BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Findings
Standard 4 (controversial issues) – item focused on the experience of one man – did not discuss a controversial issue of public importance – not upheld

Standard 5 (accuracy) – complainant’s concerns related to information that was conveyed as the interviewee’s personal opinion and interpretation of events – exempt from standards of accuracy under guideline 5a – not upheld

Standard 6 (fairness) – no individual or organisation taking part or referred to in the item was treated unfairly – not upheld

Standard 7 (discrimination and denigration) – item focused on one man and his personal experience – no comment or inference made about China or Chinese people in general – did not encourage discrimination against or the denigration of Chinese people as a section of the community – not upheld

This headnote does not form part of the decision.

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Introduction

[1]  An item on Sunday profiled a New Zealand businessman and his experience serving four-and-a-half years in a Chinese prison. He described how he was forced, under threat of torture, to manufacture goods that were then exported to the Western market. The programme was broadcast on TV One at 7pm on 31 March 2013.

[2]  Forrest Tan made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item was unfair, and the information broadcast was inaccurate and unbalanced.

[3]  Mr Tan raised standards relating to good taste and decency, law and order, controversial issues, accuracy, fairness, discrimination and denigration, and responsible programming in his original complaint. However, in his referral, Mr Tan appeared to narrow the scope of his complaint, focusing on only some of these standards.

[4]  The focus of our determination therefore, is whether the broadcast breached standards relating to controversial issues (Standard 4), accuracy (Standard 5), fairness (Standard 6), and discrimination and denigration (Standard 7), as set out in the Free-to-Air Television Code of Broadcasting Practice. We have briefly addressed the other standards raised by the complainant at paragraph [37] below.

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

Nature of the programme and freedom of expression

[6]  Sunday is a long-running New Zealand current affairs programme featuring local and overseas current event or human interest stories. The item subject to complaint was presented as a personal story and was introduced by the presenter, as follows:

Slavery has been abolished, right? “Wrong”, says a Kiwi businessman. [Name] says he was a slave for four-and-a-half years. The Wellington man says he was forced under threat of torture to make consumer goods to sell to the West, and [name] says we should wake up to the reality that many of these cheap goods end up in our homes.

[7]  The item was presented from the perspective of the man. In the first part of the item he recollected the time he spent and the treatment he received in a Chinese prison. He alleged that, along with other prisoners, he was forced to manufacture goods that were then exported to the Western market. The second part of the item investigated this claim, and the reporter interviewed a representative from Amnesty International who expressed views in support of the man’s story.

[8]  Raising public awareness of, and generating discussion about, forced prison labour, and exposing allegations that products manufactured in prison labour camps could be finding their way into the New Zealand market, is of public interest and has high value in terms of freedom of expression. The peripheral issue raised by the broadcast of whether New Zealand should have an agreement with China and other countries to repatriate prisoners, was also a matter of public interest and concern.

[9]  This value must be weighed against the level of harm alleged to have been caused by the broadcast, in terms of the underlying objectives of the relevant broadcasting standards.  Mr Tan argued that the broadcast contained inaccurate and unbalanced information which, in his view, created an unfair impression of China and Chinese people. He asserted that the impact of the item was to “discredit and insult” China, Chinese people and free trading with China.

[10]  Taking into account that the item was a personal story about one man’s experience, which contained high value speech, we consider that a compelling justification is required to restrict the broadcaster’s right to impart such information and the audience’s right to receive it.

Our approach to the complaint

[11]  Mr Tan made many arguments and raised many issues in his complaint. His main concerns, in our view, were:

• The programme used the term “slave” labour, instead of “forced” prison labour, which was unfair.
• The programme claimed that goods manufactured in Chinese prisons, under forced labour, were exported to, and sold in, Western markets. The complainant said that “does not make any sense”, noting that in 1991 China prohibited the exportation of products manufactured by prisoners, and he referred to China’s customs website.²  The complainant speculated that products manufactured in Chinese prisons were probably consumed within China or exported to markets that were less “sensitive” to prison labour, such as Africa or South America.
• The programme claimed that prison factories were “highly profitable” businesses. Mr Tan questioned whether TVNZ had any evidence to support this.
• The programme implied that foreign prisoners were treated worse than Chinese prisoners, but gave no evidence to support this. The complainant agreed that “the human rights conditions in Chinese jails [are] terrible”, but said his research showed that foreign prisoners, and especially those from Western countries, “would be treated carefully in China because they are monitored by their embassies”.
• Contrary to what the man alleged in the programme, the complainant said the “impression” he got from his own research was that “[the man] had been treated nicely in China”. The complainant provided a letter allegedly written by the man to the Chief of the prison.
• The programme failed to show respect for the victim of the man’s crime, and the victim’s family. The complainant considered that Sunday should have interviewed the victim’s family “to ask what they feel, and what they have been suffering”.

[12]  Mr Tan’s arguments were general in nature, rather than specific to any of the standards raised. Given the nature of the complaint and the many arguments made, we consider it appropriate to take a general approach and assess the Sunday item in its entirety, as it would have been interpreted by the average viewer. We have nevertheless taken all of Mr Tan’s concerns into account in making our findings under the standards which were the focus of his referral, namely, balance, fairness, accuracy, and discrimination and denigration.

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

[13]  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 to enable a viewer to arrive at an informed and reasoned opinion.³

[14]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to 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”.⁴

[15]  The Authority has typically defined an issue of public importance as something that would have a “significant potential impact on, or be of concern to, members of the New Zealand public”.⁵  A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁶

[16]  We accept that forced labour in Chinese prisons and the export of goods manufactured through forced labour to Western countries would be of concern to members of the New Zealand public. Given that the New Zealand Customs Service enforces rules which prohibit the importation of goods manufactured or produced using prison labour,⁷  and given that this topic has been the subject of ongoing dialogue, we accept that the issue could be considered controversial.

[17]  However, the Sunday item did not purport to be an in-depth or balanced “discussion” about the legitimacy of forced prison labour, or about whether or not goods produced in Chinese prison labour camps were making their way into the New Zealand market in contravention of our customs law. Rather, the story was clearly presented from the interviewee’s perspective, and focused on his own experiences in a Chinese prison. The Authority has previously determined that programmes which focused on individual stories, even though they may be connected to a wider issue, did not discuss controversial issues of public importance.⁸

[18]  The item was clearly framed as a personal story in the introduction (see paragraph [6] above), in which the presenter repeatedly said, “[name] says…”, and this was reinforced throughout the story, as the claims were either expressed by the man in his own words, or by the narrator paraphrasing what the man had told the programme. The narrator often preceded his comments with words such as “he says” or “according to”, sourcing the claims to the interviewee. Viewers would have understood the claims as a reflection of the man’s personal experience and interpretation of events, and would not have expected to be presented with competing viewpoints.

[19]  We are therefore satisfied that the item did not amount to a discussion of a controversial issue of public importance to which the balance standard applied. Accordingly, we decline to uphold the Standard 4 complaint.

Was the item inaccurate or misleading?

[20]  The accuracy standard (Standard 5) 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 receiving misinformation and thereby being misled.⁹

[21]  Mr Tan argued that the item lacked accuracy, so viewers were not able to form a correct understanding of the issues discussed. The points raised by the complainant are outlined above at paragraph [11].

[22]  In our view, in the context of a personal story focusing on one man’s experiences in a Chinese prison, viewers would have understood the claims made in the item to be the interviewee’s opinion, as opposed to statements of fact. Statements which are clearly distinguishable as comment or opinion are exempt from the requirements of the accuracy standard (guideline 5a). By way of example, and to address some of the points raised by Mr Tan, the use of the terms “slave” and “torture”, and claims that “doing business in China is very dangerous”, that “China’s law is bad”, and that the prison factories were “highly profitable”, were clearly the man’s personal opinion, not points of fact. As we have noted above, many of these points were made by the man first-hand, while others were preceded by phrases which made it clear the views were his, for example, “[Name] says he was a slave”.

[23]  Further, we consider that the broadcaster made reasonable efforts to ensure there was some foundation for the claims made by the man. The reporter questioned him about his allegations that goods manufactured in Chinese prisons were being exported to the West, and the programme attempted to investigate the claims but said the “trail ran dry”. In addition, the broadcaster said that both Amnesty International and the Laogai Foundation (a human rights group based in New York), supported the man’s claims, and that there were many international news reports about this issue. The broadcast included an interview with a representative from Amnesty International, who stated:

• “Often Chinese factories will in fact be a front for labour happening in other places, in other factories, possibly forced labour in prisons and detention centres…”
• “Well forced labour or slave labour really amount to the same thing for us. The evidence that Amnesty International has is of the widespread use of savage beatings, of electrocution of prisoners, and of people being shackled into agonising positions for long periods of time. So that’s entirely consistent with the information we have on what is going on in Chinese detention centres.”

[24]  We are satisfied that the item was not misleading or inaccurate and we decline to uphold the Standard 5 complaint.

Was the item unfair to any person or organisation taking part or referred to?

[25]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[26]  Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.¹⁰

[27]  As noted above, Mr Tan argued that the impact of the item was to “discredit and insult” China, Chinese people, and free trading with China. He also argued that the programme was disrespectful to the victim of the man’s crime and the victim’s family. In addition, he said the programme did not seek comment from the prison.

[28]  The fairness standard only applies to organisations and individuals taking part or referred to in broadcasts. It does not apply to China as a country, or to Chinese people, or traders, in general. The item did not refer to the family of the victim and the focus of the item was the interviewee and his experiences in prison, not the crime he committed, and so the victim’s family was not treated unfairly.

[29]  The only organisation that was named in the item, albeit very briefly, was the prison where the man served his sentence. Mr Tan accepted in his complaint that the human rights conditions in Chinese prisons were “terrible”, but he objected to the use of the word “slave” labour as opposed to “forced prison labour”. He also opposed the claim that prison products were exported to the West. However, we reiterate that the focus of the item was the interviewee and his personal story, and the comments made about the conditions of the prison including the use of the term “slave”, and the claim products manufactured in prison labour camps were exported to Western nations, were clearly the man’s personal views based on his experiences. In this sense, viewers would not have been left with an unfair impression of the particular prison, as that was not the focus, and was mentioned only fleetingly.

[30]  We are satisfied that all individuals and organisations taking part and referred to in the item were treated fairly and we decline to uphold this part of the complaint.

Did the broadcast encourage discrimination against, or the denigration of any section of the community?

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

[32]  The term “denigration” has consistently been defined by the Authority as blackening the reputation of a class of people.¹¹  “Discrimination” has been consistently defined as encouraging the different treatment of the members of a particular group to their detriment.¹²  It is also well-established that in light of the requirements of the 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.¹³

[33]  Mr Tan argued that the item portrayed the “Chinese community” in a highly offensive way. He was concerned that the item contained “very negative information about visiting China, doing business in China and buying ‘Made in China’ products”.

[34]  TVNZ reiterated that the focus of the item was one man and his alleged treatment in a Chinese prison. It did not agree that the item denigrated or discriminated against all Chinese people or all Chinese businesses, and it said that no inference was made about those groups.

[35]  We agree. The focus of the item was specific to China’s prison system, as experienced by one man. Guideline 7a to the discrimination and denigration standard says that the standard is not intended to prevent the broadcast of material that is the expression of genuinely held opinion in news, current affairs and factual programmes. Further, no comment or negative inference was made about Chinese people in general.

[36]  We therefore find that the item did not encourage discrimination against, or the denigration of, China or Chinese people as a section of the community, and we decline to uphold this part of the complaint.

Did the broadcasts breach the other standards raised in the complaint?

[37]  As noted in the introduction, the complainant raised many standards in his original complaint, but we limited the focus of our determination to the standards mentioned in his referral and final comment. For the sake of completeness, we have summarised our reasons for finding that the other standards raised by Mr Tan were not breached, as follows:

• The good taste and decency standard is primarily concerned with sexual material, nudity, coarse language and violence, or material likely to cause offence or distress to the general audience. Most viewers would not have been offended or distressed by the use of the term “slave” in place of “forced” labour, or by the claim products manufactured in Chinese prisons were exported to the West, in the context of a personal story in a current affairs programme targeted at adults (Standard 1).
• The item did not glamorise, promote or condone breaking the law by failing to show remorse for the victim and the victim’s family, as alleged by the complainant; the victim was not the focus, and it was clear that the man featured had suffered the consequences of his actions (Standard 2).
• Sunday was a current affairs programme rated PGR and targeted at adults, and it did not contain anything that would have caused panic, unwarranted alarm or distress to the general audience, including children under the supervision of a parent or adult. Nor did it disadvantage the viewer in any way (Standard 8).

[38]  Accordingly, we decline to uphold the complaint that these standards were breached.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
25 July 2013

Appendix

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

1               Forrest Tan’s formal complaint letters (including attached letter and list of questions to
                broadcaster) – 1 and 2 April 2013

2              TVNZ’s response to the complaint letters – 30 April 2013

3              Mr Tan’s referral to the Authority (including attachments) – 6 May 2013

4              TVNZ’s final comment – 8 May 2013

5              Mr Tan’s final comment – 10 June 2013

²www.customs.gov.cn/publish/portal0//tab399/module1147/info10505.htm

³Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁴For further discussion of these concepts see Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) and Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Radio (Broadcasting Standards Authority, June 2009).

⁵Powell and CanWest TVWorks Ltd, Decision No. 2005-125

⁶See, for example, Dewe and TVWorks Ltd, Decision No. 2008-076.

⁷http://www.customs.govt.nz/news/resources/factsheets/Documents/Fact%20Sheet%2005.pdf

⁸See, for example, Egg Producers Federation of New Zealand (Inc) and TVWorks Ltd, Decision No. 2009-053.

⁹Bush and Television New Zealand Ltd, Decision No. 2010-036

¹⁰Commerce Commission and TVWorks Ltd, Decision No. 2008-014

¹¹E.g. Mental Health Commission and CanWest RadioWorks Ltd, Decision No. 2006-030

¹²See, for example, Teoh and Television New Zealand Ltd, Decision No. 2008-091.

¹³For example, McCartain and Angus and The Radio Network Ltd, Decision No. 2002-152