BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An item on 1 News reported on an influx of refugees and migrants crossing the border from the United States of America (US) into Canada to claim refugee status. The reporter said that this influx was due to uncertainty after the election of Donald Trump as President, and a ‘loophole’ in the law which meant that ‘if a person can make it onto Canadian soil, they’re able to claim asylum’. The Authority found that the term ‘loophole’ was a reasonable description of a gap in the 2004 Canada-US Safe Third Country Agreement, in which refugee claimants seeking entry into Canada by crossing the border illegally would not be turned back to the US (as the first safe country), but rather arrested and allowed to claim refugee status in Canada. The reporter’s use of the term ‘loophole’ did not imply that those crossing the border were ‘taking advantage of a technicality’; rather it gave context to the decision of migrants and refugees to take drastic and dangerous measures to claim asylum.

Not Upheld: Accuracy 

Introduction

[1]  An item on 1 News reported on an influx of refugees and migrants crossing the border from the United States of America (US) into Canada to claim refugee status. The reporter said that this influx was due to uncertainty after the election of Donald Trump as President, and a ‘loophole’ in the law which meant that ‘if a person can make it onto Canadian soil, they’re able to claim asylum’.

[2]  Matt Taylor complained that use of the term ‘loophole’ was inaccurate, as the right to seek asylum was a recognised principle of international law.

[3]  The issue raised in Mr Taylor’s complaint is whether the broadcast breached the accuracy standard of the Free-to-Air Television Code of Broadcasting Practice.

[4]  The item was broadcast on 19 March 2017 on TVNZ 1. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Background

[5]  The 2004 Canada-US Safe Third Country Agreement (Agreement) requires refugee claimants to request refugee protection in the first safe country they arrive in (unless they qualify for an exception under the Agreement).¹ The Agreement applies only to refugee claimants who are seeking entry into the US or Canada at land border crossings, by train or at airports (if they have already been refused refugee protection in one country and are in transit through the other).

[6]  In the context of this item, the Agreement means that those who cross the border at official land-border checkpoints from the US into Canada to make their asylum claim would be turned back to the US (as the first safe country), while those crossing the border illegally would be arrested and subsequently allowed to claim refugee status in Canada.²

Was the broadcast inaccurate or misleading?

[7]  The accuracy standard (Standard 9) 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 being significantly misinformed.

The parties’ submissions

[8]  Mr Taylor submitted that:

• The reporter’s statement was materially inaccurate. The right to seek asylum was not a ‘loophole’ in the law, but ‘a well-established principle of international law’.
• Framing this as a ‘loophole’ implied that the people shown in the story were taking advantage of a technicality and doing something wrong.

[9]  TVNZ submitted that:

• The Safe Third Country Agreement provided that those seeking asylum must do so in the first safe country they land in. Those travelling from the US to Canada would therefore be turned back at the Canadian border to make their claim in the US.
• The reporter referred to a ‘loophole’ enabling those who travelled to Canada from the US illegally to make a claim for asylum, despite the Safe Third Country Agreement.
• It was not inaccurate or misleading for the reporter to use the term ‘loophole’ in this context. The issue was also described using the same term in many Canadian news stories.³

Our analysis

[10]  Our task in determining this complaint is to weigh the value of the news item, as well as the broadcaster’s right to freedom of expression, and the audience’s right to receive information, against the level of actual or potential harm that might be caused by the broadcast. In this case, the question is whether the use of the term ‘loophole’ in this news report justifies the imposition of a limit on the broadcaster’s right to impart information.

[11]  First, we note that it is not the role of this Authority to make a finding on whether the Agreement itself is consistent with principles of international law such as the right to seek asylum – that is a different, and debated, issue.⁴ The Authority instead must determine whether the use of the term ‘loophole’ amounted to a material inaccuracy in the context of the item, or would have misled viewers.

[12]  This item focused primarily on the personal stories of those featured as they crossed the border into Canada, and the impact of the election of Donald Trump on their decisions. It did not seek to provide a detailed analysis of the Agreement or its terms.

[13]  In this context, we consider that it was reasonable for the reporter to use the term ‘loophole’ to briefly summarise the main principle in the Agreement as well as a gap in the Agreement – that it does not cover border crossings not made through official checkpoints – and why this contributed to the influx of illegal border crossings. We do not consider the term implied that those crossing the border were ‘taking advantage of a technicality’. The item was sympathetic to those crossing and the hardships they faced, and made it clear that they felt they had no other choice. The reference to a ‘loophole’ gave context to their decision to take drastic and dangerous measures in order to seek asylum.

[14]  We therefore find that the reporter’s use of this term was not materially inaccurate and would not have misled audiences. We have not identified any harm arising from the broadcast which outweighed the broadcaster’s right to freedom of expression and the audience’s right to receive the broadcast in this case.

[15]  Accordingly we do not uphold the accuracy complaint.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
24 July 2017  

Appendix

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

1      Matt Taylor’s formal complaint – 19 March 2017
2      TVNZ’s response to the complaint – 18 April 2017
3      Mr Taylor’s referral to the Authority – 12 May 2017
4      TVNZ’s confirmation of no further comment – 26 May 2017  

¹ See http://www.cic.gc.ca/english/department/laws-policy/menu-safethird.asp. The four types of exceptions are family member exceptions, unaccompanied minors exceptions, document holder exceptions and public interest exceptions.

² See https://www.theglobeandmail.com/news/national/asylum-seekers-crossing-to-canada/article34095595/

³ TVNZ cited the following: A solution to Canada's refugee surge is no easy feat (21 February 2017, The Globe and Mail); Close the Safe Third Country loophole: Jason Kenney (26 February 2017, CTV News); Maxime Bernier wants to close loophole in Safe Third Country Agreement, send refugees back to US (14 March 2017, Global News Canada); Commentary: Close Canada's loophole for border-hoppers to even the field for refugees (21 March 2017, Global News Canada)

⁴ See, for example, arguments put forward in the following interviews: http://www.cbc.ca/radio/thecurrent/the-current-for-feb-10-2017-the-current-1.3974434/february-10-2017-full-episode-transcript-1.3977363#segment1