BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An item on The Nation examined the arguments of those in support of amending the legislation governing abortions in New Zealand. The item included interviews with women who had been through the process of obtaining an abortion, and featured comments from various other advocates for changing the law. The Authority did not uphold a complaint that this item was unbalanced because it did not include arguments opposed to the law change and decriminalising abortion in New Zealand. While the item discussed a controversial issue of public importance (triggering the requirements of the balance standard), it was narrowly focused on technical aspects of the current law governing how abortions are administered in New Zealand, and clearly approached the topic from the perspective of those in support of changes to the process for obtaining an abortion. The item did not examine the moral and ethical reasons for and against abortion itself, but rather the legislation which governs the process of procuring an abortion. As such, viewers would not have expected to be presented with the full range of views on abortion, including moral reasons against decriminalising abortion.

Not Upheld: Balance  

Introduction

[1]  An item on The Nation examined the arguments of those in support of amending the legislation governing abortions in New Zealand. The item was introduced by the presenter as follows:

New Zealand’s abortion laws have been in place since 1977 and critics say an update is well overdue. Terminating a pregnancy is still a crime unless approval is given by two doctors, usually on the grounds of a risk to the mental health of the mother. The Government says the law is fine as it is but calls for change are coming from many quarters.

[2]  The item included interviews with women who had been through the process of obtaining an abortion, and featured comments from a reproductive rights advocate, the President of the Abortion Law Reform Association of New Zealand, the Chairwoman of the Abortion Supervisory Committee, the Justice Minister and a Green MP. Aside from the Justice Minister, who said that abortion law reform was not a top priority for the Government, those who commented were in favour of law reform as to the process of obtaining an abortion.

[3]  Right to Life New Zealand complained that this item was unbalanced, as it did not include arguments opposed to the law change. It submitted that the item failed to address the fundamental question of whether New Zealand should decriminalise abortion.

[4]  The issue raised in Right to Life’s complaint is whether the broadcast breached the balance standard, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[5]  The item was broadcast on 8 April 2017 on Three. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Was the item sufficiently balanced?

[6]  The balance standard (Standard 4) states that 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. The standard exists to ensure that competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.

[7]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.¹

The parties’ submissions

[8]  Right to Life submitted that:

• The title of the item, ‘Is it time for abortion law reform’, suggested that the item would offer arguments both for and against changes to the law.² The item only provided arguments for change.
• It was imperative that New Zealanders first asked the ‘fundamental question’, ‘what legal protection do we wish to give to the lives of New Zealanders in the first nine months of life in the womb?’
• The viewpoint missing from the item was that decriminalisation of abortion would amount to ‘a declaration by the state that the unborn child is not a human being and is not the bearer of human rights including a right to life’.

[9]  MediaWorks submitted that:

• The perspective of the broadcast was clearly signalled – it was not about the moral and ethical debate around abortion itself, ‘but about the legislation which governs the process of procuring an abortion’.
• The item included a range of viewpoints.
• The Authority has previously recognised that ‘long-running “moral” issues’, such as euthanasia and abortion, have an ongoing period of current interest. The moral and ethical arguments relating to abortion are widely known and it was not necessary for the broadcast to include them.

[10]  In response, Right to Life submitted that the viewpoints presented during the item were all strongly in favour of abortion law reform and no pro-life organisation was invited to put a case against decriminalisation during the item.

Our analysis

[11]  Our task in determining this complaint is to weigh the value of the item, as well as the broadcaster’s right to freedom of expression, and the audience’s right to receive information, against the level of actual or potential harm that might be caused by the broadcast. We consider the item subject to complaint had high value in terms of the exercise of freedom of expression and carried public interest, as it discussed a complex and contentious legal issue in New Zealand society. This value must be weighed against the level of harm alleged to have been caused by the broadcast. In this case, the complainant has argued that viewers were not provided with alternative viewpoints to enable them to form their own views about the topic discussed.

[12]  We accept that abortion and related amendments to legislation amount to a controversial issue of public importance. Whether abortion should be decriminalised is an issue that impacts on, and is of concern to, many New Zealanders.

[13]  However, we consider this item was narrowly focused on one aspect of the debate surrounding abortion, and this was clearly signalled from the outset. The item examined the current law governing how abortions are administered in New Zealand, and clearly approached this topic from the particular perspective of those in support of changing the law and making the process of obtaining an abortion less complicated and lengthy.

[14]  The item was therefore focused on New Zealand’s abortion law as it currently stands, in which abortion is illegal but available in specific circumstances. The item covered the technical legal issues, such as unclear or outdated language in legislation, and the delays in the process which could result in medical risk. It did not examine the moral and ethical reasons for and against abortion itself, but rather the current legislation which governs the process of procuring an abortion in New Zealand.

[15]  In these circumstances, we do not consider that viewers would have expected to be presented with the full range of views on abortion, including the moral reasons against abortion being legalised, or that they would have been left uninformed or unable to form their own views about the topic discussed. The topic of abortion, and particularly abortion law reform, is an ongoing and regularly discussed issue and viewers of The Nation could reasonably be expected to have a level of awareness of significant arguments in the debate.³

[16]  We therefore do not consider that the broadcaster’s right to freedom of expression should be limited in this case, and we do not uphold the complaint under Standard 8.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
9 August 2017  

Appendix

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

1       Right to Life’s formal complaint – 10 April 2017
2       MediaWorks’ response to the complaint – 18 April 2017
3       Right to Life’s referral to the Authority – 1 June 2017
4       MediaWorks’ confirmation of no further comment – 26 June 2017

¹ See Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18.

² This title did not appear during the broadcast but is the headline to the corresponding Newshub online article: http://www.newshub.co.nz/home/shows/2017/04/is-it-time-for-abortion-law-reform.html. 

³ In a previous decision the Authority noted that The Nation, a show that canvasses challenging opinions and ideas, is likely to attract a discerning audience: Lee and MediaWorks TV Ltd, Decision No. 2016-044 at [22]