BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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Shierlaw and Television New Zealand Ltd - 2018-042 (24 August 2018)

  • Peter Radich (Chair)
  • Paula Rose
  • Wendy Palmer
  • Te Raumawhitu Kupenga
  • Max Shierlaw


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

The Authority has not upheld a complaint that a discussion on Breakfast, about controversial comments made by Israel Folau, was in breach of the balance broadcasting standard. During the discussion, weather reporter, Matty McLean, gave his opinion on the comments, saying that he found them to be harmful. The Authority recognised that Mr Folau’s comments sparked ongoing public debate about the right to freedom of expression and harm. The discussion on Breakfast therefore amounted to discussion of a controversial issue of public importance under the standard. However, the Authority considered Mr McLean was clearly expressing his opinion on the issue and was entitled to do so, given Breakfast’s well-established programme format which includes the hosts expressing their views on current events. Differing perspectives on the topic were also available in surrounding media, so viewers could reasonably be expected to be aware of the significant points of view on this issue. For these reasons, the Authority considered that upholding this complaint would represent an unjustified and unreasonable limit on the broadcaster’s right to freedom of expression.

Not Upheld: Balance 

The broadcast

[1]  During a news item on Breakfast, the news presenter reported on reaction to controversial comments made by Israel Folau. Mr Folau, a devout Christian, had responded to a comment on an Instragram post which asked ‘what was god’s plan for gay people’, by saying:

HELL... Unless they repent of their sins and turn to God.

[2]  After the news report, the news presenter discussed the comments with the hosts of the programme, asking ‘when does freedom of speech turn into hate speech?’ Host, Hayley Holt, replied, ‘Exactly! When you’re running down a whole group of society I think.’

[3]  Jack Tame then turned to weather reporter, Matty McLean, who gave his opinion prior to presenting the weather report. Mr McLean said that, as a gay man, he found Mr Folau’s comments to be harmful. He said, for example, ‘…it’s tough to stand up and say ‘I am proud of who I am and I’m going to live my life the way I want to live my life’… it is really harmful to the thousands and thousands of people who look up to him and idolise him and listen to things he says.’

The complaint

[4]  Max Shierlaw complained that the discussion of Israel Folau’s comments amounted to discussion of a controversial issue of public importance under the balance standard. Mr Shierlaw’s view was that broadcasters should report the news, not provide opinion on it, and considerable airtime was granted to Mr McLean to advance his opinion.

[5]  Mr Folau’s comments received considerable ongoing media coverage and the issue raised by the presenters (asking when freedom of speech turns into hate speech) required a balanced debate. For this reason, a contrary viewpoint should have been presented alongside Mr McLean’s.

The broadcaster’s response

[6]  TVNZ’s response to Mr Shierlaw’s complaint was that:

  • It did not agree that the commentary, representing Mr McLean’s view on Mr Folau’s comments, was a controversial issue of public importance.
  • In any event, Mr McLean’s comments were clearly signalled as approaching the topic from a particular perspective.
  • Balancing comment was provided during the period of current interest in various news media.

The balance standard

[7]  Mr Shierlaw complained that this broadcast was in breach of the balance standard of the Free-to-Air Television Code of Broadcasting Practice.

[8]  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. The standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.

Our finding

[9]  When we make a decision on a complaint about broadcasting standards, we first consider the right to freedom of expression. We weigh the value of the broadcast against the level of actual or potential harm that might be caused. When we consider the broadcast’s value, we look at both the broadcaster’s right to freedom of expression, and the audience’s right to receive information and, in this case, opinions and ideas.

[10]  We agree with the complainant that this news item, and the subsequent commentary, discussed a controversial issue of public importance. Mr Folau’s comments received widespread media coverage and sparked ongoing public debate about the right to freedom of expression and harm.

[11]  However, we do not agree with the complainant’s view that programmes such as Breakfast, which report the news, should not also provide viewers with opinion. While Breakfast contains factual information through news reports and interviews, the well-established programme format includes that the hosts and presenters also provide their own opinions on current events and audiences expect this from the programme (and similar ‘infotainment’ programmes, such as The AM Show, Seven Sharp or The Project).

[12]  During this broadcast, Mr McLean was clearly expressing his own point of view on the issue and was entitled to do so. The issue was raised briefly, with comments sought from Mr McLean as an aside before the weather report. The discussion reflected the personal views of the hosts and was clearly presented as such. Viewers would not have expected this commentary to be balanced, given the comments were made from Mr McLean’s personal perspective.

[13] In any event, this was an ongoing topic of debate and balancing views were available in surrounding media. Mr Folau wrote a blog post clarifying his views and explaining his comments, which was covered by mainstream media outlets.1 Further, differing viewpoints, either in support of Mr Folau or in support of his right to express his views, were also available.2 Viewers, therefore, could reasonably be expected to be aware of other significant points of view on this issue.

[14] In this case, we consider that upholding the complaint would reflect an unjustified and unreasonable limit on the right to freedom of expression, including the right of the broadcaster to impart opinions and ideas, and for Breakfast’s audience to receive those opinions and ideas. We therefore do not uphold the complaint.

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

Signed for and on behalf of the Authority


Peter Radich
24 August 2018



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

1     Max Shierlaw’s formal complaint – 18 April 2018
2     TVNZ’s response to the complaint – 16 May 2018
3     Mr Shierlaw’s referral to the Authority – 27 May 2018
4     TVNZ’s confirmation of no further comment – 13 July 2018

1  I’m a sinner too (Israel Folau, Players Voice, 16 April 2018); Israel Falou explains why he said gay people are going to hell (Newshub, 17 April 2018); Israel Falou stands by comments on homosexuality… (NZ Herald, 17 April 2018)

2  Being able to express yourself is important but do it respectfully (1 News, 19 April 2018); Duncan Garner says Israel Folau just quoting Bible (Newshub, 17 April 2018); ‘Cry baby gays’ – Destiny Church leader Brian Tamaki voices support for Israel Folau (1 News, 19 April 2018); Former Wallabies captain Nick Farr-Jones supports Israel Folau (Daily Mail Australia, 18 April 2018); Israel Folau’s team-mate throws support behind him (Stuff, 12 April 2018); Israel Folau’s beliefs are ugly but censoring him won’t weed out homophobia (The Guardian, 10 April 2018); Israel Folau – the right to speak freely (The Australian, 10 April 2018)