BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has not upheld a complaint about an item on 1 News reporting on the separation of migrant families in the United States. The complaint was that references to President Donald Trump’s ‘immigration crackdown’ and ‘Trump’s policy’ of separating children from their parents were misleading, unbalanced and unfair as the relevant law pre-dated Trump’s presidency. The Authority concluded the broadcast did not breach the accuracy, balance or fairness standards, as the references reasonably reflected the Trump administration’s position regarding the enforcement of criminal prosecutions for illegal immigrants. The Authority emphasised the high level of public and political interest in the story and found that any limitation on the right to freedom of expression on this occasion would be unjustified.

Not Upheld: Accuracy, Balance, Fairness

The broadcast

[1]  An item on 1 News focused on a group of migrant parents in the United States who had been released from jail and were still to be reunited with their children. The item referred to US President Donald Trump’s ‘immigration crackdown’ and ‘policy of separating migrant parents from their children’, as follows:

• ‘…protestors are preparing for a weekend of demonstrations across America against Donald Trump’s immigration crackdown.’ (Presenter) [emphasis added]
• ‘…she’s among the first released from jail since Donald Trump’s policy of separating migrant parents from their children started.’ (BBC Reporter) [emphasis added]

[2]  The programme was broadcast at 6pm on 30 June 2018 on TVNZ 1.

The complaint

[3]  John Wakelin complained that the broadcast breached the accuracy, balance and fairness standards of the Free-to-Air Television Code of Broadcasting Practice because in his view:

• This item was factually inaccurate and intentionally misleading, as the law separating illegal immigrants and their children pre-existed Donald Trump’s presidency.
• The policy was not enacted by President Trump and his administration, but was simply being enforced as President Trump was legally obligated to do.
• President Trump and his administration are trying to introduce legislation that prevents the separation of children ‘from their illegal immigrant parents’ (referring to an article published on 20 June 2018).¹
• TVNZ’s misrepresentation was biased and unfair to President Trump and his administration.

The broadcaster’s response

[4]  In response to the complaint, TVNZ submitted the broadcast did not breach any of the broadcasting standards raised, taking into account:

• The separation of children from their parents at the border was a result of the Trump regime ‘taking a different approach from previous administrations’ to the same immigration law.²
• The immigration policy of another country (the US) is not a controversial issue of public importance in New Zealand, and therefore the item was not required to provide balancing comment.
• Criticism of public figures is an important component of the right to freedom of expression, and the item was not personally abusive towards President Trump or his administration.

The standards

[5]  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 receiving misinformation and thereby being misled.

[6]  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.

[7]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct.

Our findings

[8]  When we consider a complaint that a broadcast has breached broadcasting standards, we first look at the right to freedom of expression, which is valued highly in New Zealand and enshrined in the New Zealand Bill of Rights Act 1990. We weigh the broadcaster’s right to freedom of expression against the level of actual or potential harm that might be caused by the broadcast. In this case the harm alleged is the potential for the public to be misinformed about the actions and policies of President Trump’s administration, through what the complainant considers to be unbalanced, unfair and inaccurate reporting.

[9]  Informing viewers on the actions and effects of political regimes both locally and internationally helps create an active public discourse, which is an important part of a free and democratic society. Alongside the political interest in this story, there was also an element of human interest, considering the potential impact of separating families. Against this background we have considered whether any real or potential harm was caused by the item in the manner alleged by the complainant.

Accuracy

[10]  We first considered whether the broadcaster made reasonable efforts to ensure the references in the item to President Trump’s ‘immigration crackdown’ and ‘Trump’s policy’ were accurate and would not mislead viewers.

[11]  We understand from the material provided by the broadcaster in response to the complaint that there is no law that in itself requires illegal immigrant families to be separated in the US. Rather, we understand the Trump administration has been prosecuting all unlawful immigrants as criminal offenders, resulting in the separation of families as they are taken into custody.

[12]  We therefore find that references to President Trump’s ‘immigration crackdown’ and ‘policy of separating migrant parents from their children’ were accurate descriptions of the implementation of policy by the Trump administration, when it came to the enforcement of criminal prosecutions for illegal immigrants. The item did not suggest that President Trump or his administration were responsible for enacting such a law requiring the separation of families. We do not think viewers would have been misled by the broadcast in the way suggested in the complaint.

[13]  We therefore do not find any breach of the accuracy standard.

Balance

[14]  When determining a complaint under the balance standard we must first consider whether the broadcast ‘discussed’ a ‘controversial issue of public importance’. The issue of separation of migrant families in the US attracted high levels of publicity and ongoing public discourse both internationally and in New Zealand. However it will not always be the case that items reporting on overseas developments will amount to discussion of a controversial issue of public importance locally in New Zealand.

[15]  In this case, the item was narrowly focused on the experiences and release of the first migrant detainees, reporting to viewers that this group had not yet been reunited with their children. The item was clearly framed from an overseas perspective, reporting on newsworthy developments in an area that had already been extensively reported.³

[16]  In this context, we do not consider that the complainant’s primary concern – that the item was biased regarding the origins of the relevant law and policy – amounted to a controversial issue of public importance that was discussed in this item, or that it triggered the requirement to present alternative views.

[17]  In any event, we note the item did point to other perspectives, including that of the Trump administration, for example: ‘Donald Trump announced no more parents would be separated from their children but it now appears that could just mean whole families would be detained together, and for longer.’

[18]  For these reasons we do not uphold the complaint under the balance standard.

Fairness

[19]  It is well established that the threshold for finding a breach of the fairness standard, in relation to public figures and politicians who are familiar with dealing with the media, is higher than for a layperson or someone unfamiliar with the media.⁴ It is an important aspect of the right to freedom of expression that public figures and politicians can reasonably expect to be subject to criticism and scrutiny in relation to their professional capacity.

[20]  While this item may have been viewed as critical of President Trump, it was a straightforward news report and did not go beyond what the President and his administration could reasonably expect, or stray into unfairness.

[21]  Accordingly we do not uphold the complaint under the fairness standard.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
26 October 2018

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:
1     John Wakelin’s formal complaint – 1 July 2018
2     TVNZ’s response to the complaint – 27 July 2018
3     Mr Wakelin’s referral to the Authority – 27 July 2018
4     TVNZ’s confirmation of no further comment – 31 August 2018

¹ Flores agreement: Trump’s executive order to end family separation might run afoul of a 1997 court ruling (Vox, 20 June 2018)

² See: Trump Again Falsely Blames Democrats for His Separation Tactic (New York Times, 6 July 2018), Melania Trump blames 'both sides' for child separations at border (The Guardian, 17 July 2018) and No, Donald Trump’s separation of immigrant families was not Barack Obama’s policy (Politifact, 19 July 2018)

³ The Authority has previously found that news items which simply report information about what may be controversial issues, for example, where there has been a newsworthy development, are not ‘discussions’ which require balancing perspectives. See, for example, Brill and Television New Zealand Ltd, Decision No. 2018-028 at [24]

⁴ See, for example, Holland and MediaWorks TV Ltd, Decision No. 2017-048