BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority did not uphold a complaint under the good taste and decency standard about the use of the phrase ‘child pornography’ in a Newshub item reporting on the arrest of Sir Ron Brierley. The complaint was that the item should have instead referred to child sexual exploitation, as ‘pornography’ infers consent and normalises a terrible practice. The Authority acknowledged the complainant’s concerns about the use of appropriate terminology with regard to very serious criminal conduct against children, and noted that what is appropriate terminology is contested internationally among authorities and global agencies. The Authority also consulted the Digital Safety Team at the Department of Internal Affairs (DIA), which deals with issues including countering child sexual exploitation. DIA advised that it does not use the phrase ‘child pornography’ and considers the term ‘child sexual abuse material’ most accurately describes the illegal material involving children. Taking into account the wider context of the news broadcast, including the high public interest in the item, the Authority found that the single use of the phrase complained about did not breach broadcasting standards or justify regulatory intervention. However the Authority encouraged broadcasters to note the issues highlighted in this decision and exercise judgement when selecting appropriate terminology to refer to this type of serious criminal conduct.

Not Upheld: Good Taste and Decency

The broadcast

[1]  An item on Newshub reported on the arrest of New Zealand-born businessman Sir Ron Brierley, for allegedly being in possession of more than 200,000 images and 500 videos of ‘child pornography’. The item was broadcast during the 6pm news on 19 December 2019 on Three.

The complaint and the broadcaster’s response

[2]  Kieran Smith complained to the broadcaster that the reference to ‘child pornography’ in the item breached the good taste and decency standard of the Free-to-Air Television Code of Broadcasting Practice,¹ because:

Pornography infers there is consent and in the case of Child Exploitation there is no consent. Also, failing to refer to it as exploitation and instead using the term pornography normalises a terrible practice.

[3]  MediaWorks did not uphold the complaint, saying:

We are confident that viewers would have understood what ‘child pornography’ meant in the context of the report about the arrest of Sir Ron Brierley, and that there is no contextual basis to support your view that the term ‘normalises’ child pornography or implies that such material can have been produced with ‘consent’. We are satisfied that the broadcast was unlikely to have caused widespread undue offence or distress.

The relevant standard

[4]  The good taste and decency standard (Standard 1) requires broadcasters to maintain current norms of good taste and decency consistent with the context of the programme and the wider context of the broadcast. Relevant contextual factors include the programme classification, time of broadcast, any audience advisories (including warnings), the target and likely audience, and audience expectations. This standard is usually considered in relation to offensive language, sexual material, nudity and violence, but may also apply to other material presented in a way that is likely to cause offence or distress.²

[5]  In his referral to us, Mr Smith also identified the accuracy standard (Standard 9) as having been breached. However, the Authority’s jurisdiction is limited to considering only the standards raised (either explicitly or implicitly) in the original complaint to the broadcaster.³ We reviewed Mr Smith’s original complaint and did not consider it sufficiently implied issues of accuracy to trigger the accuracy standard. We therefore confirmed with the complainant that he wished to proceed with his complaint referral under the good taste and decency standard only.

Our analysis and the outcome

[6]  In considering this complaint, the members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Freedom of expression

[7]  When we consider any complaint about broadcasting standards, our starting point is to recognise the importance of the right to freedom of expression, including both the broadcaster’s right to offer ideas and information and the audience’s right to receive those. We first consider the value and level of public interest in the broadcast complained about, and then weigh that against actual or potential harm alleged to have been caused by that broadcast. We may only interfere and uphold a complaint where we find actual or potential harm caused by the broadcast at a level which justifies regulatory intervention and placing a reasonable limit on freedom of expression.

[8]  In this case, we found the Newshub item carried high public interest and value in terms of the exercise of the right to free expression. The Codebook recognises that reporting on (alleged) serious criminal conduct is a matter of legitimate public interest (being something of real concern to the New Zealand public),⁴ even more so where it concerns a high-profile figure or, in this case, a prominent New Zealand-born businessman.

Appropriate terminology

[9]  Against this value and public interest, we then considered the harm alleged to have been caused in this case, through the news item’s use of the phrase ‘child pornography’ in relation to the criminal allegations against Sir Ron Brierley, rather than child ‘exploitation’.

[10]  We acknowledge the complainant’s legitimate concerns in this respect. It is evident from a number of international sources we looked at, that there is a range of different terms available and that there is some debate about whether ‘child pornography’ is appropriate terminology for this type of criminal conduct, so as not to trivialise its seriousness or confuse it with legal adult material.⁵ We also considered local authorities and sought advice from the Digital Safety Team at the Department of Internal Affairs (DIA), which is responsible for countering online child sexual exploitation and abuse.⁶ DIA advised:

…The addition of the word ‘child’ to the term pornography can lead to confusion amongst the general public, and for some offenders can be used to maliciously conflate their offending as being similar to viewing or participating in the consensual acts of adults. …Criticism of the term child pornography comes from the conflation of what can be legal content with illegal content.

…‘Child pornography’ is a term that has historically been used in New Zealand and is also reflective of some overseas jurisdictions. However, the term ‘child sexual abuse material’ (CSAM) or ‘child sexual exploitation material’ is increasingly being used to replace the term ‘child pornography’.

In New Zealand and internationally there is growing awareness of the need to reject the term ‘child pornography’ and switch the terminology to CSAM or Child Exploitation Material (CEM). The Department prefers the term ‘child sexual abuse material’ (CSAM) as it most accurately describes the material.

For all the reasons outlined here, we do not use the term child pornography.

[11]  We are grateful for this helpful advice from DIA.

Good taste and decency

[12]  Our role as members of the Authority is to apply the relevant Code standard and guidelines to the content complained about, with reference to the particular factors surrounding this Newshub broadcast. As we have noted above, context is crucial to our assessment of potential harm under the good taste and decency standard, including the context of the programme and the wider context of the broadcast. In this case, we considered the guidance offered by DIA, and noted the following contextual factors as being relevant to our assessment of potential harm:

• The item was part of an unclassified news programme targeted at an adult audience.
• The item carried a high level of public interest, by reporting on alleged serious criminal conduct by a prominent New Zealand-born businessman.
• There was only a brief, single use of the phrase ‘child pornography’ which was used to convey allegations of serious offending.
• Other reports on the arrest of Sir Ron Brierley around the time of this broadcast used a variety of phrases including ‘child porn’ and ‘child pornography’ as well as variations of the alternative or preferred terminology referenced above.⁷

[13]  While recognising the terminology is contentious and evolving, in our view the audience generally would understand what was meant by ‘child pornography’ in the context of this Newshub item, and would not take it as normalising or trivialising what is clearly serious criminal conduct. Nor do we think most viewers would interpret the news item as inferring that child victims had given consent.

[14]  We concluded that the broadcaster’s choice of terminology did not undermine standards of good taste and decency or cause harm at a level that justifies limiting the right to freedom of expression. We therefore do not uphold the complaint. However we encourage broadcasters to take note of the issues highlighted in this decision including the evolving language associated with child sexual abuse, and to exercise judgement when selecting appropriate terminology in reporting on this subject.  

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

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

14 July 2020   

Appendix

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

1.         Kieran Smith’s formal complaint – 19 December 2019

2.         MediaWorks’ decision on the complaint – 28 January 2020

3.         Mr Smith’s referral to the Authority – 17 February 2020

4.         Mr Smith’s confirmation he would proceed with his complaint referral under the good taste and decency standard – 4 March 2020

5.         MediaWorks’ confirmation of no further comment – 6 March 2020

6.         Advice from the Department of Internal Affairs’ Digital Safety Team – 22 June 2020

¹ The Free-to-Air Television Code of Broadcasting Practice was refreshed with effect from 1 May 2020. This complaint has been determined under the April 2016 version of the Free-to-Air Television Code of Broadcasting Practice as the relevant broadcast pre-dated 1 May 2020.
² Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
³ Section 8(1B) of the Broadcasting Act 1989
⁴ Guidance: Privacy, Broadcasting Standards in New Zealand Codebook, page 63
⁵ See, for example, ‘Legal perspectives on cybercrime’ (Research Handbook on Transnational Crime, 2019, page 321, footnote 27); and Interpol’s advice based on the Luxembourg Guidelines (2016), which recommends against the use of ‘child pornography’, and instead recommends ‘child sexual abuse’: https://www.interpol.int/en/Crimes/Crimes-against-children/Appropriate-terminology).
⁶ See https://www.dia.govt.nz/Voluntary-Principles-to-Counter-Online-Child-Sexual-Exploitation-and-Abuse
⁷ For example: ‘Sir Ron Brierley child porn charges: New details emerge’ (NZ Herald, 19 December 2019 – the day of the broadcast); ‘Sir Ron Brierley expected to plead not guilty to child abuse charges’ (Stuff, 10 February 2020); ‘Sir Ron Brierley to fight child porn possession charges, court hears’ (NZ Herald, 11 February 2020)