5]  Ms Purchase complained the second part of the documentary breached the good taste and decency, balance, accuracy, discrimination and denigration and fairness standards of the Free-to-Air Television Code of Broadcasting Practice.¹ She complained on the following grounds:

• ‘Michael Jackson is dead… yet he continues to be defamed and bullied by those who seek money and power.’
• ‘[Mr Jackson] is not able to defend himself, comment or take legal action against the makers of this program.’
• ‘The Estate of Michael Jackson, his family, friends, colleagues, acquaintances, employees, charities etc were never contacted to obtain any verification or confirmation of any of the statements made.’
• ‘The program is misleading to the general public, as it is portrayed as a documentary, but very little in this program documents facts. Apart from the fact that the two men knew Michael Jackson personally.’
• ‘When a smidgeon of journalistic research is applied, the claims crumble like a house of cards. It is not accurate, and is discriminatory and denigrating.’
• ‘I am horrified that TV1 permits such a disgusting portrayal of a man who devoted his life to bringing happiness to the world.’
• ‘[Mr Jackson] was investigated by the FBI for years, his houses - the subject of surprise raids, his belongings, laptops, books and possessions seized, his body examined, his very freedom jeopardized. With absolutely zero found to incriminate him.’
• ‘[T]he justice system upon which we base our society found him innocent.’

[6]  In her referral of the complaint to the Authority, Ms Purchase raised 19 additional technical matters, in respect of both parts one and two of Leaving Neverland. However, pursuant to section 8(1B) of the Broadcasting Act 1989, we are only able to consider those matters raised in the original complaint to the broadcaster. Accordingly, those additional matters, and part one of Leaving Neverland, are not within the scope of our decision.

[7]  In considering the complaint, we have viewed a recording of the second broadcast and read the correspondence listed in the Appendix.

The broadcaster’s response

[8]  TVNZ did not uphold Ms Purchase’s complaint for the following reasons:

• Good taste and decency: The broadcast was correctly classified AO and screened at 8.30pm. Viewers were provided sufficient information, including a warning, to make an informed decision about whether they wished to view or allow their children to view such material. The broadcast would not have offended a significant number of viewers in the context of its screening.
• Balance: The allegations concerning Mr Jackson are not a controversial issue of public importance in New Zealand and, in any case, significant alternative viewpoints were presented.
• Accuracy: The allegations and stories of Mr Robson and Mr Safechuck were clearly distinguishable as comment or opinion, and therefore not subject to the accuracy standard. Their allegations were never tested in a court, so no legal determination has or can be made in respect of Mr Jackson’s innocence. Viewers were not misled.
• Discrimination and denigration: The broadcast would not have led to the denigration or discrimination of any section in the community and Ms Purchase made no specific allegations in this regard.
• Fairness: The fairness standard does not apply in respect of people who are deceased, as previously stated by the Authority.²

The standards

[9]  The good taste and decency standard (Standard 1) states current norms of good taste and decency should be maintained, consistent with the context of the programme and the wider context of the broadcast. Its purpose is to protect audience members from viewing or listening to broadcasts that are likely to cause widespread undue offence or distress or undermine widely shared community standards. The broad limit is a broadcast must not significantly violate community norms of taste and decency.³

[10]  The balance standard (Standard 8) states 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.

[11]  The accuracy standard (Standard 9) states broadcasters should make reasonable efforts to ensure any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead. Its objective is to protect the public from being significantly misinformed.⁴

[12]  The discrimination and denigration standard (Standard 6) provides protection against broadcasts which encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief.⁵

[13] The fairness standard (Standard 11) states broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The purpose of this standard is to protect the dignity and reputation of those featured or referred to in broadcasts.⁶

Our findings

[14]  Our starting point is recognising the important right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, as well as a broad range of programmes. We weigh this important right, in terms of the value and public interest in the broadcast, against the level of actual or potential harm caused by the broadcast. We may only intervene and uphold a complaint where a limitation on the right to freedom of expression is reasonable and justified, in light of the harm caused.

[15]  Here, the programme was clearly presented from the perspectives of Mr Robson and Mr Safechuck. It raised issues related to the investigation, reporting and impacts of sexual abuse. Significantly, it included Mr Jackson’s earlier response to such allegations, as well as the response of his lawyers, and gave viewers sufficient information and perspectives to make up their own minds. Overall, we have not found harm of the nature alleged in the complaint or any breach of broadcasting standards that justifies restricting the right to freedom of expression in this case.

Good taste and decency

[16]  The complainant’s main concern appears to be that the programme negatively portrayed, and ‘bullied and defamed’ Mr Jackson, in a manner likely to cause widespread offence or distress. The good taste and decency standard is typically considered in relation to  offensive language, sexual material, nudity and violence, but may also be considered in relation to content that is presented in a way likely to cause offence or distress.

[17]  Context is crucial to assessing whether the good taste and decency standard has been breached. This includes the context in which the material complained about was presented, and the wider context of the broadcast.⁷

[18]  We understand the complainant, and some other viewers, may not have agreed with the contents of this documentary or its portrayal of Mr Jackson. But that is not a sufficient reason to find the broadcast breached this standard, given the importance of protecting freedom of expression. In its context, this broadcast would not have caused widespread undue offence or distress or undermined widely shared community standards as envisaged by Standard 1. Relevant contextual factors supporting this view are:

• The broadcast was a documentary classified AO and aired at 8.30pm.
• Mr Jackson is a deceased artist who retains worldwide fame and popularity. The allegations against him have been widely covered in media.
• Sexual abuse and the communication, verification and impacts of such allegations are issues of public importance.
• The programme focused on the stories and perspectives of Mr Robson and Mr Safechuck. The treatment of the issues was sensitive and without gratuitous detail.
• It was preceded by a clear visual and verbal warning: ‘AO. This programme is rated adults only. It deals with the issue of rape. It contains disturbing material and coarse language.’
• A helpline billboard offering support for victims of rape or sexual assault was screened at the end of the broadcast.

[19]  Accordingly, we do not uphold the complaint under the good taste and decency standard.

Balance

[20]  Ms Purchase’s concern is that the programme failed to include comment from Mr Jackson’s family, friends, colleagues and employees. To trigger the balance standard and the requirement to present alternative viewpoints, the programme must amount to a ‘discussion’ of a ‘controversial issue of public importance’.⁸ An issue of public importance is something that would have a significant potential impact on, or be of concern to, members of the New Zealand public.⁹ A controversial issue is one which has topical currency and excites conflicting opinion, or about which there has been ongoing public debate.¹⁰

[21]  While it may be newsworthy and of interest to the New Zealand public, we do not consider Mr Jackson’s alleged historical sexual abuse of minors, as recounted from the perspectives of the two men featured, amounts to a controversial issue of public importance as defined above. The purpose of the standard is to ensure competing viewpoints about issues that would have a significant potential impact on New Zealand viewers, are presented to enable them to arrive at an informed and reasoned opinion.

[22]  In any event, we note the broadcast included the responses of Mr Jackson and his lawyers to allegations of sexual abuse including specifically Mr Robson’s and Mr Safechuck’s allegations (paragraph [3]). Alternative views were also widely covered in media and easily accessible to viewers around the time of broadcast.¹¹

[23]  Accordingly, we do not uphold the complaint under the balance standard.

Accuracy

[24]  Ms Purchase is concerned the broadcast misled viewers by presenting allegations which she considers to be untrue. The documentary as a whole was presented from the perspectives of the two men featured, regarding their personal views and alleged experiences with Mr Jackson.

[25]  Broadly considered, it included some material clearly distinguishable as comment or opinion, to which the accuracy standard does not apply.¹² However, it also included material clearly constituting statements of fact to which the accuracy standard does apply (for example what Mr Jackson may or may not have done).

[26]  It is not the Authority’s role to establish the truth of the allegations made in the programme. Our role is to assess whether the broadcaster made reasonable efforts to ensure the programme was accurate and not misleading. This is assessed with reference to factors including:¹³

• the source of material broadcast
• whether there was some obvious reason to question the accuracy of the programme
• whether the broadcaster presented comment, clarification or input from relevant people
• the extent to which accuracy was reasonably capable of being determined by the broadcaster.

[27]  In this case, with the passage of time and Mr Jackson’s death, the veracity of the relevant allegations is not now reasonably capable of being determined. There was no readily identifiable evidence which should have led TVNZ to doubt Mr Robson’s and Mr Safechuck’s statements, although we accept that some will not believe them.

[28]  In any event the responses of Mr Jackson and his lawyers were included in the broadcast as well as the perspectives of others that the men were making allegations for financial benefit. In these circumstances, we consider the broadcaster has made reasonable efforts to ensure the programme was not misleading and viewers were unlikely to have been misled.

[29]  Accordingly, we do not uphold the complaint under the accuracy standard.

Discrimination and denigration

[30]  The discrimination and denigration standard only applies to recognised sections of the community. As Ms Purchase’s concerns relate specifically to Mr Jackson and his family, the discrimination and denigration standard does not apply and we do not uphold this part of the complaint.

Fairness

[31 The requirement of fairness to programme participants or those referred to, does not apply in respect of people who are deceased.¹⁴ Accordingly, we do not uphold the complaint under the fairness standard.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

24 November 2020

    
Appendix

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

1  Jenny Purchase’s formal complaint – 14 January 2020

2  TVNZ’s decision on the complaint – 12 February 2020

3  Ms Purchase’s referral to the Authority – 10 March 2020

4  TVNZ’s response to the referral – 25 September 2020

¹ The Free-to-Air Television Code of Broadcasting Practice was refreshed with effect from 1 May 2020. This complaint has been determined under the April 2016 version of the Free-to-Air Television Code of Broadcasting Practice as the relevant broadcast pre-dated the 1 May 2020 version.
² Boyce and Television New Zealand Ltd, Decision No. 2006-121 at [32]
³ Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
⁴ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁵ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 15
⁶ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁷ Guideline 1a
⁸ Guideline 8a
⁹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹⁰ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹¹ Stefan Kyriazis “Leaving Neverland 'LIES' exposed: 'Wade Robson lied about more than Michael Jackson abuse'” Express (online ed, United Kingdom, 13 March 2019); Gerard du Cann “Michael Jackson superfans are convinced this footage of Wade Robson and James Safechuck smirking at each other ‘proves they’re lying about abuse’” The Sun (online ed, United Kingdom, 23 March 2019); Ryan Parry “Lawyer who took Wade Robson's deposition in Michael Jackson's child molestation trial in 2005 says the Australian dancer and his co-accuser James Safechuck are lying - simply chasing 'fame and money'” Daily Mail Australia (online ed, Australia, 6 March 2019)
¹² Guideline 9a
¹³ Guideline 9d
¹⁴ Boyce and Television New Zealand Ltd, Decision No. 2006-121 at [32].