BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld complaints an item on Sunday breached the accuracy, balance, fairness, and discrimination and denigration standards. The broadcast featured a 30 minute report on Aotearoa New Zealand’s medical staffing shortages, and explored whether this issue could be alleviated by the migration of medical staff from the USA, particularly those dissatisfied with the Supreme Court’s recent overturning of Roe v Wade. The complainants considered the broadcast unbalanced, favouring a ‘pro-choice’ perspective. The Authority found: the programme clearly approached the topic of abortion from a specific angle and that viewers could reasonably be expected to have a level of awareness of significant arguments in the debate; the alleged inaccuracies either did not reflect the statements in the broadcast, or related to opinion which is not covered by the accuracy standard; ‘foetuses’ are not a recognised section of the community for the purpose of the discrimination and denigration standard; and the item did not treat any participant unfairly.

Not Upheld: Balance, Accuracy, Fairness, Discrimination and Denigration

The broadcast

[1]  A segment on Sunday, broadcast on 30 October 2022, reported on medical worker shortages in Aotearoa New Zealand, and looked at whether a solution could be found in the United States of America where the overturning of Roe v Wade, and subsequent abortion bans in many states, had resulted in the desire of some US medical professionals to migrate to NZ (and other countries). 

[2]  The programme followed a Christchurch based medical recruitment firm who had been receiving quadruple the number of enquiries from medical professionals in the US following the overturning of Roe v Wade. The manager of the recruitment firm travelled to the US to speak, and present, to medical professionals. The programme included interviews with:

• A paediatric nurse who was considering migrating to NZ and had concerns sharing her pro-choice views at work on account of others overhearing and potentially losing her job or risking her personal safety
• A doctor specialising in women’s health in Texas, where abortions are effectively banned
• The above doctor’s patient, who was contemplating travelling interstate to access an abortion
• Dr Christina Bourne, the Medical Director of Trust Women Clinic which provides abortions in Kansas and which was struggling with high demand due to an influx of patients from states which have banned abortions

[3]  The segment also included brief comments from other medical professionals contemplating leaving the US, and clips of both pro-choice, and pro-life protesters.

[4]  The interview with Dr Bourne included the following dialogue:

Reporter:     Here in Kansas, a woman can have an abortion up to 22 weeks. But it comes at a cost both financially and emotionally… Our destination is the Trust Women's Clinic in Wichita, a clinic compound. Anyone driving into the trust clinic has to pass pro-life protesters and a van with a large graphic image of a dead baby.

Dr Bourne: People driving by that are concerned that that is what their abortion looks like, that that is what their pregnancy looks like. That is like a fully developed foetus on that truck.

Reporter:     Dr Christina Bourne is the medical director. So we're in the compound now. We can't film inside the clinic. Why is that?

Dr Bourne:  Well, we generally discourage filming inside the clinic because of how much of a target we are. So we want patients and staff members to be safe inside the clinic.

Reporter:    They write down registration numbers? [Referring to protesters featured outside the clinic who are recorded noting something down]

Dr Bourne:  They write down license plate numbers, which might be registration numbers. They film people coming in and out. They yell at people coming in and try to give them information.

Reporter:    When you get inside, metal detectors, security guards, the whole thing?

Dr Bourne:  Yeah. Unfortunately, yes.

Reporter:    That threat is frighteningly real.

Dr Bourne:  [The clinic] has been flooded. It's been car bombed. It's had multiple other bombing attempts.

Reporter:    Does it sometimes feel like you're at war.

Dr Bourne:  Oh, absolutely. Yeah. These people are terrorists. They spread misinformation and they spread fear.

Reporter:    Terrorism is a strong word.

Dr Bourne:  They are not pro-life. They often wish for our death. They wish for the death of people who are seeking abortions and are very unapologetic about it.

Reporter:    In 2009 Dr George Tiller, a previous medical director at Christina's Clinic, was shot and killed by an anti-abortion extremist as he entered the Wichita church to pray.

Dr Bourne:  We don't come to the clinic alone. There's recommendations that as physicians, we wear bulletproof vests. There's recommendations that I travel with armed security guards.

Reporter:    It means the clinic feels more like a military bunker than a medical facility.

Dr Bourne:  The vast majority of folks are tired, stressed, scared, but still coming here for the care that they need.

The complaints

[5]  Right to Life New Zealand Inc and Terry Kavanagh complained the broadcast breached multiple standards (with Kavanagh complaining solely under the balance standard) of the Code of Broadcasting Standards in New Zealand. Key aspects of the complaints include:

Balance

• The broadcast discussed the changes to US law regulating abortion access which is a controversial issue of public importance both in the US and NZ. (Kavanagh)
• The programme lacked balance as it only included interviews with pro‑choice medical professionals in the US about their views and fears (including fears of the protesters outside the clinic). For balance, the broadcast should have included interviews with:
  (a)  local pro-life representatives (particularly those protesters featured outside the clinic as only the medical director was interviewed about her concerns). (Kavanagh)
  (b)  pro-life medical professionals in the US, as the programme gave the false impression that the majority of medical staff in the US were opposed to the overturning of Roe v Wade, and that abortions were a ‘normal and accepted part of medical practice’. (Right to Life)
  (c)  people in the NZ community who might be opposed to pro-choice medical professionals migrating from the US to perform abortions in NZ. (Right to Life)

Accuracy

Misleading graphic image

• The programme failed to provide evidence for Dr Christina Bourne’s claim that the image on the pro-life protesters’ truck was false.

Protesters recorded licence plate numbers to obtain personal details

• The producers of the programme should have questioned Dr Bourne’s claim that protesters recorded the licence plate details of patients’ vehicles, which they used to obtain the names and residential details of the owners in order to post them pro-life material. ‘This claim was inaccurate as Federal law in US prohibits disclosure of personal information derived from a person’s vehicle’.

Allegations of violence by pro-life protesters

• The producers should have investigated the veracity of Dr Bourne’s claims that pro-life protesters outside the clinic: were not pro-life; were terrorists; and threatened death upon the staff and patients. ‘These are very serious threats that are criminal, if they are true’.

Discrimination and denigration and fairness

• ‘The object of this programme was to denigrate and normalise the killing of unborn children’. ‘There was a total absence in the programme of any recognition of the rights of the unborn child, its right to life and its right to respect and protection’. In response to TVNZ’s submission NZ has ‘no foetal right to life’, it notes ‘the born alive rule is thus a legal fiction.’
• The programme featured allegations from Dr Bourne about the pro-life protesters outside the clinic, including that they are ‘not pro-life’, that ‘they are terrorists who threaten the lives of staff and patients’. Allowing these accusations to go unchallenged reflected poorly on the protesters who were not given the opportunity to defend themselves and explain their ’extraordinary humanitarian support.’
• The programme reflected unfairly against pro-life protesters in NZ as it inferred they were ‘hateful, not really pro-life and are potentially terrorists’.

[6]  We note a large portion of Right to Life’s submissions dealt with issues that were not featured in the broadcast, such as the morality of abortion, appropriate medical treatment for pregnancy complications, or whether New Zealanders supported unrestricted access to abortion. As our role is to determine whether the specific broadcast breached the applicable broadcasting standards, we do not address these issues.

The broadcaster’s response

[7]  TVNZ did not uphold either complaint. Key aspects of its decision include:

Balance

• The issue discussed – US healthcare providers leaving the US to work overseas (including in NZ) due to the Supreme Court decision on Roe v Wade – is not a controversial issue of public importance.
• ‘There was no requirement to interview healthcare providers who do not agree that abortion access for women is important as they are not the subject of the discussion.’ The broadcaster also provided links it said showed the majority of US medical professionals support abortion access.¹
• The viewpoints of pro-life groups in the US was recognised in the programme.
• It is not controversial that abortion clinics in the US face threats of violence. There is significant evidence of such attacks occurring, and balancing material to Dr Bourne’s statements was not required.
• A NZ response was not required, because abortion law in NZ was not part of the discussion, and the overturning of Roe v Wade in the US has no impact on abortion rights/law in NZ. ‘To the extent that a NZ perspective was required on the discussion, the perspective of recruiters from NZ, looking to hire doctors and healthcare workers who want to move from the US was included as appropriate.’

Accuracy

Misleading graphic image

• Dr Bourne’s statement is one of expert opinion. In any event, she does not state the images are false, she simply states the image shows a fully developed foetus, which is not representative of what is happening at the clinic.

Protesters recorded licence plate numbers to obtain personal details

• The allegation Dr Bourne stated licence plate numbers were recorded by protesters to obtain personal details is incorrect. Dr Bourne’s comments were: They write down licence plate numbers… (of cars entering the clinic), they film people coming in and out, they yell at people coming in and try to give them information.

Allegations of violence by pro-life protesters

• There was no claim in the programme the specific men pictured protesting against the right to abortion were involved in illegal practices.
• Further, Dr Bourne’s characterisation of the protesters in general was her own opinion, but is not unreasonable in the circumstances.
• In the broadcast Dr Bourne stated the violence which has happened at the clinic included flooding, a car bomb, and bomb threats. The reporter noted that in 2009 Dr Tiller, a previous medical director at the clinic was murdered by an anti-abortion extremist. It is also reported elsewhere that the clinic was bombed in 1993, and that prior to his murder, Dr Tiller was shot in both arms in an attempted murder by another anti-abortion extremist. Both of Dr Tiller’s attackers have been described as ‘terrorists’.²
• The broadcaster also provided references to statistics which show rising levels of violence toward abortion providers in the US.³

Discrimination and denigration

• The broadcaster referenced a legal opinion and case law which both found that in NZ no foetal right to life arises from the common law or the Bill of Rights Act.⁴ The broadcaster further advised that regardless, the broadcast did not reach the threshold necessary to conclude it encouraged discrimination against unborn foetuses.

Fairness

• It is unclear who Right to Life believed was treated unfairly. Assuming it was the protesters, the description of their actions was accurate, and people involved in such groups are recorded as committing violence in the US against abortion providers.
• Protesters in NZ were not referred to, and did not take part in the programme.

The standards

[8] The balance standard⁵ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.⁶ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.⁷

[9]  The purpose of the accuracy standard⁸ is to protect the public from being significantly misinformed.⁹ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

[10]  The discrimination and denigration standard¹⁰ protects against broadcasts which encourage the 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.

[11]  The fairness standard¹¹ protects the dignity and reputation of those featured in programmes.¹² It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

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

[13]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.¹³

Balance

[14]  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.¹⁴

[15]  The Authority has typically defined an issue of public importance as something that would have ‘significant potential impact on, or be of concern to, members of the NZ public.’ A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.¹⁵

[16]  The complainants have both alleged the broadcast breached the balance standard in its portrayal of abortion by failing to include pro-life perspectives.

[17]  The Authority has previously found abortion and related laws or changes to the law may amount to a controversial issue of public importance (at least in a NZ context).¹⁶ The Authority has also found that in some cases law changes in the United States may be such an issue, recognising the potential international implications.¹⁷ In one case, it acknowledged a discussion on the potential impact and implications for NZ of the Supreme Court’s decision overturning Roe v Wade was such an issue given the ‘debate and reaction in NZ from politicians, media and the public.’¹⁸

[18]  However, in this case, changes to abortion access in the US / overturning of Roe v Wade, and the morality of these changes were not the focus of the broadcast. The focus of the broadcast was on the consequences of those changes to the New Zealand labour market. Given this focus, we do not consider the references to abortion in the broadcast amounted to a discussion of a controversial issue of public importance for the purposes of the standard.

[19]  Even if the standard applied, we do not consider the requirement to provide alternative viewpoints was triggered in this instance.

[20]  A key consideration is what an audience expects from a programme, and whether they were likely to have been misinformed by the omission or treatment of a significant perspective.¹⁹

[21]  The assessment of whether a reasonable range of other perspectives has been presented includes consideration of:²⁰

• The programme’s introduction and the way in which it was presented, for example, whether the programme:
  (a)  purported to be a balanced examination of an issue
  (b)  was clearly signalled as approaching a topic from a particular   perspective
  (c)   was narrowly focused on one aspect of a larger, complex debate.
• The nature of the issue/whether viewers could reasonably be expected to be aware of views expressed in other coverage, including coverage in other media.

[22]  In this case, we found the broadcaster met its obligations under the standard to adequately present balancing viewpoints either within the programme or within the period of current interest, taking into account the following factors:

• The item approached the issue of abortion and the overturning of Roe v Wade from a specific angle – the benefits to NZ’s medical system if dissatisfied medical professionals in the US chose to migrate here. This is made clear in the opening statements of the broadcast: ‘Doctors, nurses and the hospitals they work in, barely coping with staff shortages and burnout. But could the answer lie on the battlefields of America's culture wars?’
• While the broadcast discussed changes to abortion law in the US, it did not purport to be a detailed examination of the possible moral and ethical reasons for and against abortion itself.
• The interviews with medical professionals seeking to migrate due to dissatisfaction with the overturning of Roe v Wade was consistent with the specific focus of the broadcast. In these circumstances, we do not consider it was necessary to canvass the views of pro-life medical professionals in the US who have no intention to migrate, or those of pro-life protesters. Nor in these circumstances were the views of pro‑life community members in NZ required.
• Viewers could reasonably be aware of other views held by medical staff in the US regarding abortion access. This was highlighted by:
  (a)  the interview with the paediatric nurse, who spoke of her concern discussing her pro-choice views with the reporter while at her place of work, because others might overhear, and this could result in her losing her job. This clearly indicated to the viewer that the nurse’s views were in the minority at her workplace, and that others held different views to her.
  (b)  Questions from the reporter indicating other perspectives, including to the Texan Doctor asking ‘what do you say to the other side who believe that it's a life and you're taking a life?’
  (c)   The views of pro-life protesters included in several brief clips.
• Lastly, the balance standard allows for balance to be achieved over time, and it recognises that for some issues the ‘period of current interest’ will be ongoing, meaning audiences can reasonably be expected to be aware of the major opposing viewpoints.²¹ Abortion is such an issue, having been hotly‑debated for many years and receiving significant media coverage of both sides of the debate. This is also true for the specific issue of Roe v Wade being overturned.²²

[23]  In these circumstances, we do not consider viewers would have expected to be presented with, or otherwise left uninformed by the omission of, the full range of views on abortion, including possible moral reasons against abortion being legalised.

Accuracy

[24]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.

[25]  The standard is concerned only with material inaccuracies. Technical or other points unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.²³

[26]  The requirement of accuracy does not apply to statements which are clearly distinguishable as analysis, comment, or opinion.²⁴

[27]  In this case we found no breach of the accuracy standard, noting that in two of the allegations, Right to Life either misheard or misunderstood the statements made in the broadcast, and in the third allegation, the statement was opinion to which the accuracy standard does not apply. We expand on these findings below: 

Misleading graphic image

• Dr Bourne did not state the image was false, but stated: ‘People driving by that are concerned that that is what their abortion looks like, that that is what their pregnancy looks like. That is like a fully developed foetus on that truck’.
• As advised in the broadcast, the clinic where Dr Bourne works provides abortion services up to 22 weeks. Dr Bourne’s statement was that the image does not represent an accurate depiction of the services provided at the clinic, not that the image was false. We consider the statement to be accurate.

Protesters recorded licence plate numbers to obtain personal details

• Dr Bourne’s statement was: ‘They write down license plate numbers, which might be registration numbers. They film people coming in and out. They yell at people coming in and try to give them information.’
• The broadcast contained no statement the recording of licence plate numbers was used to obtain personal details as alleged by the complainant.

Allegations of violence by pro-life protesters

• Dr Bourne stated the people who bombed and flooded the clinic: ‘are terrorists’; ‘spread misinformation and fear’; ‘are not pro-life’; ‘often wish for our death’; and ‘wish for the death of people seeking abortions’. This statement was not directed at the two protesters outside the clinic, but was made in response to the reporter’s question, asking Dr Bourne if violence she had described ‘ever made it feel like [she was] at war’. Her response to the question was clearly her own opinion on the motivations and actions of those who had threatened or committed violence against the clinic and its staff, to which she is entitled.
• The accuracy standard states broadcasters should still make reasonable efforts to ensure opinions are not materially misleading as to facts.²⁵ It is a fact that the clinic Dr Bourne works at has in the past been bombed, and that a previous medical director of the clinic was murdered by anti-abortion extremists, after surviving a previous murder attempt from another anti-abortion extremist.²⁶ Dr Bourne is entitled to equate actions such as these to acts of domestic terrorism, and the Authority has previously recognised the value in allowing individuals to express themselves in their own words.²⁷ Dr Bourne’s comments would not have materially mislead the audience as to the dangers that she and other staff members at the clinic face from anti-abortion extremism.

Discrimination and Denigration

[28]  The discrimination and denigration standard only applies to recognised ‘sections of the community’.²⁸ We have previously determined, in relation to other complaints from Right to Life, that ‘unborn children’ are not a recognised section of the community for the purposes of this standard.²⁹ We would also note this Authority is not the appropriate avenue to enact changes to the ‘born alive’ rule.

[29]  Therefore the standard does not apply and we do not uphold this part of the complaint.

Fairness

[30]  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. Right to Life alleged the anti-abortion protesters in the US; the specific protesters outside the clinic (and potentially their organisation); and anti-abortion protesters in NZ were unfairly treated.

[31]  We do not uphold the complaint under this standard for the following reasons:

• Anti-abortion protesters in the US do not make up a recognised organisation for the purpose of the fairness standard.³⁰
• The views of the two protesters featured outside the clinic were fairly provided for in the broadcast and the broadcast would not have left the audience with an unfairly negative impression of the two men, or their organisation (which was not named in the broadcast). Statements from the men featured included:
  (i)  ‘Please help us lord to love one-another more fully, and to respect and value everyone on earth.’
  (ii)  ‘How can you get more criminal than the people who are willing to cut the heads and legs and arms off of little baby humans’.
• NZ pro-life protesters were not featured in the programme, and as noted above, do not make up an organisation for the purposes of the standard.

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

Susie Staley
Chair
1 May 2023    

Appendix

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

Right to Life

1  Right to Life’s formal complaint to TVNZ – 16 November 2022

2  TVNZ’s response to Right to Life’s complaint – 13 December 2022

3  Right to Life’s referral to the Authority – 2 January 2023

4  TVNZ’s further comments – 3 February 2023

5  Right to Life’s further comments – 20 February 2023

6  TVNZ confirming no further comment on Right to Life complaint – 24 February 2023

Terry Kavanagh

7  Terry Kavanagh's formal complaint to TVNZ – 11 November 2022

8  TVNZ’s response to Kavanagh’s complaint – 7 December 2022

9  Kavanagh’s referral to the Authority – 7 January 2023

10  TVNZ’s further comments – 24 February 2023

11  Kavanagh confirming no further comment – 4 March 2023

¹ Collaborative for Reproductive Equity “Core’s Survey of Doctors Highlights Widespread Support for Abortion Access” (6 December 2021) <Core.wisc.edu>; Katharina Cavano “64% of U.S Nurses Looking to leave Healthcare: the Impact of Roe v Wade” (12 September 2022) Palladium <thepalladiumgroup.com>; Sermo “67% of doctors support access to abortion - Sermo” (24 May 2021) <Sermo.com>; Sermo “Doctors say abortion is essential to healthcare” (4 October 2021) <Sermo.com>; Jeff Diamant and Besheer Mohamed “What the data says about abortion access in the U.S.” (11 January 2023) Pew Research Centre <pewresearch.org>
² Wikipedia “Shelley Shannon” (accessed 3 March 2023) <wikipedia.org>; Wikipedia “Assassination of George Tiller” (Accessed 10 March 2023) <wikipedia.org> 
³ The United States Justice Department “Recent cases on violence against reproductive health care providers” (accessed 2 March 2023) <www.justice.gov>; National Abortion Federation “2020 Violence and Disruption statistics” (accessed 2 March 2022) <prochoice.org>
⁴ Referring to Crown Law | Te Tari Ture o te Karauna “Abortion Legislation Bill – consistency with New Zealand Bill of Rights Act 1990” (1 August 2019)
⁵ Standard 5, Code of Broadcasting Standards in New Zealand
⁶ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 14
⁷ Guideline 5.1
⁸ Standard 6, Code of Broadcasting Standards in New Zealand
⁹ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
¹⁰ Standard 4, Code of Broadcasting Standards in New Zealand
¹¹ Standard 8, Code of Broadcasting Standards in New Zealand
¹² Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
¹³ Introduction, Code of Broadcasting Standards in New Zealand at page 4
¹⁴ Guideline 5.1
¹⁵ Guideline 5.1
¹⁶ Boom and Television New Zealand Ltd, Decision No. 2022-059 at [11]
¹⁷ Pask and Mediaworks TV Ltd, Decision No. 2019-057 at [19]
¹⁸ Watkins and Radio New Zealand Ltd, Decision No. 2022-091 at [10]
¹⁹ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 15
²⁰ Guideline 5.4
²¹ Guideline 5.2 and 5.4
²² “Pro-choice and pro-life protesters clash at Auckland rally” 1 News (online ed 16 July 2022); Lindsey Whitehurst “US midterm elections: Abortion Supporters win in Conservative, Liberal states” Stuff (10 November 2022); “US Supreme Court overturns abortion law Roe v Wade” RNZ (online ed, 25 June 2022); Mark Sherman “US Supreme Court overturns Roe v Wade abortion law” New Zealand Herald (online ed, 25 June 2022); “Roe v. Wade: A new landscape for abortion access in 2022” RNZ (online ed, 15 December 2022); Gabrielle Borter and Steve Gorman “Indiana lawmakers approve first state abortion ban since Roe overturned” RNZ (online ed, 6 August 2022)
²³ Guideline 6.2
²⁴ Guideline 6.1
²⁵ Guideline 6.1
²⁶ Ed Pilkington “For years anti-abortionists tried to stop Dr Tiller. Finally a bullet did” The Guardian (online ed, 1 June 2009)
²⁷ See AP and Television New Zealand Ltd, Decision No. 2021-153 at [17]
²⁸ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 12
²⁹ See: Right to Life New Zealand and Radio New Zealand Ltd, Decision No. 2020-056, at [20]; Right to Life New Zealand and Media Works TV Ltd, Decision No. 2019-041 at [13]
³⁰ See Shields and Discovery NZ Ltd, Decision No. 2022-046 at [28]