BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint about coverage on The AM Show of proposed changes to safe zones around abortion clinics. The statements alleged to be inaccurate were comment, opinion or analysis, to which the accuracy standard does not apply. The balance standard did not apply as the separate news bulletins did not amount to a discussion; and in any event, differing perspectives from Abortion Rights Aotearoa and Voice for Life NZ were included. The fairness standard did not apply.

Not Upheld: Accuracy, Balance, Fairness

The broadcast

[1] Six news bulletins during The AM Show, broadcast on 27 April 2021 on Three, reported on proposed changes to safe zones around abortion clinics. The issue was first introduced at 6.03am:

There's hope that establishing safe areas around abortion clinics will soon be made easier. The public has until tomorrow to have a say on the Contraception, Sterilisation and Abortion Amendment Bill.

[2]  Abortion Rights Aotearoa President Terry Bellamak provided comment in three of these bulletins:

• ‘[Currently] you need an order in council on the advice of the Minister of Health and the Minister of Justice. That seems like a really lengthy, bureaucratic, useless process’. (6.03am)
• ‘People shouldn't have to stand up to bullies in order to get health care. Nobody else has to do that. There's absolutely no reason why patients receiving reproductive health care should have to do that.’ (6.33am)
• ‘Right now people are not protected from harassment outside abortion clinics or abortion services when they go to get abortion care.’ (7.03am)

[3]  The issue was raised again in the 7.30am bulletin:

Pro-life advocates are hoping a new proposed bill reforming abortion laws won't be passed. The public has until tomorrow to have a say on the Contraception, Sterilisations and Abortion Amendment Bill.

[4]  Voice For Life National President Kate Cormack provided comment in the later three bulletins:

• ‘This bill… is an unjust restriction on our right to freedom of expression, our right to peaceful freedom of assembly. It's an unnecessary legislation’. (7.33am)
• ‘Our hope is that it won't progress beyond this and that the Health Select Committee will actually listen to what the public are saying, we do believe, you know, the majority of submissions will be opposing the Bill.’ (8.04am)
• ‘The zones around abortion clinics are already safe. The people who gather and do offer help and support outside abortion clinics in New Zealand are law abiding citizens.’ (8.33am)

[5]  Some of the news bulletins were made available online with an accompanying article. As we are limited by the Broadcasting Act 1989 to considering broadcast material, our decision does not address the content of the online article.

The complaint

[6]  Right to Life New Zealand complained the broadcast ‘was inaccurate in relation to material points of fact, as it was misleading, and also lacked fairness to the truth’.

[7]  In its original complaint, Right to Life raised the accuracy and fairness standards. The broadcaster, in its response, addressed accuracy and balance. Right to Life then raised accuracy, balance and fairness in its referral to the Authority. Pursuant to section 8(1B) of the Broadcasting Act 1989, we are only able to consider the standards raised in the original complaint to the broadcaster. The High Court has clarified that in certain circumstances:¹

…it is permissible [for the Authority] to fill gaps… or cross boundaries between Code standards…but only if these things can be done within the wording, reasonably interpreted, of the original complaint, and if a proper consideration of the complaint makes that approach reasonably necessary…

[8]  We consider the original complaint to Discovery NZ Ltd impliedly raised the balance standard, as the complainant alleged other views (such as the Law Commission’s) should have been included in the item. Accordingly, consistent with the broadcaster’s approach, it is appropriate to address that now.

[9]  Right to Life identified the following statements from Ms Bellamak as inaccurate:

• ‘Right now, people are not protected from harassment outside abortion clinics.’
  • ‘This is demonstrably untrue… the Summary Offences Act 1981 provides protection against any person engaging in harassment or intimidation’.
  • The Law Commission has advised it ‘does not see a strong case for [safe zones]’ and ‘has not seen any clear evidence that the existing laws around intimidating and anti-social behaviour are inadequate’.
• ‘People shouldn't have to stand up to bullies in order to get healthcare.’
  • ‘This is slanderous and hate speech directed at peaceful and lawful men and women who motivated by love and compassion for women, pray outside abortion clinics…’
  • The complainant questioned what evidence she had for the statement noting, ‘18 District Health Boards in New Zealand have advised Right to Life in response to an Official Information Act request that they have no record of either verbal or written complaints of intimidation or harassment from women accessing abortion at their facilities, nor did they have complaints from staff accessing abortion facilities.’

[10]  Right to Life argued Ms Bellamak’s was not a suitable perspective to include in the item. It provided a variety of reasons for this. These included challenges to Ms Bellamak’s views and an argument that, based on its membership numbers, the organisation she represents is not a ‘significant’ organisation.

[11]  Right to Life also argued that in the interests of balance:

• The Law Commission’s views should have been presented, including the points noted in para [9] above and the Law Commission’s concerns that ‘legislation imposing safe zones would be infringing on the right to freedom of expression, freedom of peaceful assembly and freedom of association protected by the NZ Bill of Rights Act 1990’.
• The ‘important information on the Right to Life survey of 18 DHBs’ should have been included.

The broadcaster’s response

[12]  Discovery did not uphold the complaint for the following reasons:

Accuracy

• ‘…the comments from both Ms Bellamak and Ms Cormack were clearly identifiable as their personal opinions to which they are entitled under the Accuracy standard’.
• ‘We have not identified any material errors of fact that would have significantly misled the audience.’

Balance

• ‘…across the entire bulletin, viewers were presented with sufficient and appropriate perspectives on the issue under discussion’.
• ‘The audience had the benefit of hearing from both sides of the debate and we are satisfied were presented with enough information to form their own [views] on the topic’.

Fairness

• ‘…the Broadcast was not unfair to any participants or people referred to’.
• ‘…the individuals who were interviewed were given sufficient and appropriate opportunity to present their perspectives and the excerpts of the interviews shown fairly reflected the tenor of their views overall’.

The standards

[13]  The balance standard² states when controversial issues of public importance are discussed 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.³

[14]  The purpose of the accuracy standard⁴ is to protect the public from being significantly misinformed.⁵ It states broadcasters should make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.

[15]  The fairness standard⁶ requires broadcasters to deal fairly with any person or organisation taking part or referred to in any broadcast.⁷ It ensures individuals and organisations are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

[16]  The right to freedom of expression is an important right in a democracy and it is important that we weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.

[17]  We have watched the broadcast and read the correspondence listed in the Appendix.

Accuracy

[18]  The first question for us is whether the accuracy standard applied to the statements by Ms Bellamak. The accuracy standard applies only to statements of fact, and not to statements clearly distinguishable as analysis, comment or opinion.⁸ In our assessment of whether the aspects of the item complained about were statements of fact to which the accuracy standard applied, or whether they were distinguishable as analysis, comment or opinion, we have considered the following factors:⁹

• The comments were made by Ms Bellamak, not a newsreader in the context of a news report.
• Ms Bellamak is an advocate for abortion law reform and listeners would understand her comments were coming from her perspective.
• The subject matter of access to abortion is known to be controversial and statements about it are likely to be opinion.
• The statements complained about were rebutted in later news bulletins with comments from Voice for Life similar to those made by the complainant.

[19]  Given the context of the comments, we consider audiences would have understood them to be comment, opinion, or analysis to which the accuracy standard does not apply, so we do not uphold the complaint under this standard. 

Balance

[20]  The complainant made a number of arguments relating to whether the broadcaster should have included Ms Bellamak’s views and omitted the Law Commission’s. The balance standard requires the broadcaster to make reasonable efforts to present significant points of view on the relevant issue. Who presents those views and how they are presented, are matters of editorial discretion for the broadcaster.

[21]  The balance standard only applies where a ‘controversial issue of public importance’ is ‘discussed’ in ‘news, current affairs or factual programmes’.

[22]  We have consistently found abortion and related amendments to legislation amount to a controversial issue of public importance.¹⁰ However, due to the format of The AM Show, we consider the relevant issue was not ‘discussed’ so much as briefly reported upon. The Authority has previously found that brief, straightforward news reports do not constitute a ‘discussion’ for the purposes of the standard.¹¹ Just because there were multiple, distinct reports over the course of the programme did not change the nature of these communications from reports to a discussion. Therefore, the balance standard did not apply to this broadcast.

[23]  In any event, the three later bulletins contained an opposing viewpoint from the Voice for Life National President, which contained many of the arguments made by the complainant (refer to excerpt at paragraph [4]). Audiences were accordingly presented with differing points of view on the issue across the six news bulletins.

[24]  Therefore, we do not uphold the complaint under the balance standard.

Fairness

[25]  The fairness standard is concerned with protecting against undue harm to the dignity and reputation of any person or organisation taking part or referred to in a programme.¹² The complainant did not identify a relevant person or organisation who was harmed by the broadcast. Its concerns were better addressed under the accuracy and balance standards. The fairness standard does not apply in this case.       

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

2 August 2021    

Appendix

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

1  Right to Life NZ’s complaint to Discovery – 6 May 2021

2  Discovery’s decision on the complaint – 28 May 2021

3  Right to Life’s referral to the Authority – 29 May 2021

4  Discovery’s confirmation of no further comments – 2 June 2021

5  Discovery’s submissions on the fairness standard – 2 July 2021

6  Right to Life’s final comments – 9 July 2021

¹  See Attorney General of Samoa v TVWorks Limited, CIV-2011-485-1110 at [62]
² Standard 8 of the Free-to-Air Television Code of Broadcasting Practice
³ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁴ Standard 9 of the Free-to-Air Television Code of Broadcasting Practice
⁵ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁶ Standard 11 of the Free-to-Air Television Code of Broadcasting Practice
⁷ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁸ Guideline 9a
⁹ With reference to Guidance: Accuracy - Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 64
¹⁰ Right to Life New Zealand and Mediaworks TV Ltd, Decision No. 2019-041 at [18]
¹¹ Rose and Television New Zealand Ltd, Decision No. 2018-078 at [20]
¹² Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21