BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

A complaint that a segment on The Project which discussed the delay in abortion legislative reform and the current process for obtaining a legal abortion in New Zealand was discriminatory, unbalanced and misleading was not upheld. The Authority found that the item did not breach the discrimination and denigration standard as people who are opposed to this reform and ‘the unborn’ do not amount to recognised sections of the community for the purposes of the standard. The Authority also found the item clearly approached this topic from a particular perspective and that viewers could reasonably be expected to have a level of awareness of significant arguments in the debate.

Not Upheld: Discrimination and Denigration, Balance, Accuracy

The broadcast

[1]  An episode of The Project included an interview with the CEO of Family Planning, Jackie Edmund, on the subject of abortion law reform. Referring to a poll indicating that 30% of New Zealanders oppose abortion law reform, Jessie Mulligan asked Ms Edmunds ‘Why do you think that is? Surely they’re not all hard core religious types and weirdos’.

[2]  The broadcast featured brief comment from Justice Minister Andrew Little who stated the abortion reform process had hit an ‘impasse’, followed by an interview with Ms Edmund, who gave her thoughts on why this impasse had occurred and set out the current process for getting a legal abortion in New Zealand.

[3]  The programme was broadcast at 13 March 2019 on Three. In considering this complaint, we have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The complaint

[4]  Right to Life complained that the broadcast breached the discrimination and denigration, balance and accuracy standards of the Free-to-Air Television Code of Broadcasting Practice for the following reasons:

Discrimination and denigration

• Mr Mulligan’s statement denigrated those who are opposed to abortion.
• This statement was discriminatory as it ‘seeks to silence and deny the right of those who are opposed to abortion to be heard.’
• ‘Opposition to the violence of abortion is not a religious issue, one does not have to be religious to be opposed to violence against women and their unborn.
• ‘The item confirms and perpetuates the ultimate discrimination against the unborn that only those who are wanted have a right to life and those who are classified as “unwanted” may be killed.’

Balance

• The item lacked balance as it was evident all the hosts of The Project were in favour of the decriminalisation of abortion.
• One of the hosts shared her story of having an abortion on the broadcast. A woman who has had an abortion and then regretted it and is now opposed to the decriminalisation of abortion should have been interviewed for balance.
• An opposition MP who opposes the decriminalisation of abortion should have been interviewed to balance Hon Andrew Little’s comments.
• A person from the ‘pro-life movement’ should have been interviewed to balance Ms Edmund’s ‘false statements’ about how the current abortion legislation is a human rights violation.
• The broadcast should have shown a ‘pro-life’ protest as opposed to the one in the broadcast to achieve balance.

Accuracy

• The broadcast was misleading as it ‘promoted the proposition that abortion should not be in the Crimes Act without addressing why abortion is in the Crimes Act.’

The broadcaster’s response

[5]  MediaWorks submitted the broadcast did not breach broadcasting standards for the following reasons:

• Mr Mulligan’s characterisation of opponents to abortion law reform amounted to an expression of opinion, which was presented in the context of serious comment and analysis. Further, although his phrasing was indelicate, it did not carry a level of condemnation sufficient to find a breach of the discrimination and denigration standard.
• The broadcast’s perspective was clearly signalled and viewers would not have expected a wide range of viewpoints in relation to the issue of abortion. In any case, it is reasonable to expect that viewers of The Project would already be aware of the significant perspectives that exist in relation to the issue, which is a prominent and long running matter of public debate.
• The issues the complainant raised under the accuracy standard are matters of analysis, comment and opinion to which the accuracy standard does not apply.

The standards

[6]  The discrimination and denigration standard (Standard 6) protects against broadcasts which encourage the denigration of, or discrimination against, 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.

[7]  The balance standard (Standard 8) 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.

[8]  The accuracy standard (Standard 9) 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 being significantly misinformed.¹

Our analysis

[9]  In New Zealand we value the right to freedom of expression. Accordingly, when we consider a complaint that a broadcast has breached broadcasting standards, we weigh the value of the programme, and the broadcaster’s right to freedom of expression, against the level of actual or potential harm that might be caused by the broadcast. We recognise the value of robust political discourse in the media and the media’s role of providing balanced and accurate reporting on issues of personal and political importance. This contributes to an informed and engaged public, which is critical to a free and democratic society.

Discrimination and denigration

[10]  The discrimination and denigration standard states that ‘broadcasters should not encourage discrimination against, or denigration of, any section of the community… as a consequence of legitimate expression of religion, culture or political belief.’ The standard applies only to recognised ‘sections of the community’ which is consistent with the grounds for discrimination listed in section 21 of the Human Rights Act 1993.²

[11]  We acknowledge that people who oppose the legalisation of abortion are opposed for a multitude of reasons, some religious, some cultural, some philosophical and others. Taking into account the wide range of rationales and world views behind people’s decisions with respect to the legalisation of abortion, we do not consider people who oppose the legalisation of abortion amount to a ‘recognised section of the community’ as intended by the discrimination and denigration standard.³

[12]  Some people’s opposition to the legalisation of abortion may be a legitimate expression of their religion, culture or political belief. However, Mr Mulligan was challenging the position itself, rather than a particular religion, culture or political belief.

[13]  With regard to the complainant’s submission that the item perpetuated discrimination against ‘the unborn’, we also do not consider the unborn to amount to a ‘recognised section of the community’ as intended by the discrimination and denigration standard.

[14]  Finally, we note a high level of condemnation, often with an element of malice or nastiness, will be necessary to conclude that a broadcast encouraged discrimination or denigration in breach of the standard.⁴ While Mr Mulligan’s comment was flippant and had the potential to cause offence or upset some people, comments will not breach the standard simply because they are critical of a particular group, because they offend people, or because they are rude.⁵ It was clear that Mr Mulligan’s comment did not contain the level of condemnation required to constitute a breach of this standard.

[15]  Accordingly we do not uphold the complaint under the discrimination and denigration standard.

Balance

[16]  The balance standard only applies to situations where a ‘controversial issue of public importance’ is ‘discussed’ in ‘news, current affairs or factual programmes’.⁶ Accordingly, when we consider a balance complaint, the first question is whether the broadcast met those three requirements.

[17]  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.⁷ A controversial issue will be one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁸

[18]  We have consistently found that abortion and related amendments to legislation amount to a controversial issue of public importance.⁹ It is also clear that The Project is a news and current affairs programme and we consider that the issue was ‘discussed’ as contemplated by the standard.

[19]  However, the assessment under this standard must take into account the way in which the programme was presented (ie did it purport to be a balanced examination of an issue or was it clearly signalled as approaching the topic from a particular perspective).¹⁰ We consider this item was focused on potential legislative reform and the perceived delay of this reform. This was signalled from the outset. The item 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. Though it briefly touched on reasons why some people were opposed to abortion, it did not purport to be a detailed examination of the possible moral and ethical reasons for and against abortion itself.

[20]  The balance standard does not require that every possible view on such a complex issue be contained within one item. The standard allows for balance to be achieved over time ‘within the period of current interest’¹¹ and abortion legislation reform as an issue is the subject of consistent media attention and public debate.

[21]  In these circumstances, we do not consider that viewers would have expected to be presented with the full range of views on abortion, including possible 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 Project could reasonably be expected to have a level of awareness of significant arguments in the debate.¹²

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

Accuracy

[23]  The complainant has argued that the programme was misleading by promoting the proposition that abortion should not be in the Crimes Act without addressing the reasons why abortion is in the Crimes Act. Programmes may be misleading by omission.¹³

[24]  However, the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.¹⁴

[25]  Ms Edmund was featured on the broadcast to give her opinion on why there has been a delay in potential abortion reform and to explain the current process an individual must undergo in order to receive a legal abortion in New Zealand. Her statements, discussed in the programme, about New Zealand’s current abortion law being ‘old and outdated’ and that it is ‘wrong’ for abortion to still fall under the Crimes Act are clearly value judgements made by Ms Edmund based on her experience with Family Planning. Therefore they were statements of analysis and opinion to which the accuracy standard does not apply.

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

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

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

17 September 2019

Appendix

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

1.               Right to Life’s formal complaint – 14 March 2019

2.               MediaWorks’ response to the complaint – 12 June 2019

3.               Right to Life’s referral to the Authority – 18 June 2019

4.               MediaWorks’ confirmation of no further comment – 9 July 2019

¹ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
² Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 15
³ See: Gray, Scott, Vickers and Vink and MediaWorks TV Ltd, Decision No. 2019-020, where people who are opposed to vaccination are found not to be a recognised section of the community; Foster and Television New Zealand Ltd, Decision No. 2017-009, where ‘climate sceptics’ are found not to be a ‘recognised section of the community’; Swinney and RadioWorks Ltd, Decision No. 2014-021, where ‘people who believe in chemtrails’ are found not to be a recognised section of the community.
4  Guideline 6b
5  Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁶  Guideline 8a
⁷ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁸  As above
9  See, for example, Right to Life New Zealand and MediaWorks TV Ltd, Decision No. 2017-052; and Right to Life and Radio New Zealand Ltd, Decision No. 2017-007
¹⁰  Guideline 8c
¹¹  Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹²  Guideline 8c
¹³  Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
¹⁴  Guideline 9a