BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

A One News item reported on a new prenatal test for Down Syndrome. The Authority did not uphold the complaint that the item discriminated against people with Down Syndrome and was unbalanced because it did not show a situation where identifying a baby with Down Syndrome was viewed positively. Comments suggesting that a low probability of having a baby with Down Syndrome was ‘good news’ were clearly the personal opinions of the interviewees and were not endorsed by the programme. The item itself made no judgement about the test or the outcome of testing in terms of whether a foetus diagnosed as having Down Syndrome was a good or a bad thing. The item was squarely focused on the benefits of the new test in that it was more accurate, and less invasive than other procedures. The item would not have distressed child viewers and did not discuss a controversial issue requiring the presentation of other views.

Not Upheld: Discrimination and Denigration, Children’s Interests, Controversial Issues

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Introduction

[1]  An item on One News, reporting on a new prenatal test for Down Syndrome, was introduced by the presenter as follows:

A more accurate test for Down Syndrome has been developed by researchers in the UK. Experts say the new screening technique could dramatically reduce the need for pregnant women to have further invasive testing procedures. The BBC’s [reporter’s name] explains.

[2]  A pre-recorded BBC report contained interviews with researchers involved in developing the test, and footage of an expectant mother who underwent the test. The item was broadcast on TV ONE at about 6.08pm on 9 June 2013.

[3]  Elizabeth Samuel made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item encouraged discrimination and denigration against people with Down Syndrome, and did not present a ‘reasonable range of views’ or show a situation where identifying a baby with Down Syndrome was viewed positively. In addition, she argued that it was inappropriate to broadcast the item during children’s viewing times.

[4]  The issue is whether the broadcast breached the discrimination and denigration, children’s interests, and controversial issues standards, as set out in the Free-to-Air Television Code of Broadcasting Practice.

[5]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Did the broadcast encourage discrimination against, or the denigration of, people with Down Syndrome as a section of the community?

[6]  The discrimination and denigration standard (Standard 7) protects against broadcasts which encourage the denigration of, or discrimination against, a section of the community.

[7]  The term ‘denigration’ has consistently been defined by the Authority as blackening the reputation of a class of people.¹ ‘Discrimination’ has been consistently defined as encouraging the different treatment of the members of a particular group, to their detriment.² It is also well-established that in light of the requirements of the New Zealand Bill of Rights Act 1990, a high level of invective is necessary for the Authority to conclude that a broadcast encourages denigration or discrimination in contravention of the standard.³

[8]  Ms Samuel said that the item highlighted it as a ‘good thing’ not to have Down Syndrome, and stated, ‘This sort of attitude encourages discrimination against those with Down Syndrome because no positive aspects of Down Syndrome are spoken about’, and, ‘How can the public be expected to view a child or adult with Down Syndrome in a positive way if not having the condition is portrayed as “good news”?’

[9]  TVNZ said that the item did not contain any negative comments about people with Down Syndrome and could not be construed as denigrating children or people with Down Syndrome. It said the item simply reported on a new testing technique and focused on the fact pregnant women no longer had to endure more invasive and possibly life-threatening testing procedures.

[10]  We recognise that the report raised sensitive issues and that for persons with Down Syndrome and their families, portraying it as ‘good news’ not to have Down Syndrome would be considered offensive and upsetting. However, we agree with TVNZ that this was a straightforward news report on a new prenatal screening and diagnosis test for chromosomal disorders such as Down Syndrome. The item did not make any judgement about the existence of the test of the outcome of testing in terms of whether a foetus diagnosed as having Down Syndrome was a good or a bad thing.

[11]  The complainant pointed to comments made by an expectant mother who underwent the test and the Professor who helped to develop it. The item showed the Professor saying, ‘We have the good news that the DNA test shows that the risk [of having a Down Syndrome baby] is less than one in 10,000’. The expectant mother commented, ‘It’s fantastic, because you know your baby’s healthy. You’ve got to this stage in your pregnancy and you can sort of tick that box and move on to the next stage and enjoy your pregnancy now. I think it’s fantastic.’ While these comments portrayed it as a ‘good thing’ not to have Down Syndrome, and could be construed as insensitive in this respect, they were clearly the personal views and opinions of the participants. Guideline 7a to the discrimination and denigration standard states that the standard is not intended to prevent the expression of genuinely held opinion in news, current affairs and other factual programmes.

[12]  The comments made by the participants were not endorsed by the programme. The item did not advocate for the test, or for the abortion of foetuses identified as having Down Syndrome. Rather, the test was described as a ‘major advance in screening’ because it was more accurate, less invasive and safer than other procedures such as amniocentesis. The focus of the item was made clear in the introduction (see paragraph [1]), and was reinforced by the Professor’s comment:

We have to do a lot less unnecessary invasive tests and therefore we reduce the number of miscarriages, and secondly, the results that we are getting are very, very clear…

[13]  While we have sympathy for the complainant’s position, it is outside the scope of our jurisdiction to consider wider human rights or moral issues around the existence of a prenatal test targeted at identifying Down Syndrome, or selective abortion. Our task is limited to assessing the content broadcast against the relevant broadcasting standards. We are satisfied that here the broadcast did not encourage discrimination against, or the denigration of, people with Down Syndrome as a section of the community. We therefore decline to uphold the Standard 7 complaint.

Did the broadcaster adequately consider children’s interests?

[14]  The children’s interests standard (Standard 9) requires broadcasters to consider the interests of child viewers during their normally accepted viewing times – usually up to 8.30pm. The purpose of the standard is to protect children from broadcasts which might adversely affect them.⁴

[15]  Ms Samuel noted that the item screened at about 6.08pm when children, including those with Down Syndrome, were likely to be watching. She said the message conveyed by the item was not one of acceptance or integration. TVNZ responded that it was widely accepted that children watching the news did so under adult supervision. The broadcaster did not consider that the item contained content that would have alarmed or distressed children.

[16]  We accept that the item may have been upsetting and confusing for children, particularly those with Down Syndrome, given its subject matter – a test for Down Syndrome – as well as the comments made by the participants. However, the broadcast did not breach the standard.

[17]  Standard 9 primarily applies where a programme is targeted at, or likely to appeal to, children, or where content is broadcast during children’s normally accepted viewing times. News programmes are, by their nature, unclassified, targeted at adults, and in our view unlikely to appeal to children. While the item screened just after 6pm during children’s viewing times, news programmes often contain material that may disturb or alarm children, and it is expected that parents will exercise discretion and provide supervision with regard to their children’s viewing of news.

[18]  Taking into account the wider context of the broadcast – that the item formed part of an unclassified news programme targeted at adults – and also that the views expressed by the participants were not endorsed by the programme, we are satisfied that TVNZ adequately considered children’s interests.

[19]  We decline to uphold the Standard 9 complaint.

Did the item contain a discussion of a controversial issue of public importance requiring the presentation of alternative viewpoints?

[20]  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 balance standard exists to ensure that competing arguments are presented, where necessary, to enable a viewer to arrive at an informed and reasoned opinion.⁵

[21]  Ms Samuel argued that the item was unbalanced because it did not include input from the Down Syndrome community or the view that having a child with Down Syndrome was ‘good news’. Nor did it say why the test was carried out, or report that it provides no ‘therapeutic benefit to the unborn child that relies on a diagnosis of Down Syndrome before birth’, she said.

[22]  TVNZ said the focus of the item was a new medical screening technique to test for Down Syndrome in pregnancy, which was not a controversial issue of public importance. It said the item was not about whether having Down Syndrome was good or bad, and the test was portrayed positively because it was more accurate and did not require methods used in amniocentesis with the associated risk of damage to, or miscarriage of, the baby.

[23]  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’.⁶

[24]  While we accept that prenatal screening for Down Syndrome could be considered controversial, we reiterate that the focus of the item was the non-invasive, more accurate nature of this new test, and it did not contain any discussion of the broader human rights or moral issues around targeted testing or selective abortion. The Professor’s comment that it was ‘good news’ the expectant mother had a low risk of having a baby with Down Syndrome was not the focus of the report, and was simply an expression of his opinion and used to illustrate the accuracy of the test.

[25]  As the item was a straightforward news report on the new test, it was not necessary to include alternative viewpoints from Down Syndrome advocates.

[26]  Accordingly, we decline to uphold the complaint that Standard 4 was breached.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
19 December 2013

Appendix

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

1   Elizabeth Samuel’s resubmitted formal complaint – 5 July 2013

2  TVNZ’s response to the complaint – 5 August 2013

3  Ms Samuel’s referral to the Authority – 30 August 2013

4  TVNZ’s response to the Authority – 15 October 2013

¹See, for example, Mental Health Commission and CanWest RadioWorks, Decision No. 2006-030.

²For example, see Teoh and Television New Zealand Ltd, Decision No. 2008-091.

³E.g. McCartain and Angus and The Radio Network, Decision No. 2002-152

⁴E.g. Harrison and Television New Zealand Ltd, Decision No. 2008-066

⁵Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁶For further discussion of these concepts see Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010.