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 that an interview on Morning Report following the US Supreme Court decision overturning Roe v Wade (regarding rights to abortion) breached the balance standard. The complainant alleged the broadcast was unbalanced as both interviewees chosen were from the ‘pro-choice’ perspective, and the ‘pro-life’ point of view was not mentioned, nor a ‘pro-life’ interviewee included. The Authority found that while abortion access and related laws constitute a controversial issue of public importance, the full broadcast (in particular the news report immediately prior covering reactions in the US) included viewpoints from both sides of the issue. Further, the nature of the issue is such that the public can reasonably be expected to be aware of the major perspectives in the debate through ongoing media coverage.

Not Upheld: Balance

The broadcast

[1]  During Morning Report on 27 June 2022, hosts Susie Ferguson and Corin Dann reported on reactions in the United States to the US Supreme Court’s decision overturning Roe v Wade (regarding rights to abortion access in the US). Following that report, Ferguson interviewed Terry Bellamak of the Abortion Law Reform Association NZ, and reproductive rights campaigner Dame Margaret Sparrow ‘who opened one of the country’s first clinics’. She opened the interview by putting to them, ‘Experts believe shockwaves of the US decision will be felt here. …What do you think the decision that has come from the Supreme Court in America means to New Zealand?’ 

The complaint

[2]  Neville Watkin complained the programme breached the balance standard of the Code of Broadcasting Standards in New Zealand on the basis the broadcast did not include a ‘pro-life’ perspective. The key points of the complaint were:

• Abortion law is a controversial issue of public importance.
• Interviewees on both sides of such an issue should have been included.
• ‘The item consisted of TWO interviews, but BOTH of the interviewees were prominent NZ abortion rights ("pro-choice") campaigners… There was no mention of the "pro-life" point of view, much less any attempt to balance the item by having one pro-choice and one pro-life interviewee.’
• ‘The [Broadcasting] Act requires RNZ to at least identify within each programme the major points of view, and to provide its listeners with an indication of when or where the alternative points of view will be, or have been, aired. Failure to do so surely cannot be considered to be balanced broadcasting as envisaged by the clear wording of The Act’.

[3]  The complainant also made comments regarding a general lack of balance by New Zealand broadcasters in relation to other controversial issues such as vaccine mandates and conversion therapy. These are outside the scope of our decision as they did not relate to a specific broadcast and therefore did not amount to a valid formal complaint.

The broadcaster’s response

[4]  RNZ did not uphold Watkin’s complaint, saying:

• It did not agree with the complainant’s interpretation of the requirements of the balance standard, namely the assertion that ‘it is clearly RNZ's responsibility under The Act to ensure interviewees representing both (or all) sides of the issue are included in the immediate broadcast.’
• ‘The balance standard does not require that every possible view on a complex issue be contained within one broadcast. A key consideration for the Authority when considering a complaint under this standard is whether viewers/listeners could reasonably be expected to be aware of views expressed in other coverage, including other media (ie is it an ongoing topic of debate).’
• ‘The Authority rarely upholds complaints under the balance standard that a broadcaster is only presenting a particular point of view if the topic has been widely discussed elsewhere from a variety of perspectives.’

The standard

[5]  The balance standard¹ states when controversial issues of public importance are discussed in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant viewpoints either in the same broadcast or in other broadcasts within the period of current interest unless the audience can reasonably be expected to be aware of significant viewpoints from other media coverage. It ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.²

[6]  The standard allows for balance to be achieved over time, within the period of current interest. It does not require every significant viewpoint to be presented in every programme that discusses a particular controversial issue of public importance.³ The requirement to present significant points of view is likely to be reduced, or in some cases negated:⁴  

• where it is clear from the programme’s introduction and the way in which the programme is presented:
  (a)  that the programme is not claiming, or intended, to be a balanced examination of an issue
  (b)  the programme is signalled as approaching the issue from a particular perspective.
• where the audience could reasonably be expected to be aware of views expressed in other coverage, including coverage by other broadcasters or media outlets.

Our decision

[7]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[8]  As a starting point, we considered the right to freedom of expression. Our task is to weigh the right to freedom of expression and the value and public interest in the broadcast, against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where limiting the right to freedom of expression is reasonable and justified by the level of harm.⁵

[9]  The first question for the Authority is whether the balance standard applied to this broadcast of Morning Report. A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to ‘news, current affairs and factual 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’.⁶

[10]  The Authority has consistently found abortion and related laws or changes to the law amount to a controversial issue of public importance (at least in an Aotearoa New Zealand context).⁷ The Authority has also found that in some cases law changes in the United States may be such an issue, recognising the potential international implications.⁸

[11]  This broadcast, and the interview segment the complainant is particularly concerned about, discussed the potential impact and implications for NZ of the US Supreme Court’s decision overturning Roe v Wade. The release of that decision generated a lot of debate and reaction in NZ from politicians, media and the public.⁹

[12]  For these reasons we are satisfied the broadcast discussed a controversial issue of public importance and the balance standard applied.

[13]  The next step is to assess whether the broadcaster sufficiently presented significant viewpoints on the issue either within this broadcast or within the period of current interest, taking into account, among other factors, the nature of this broadcast and the nature of the issue being discussed.¹⁰

[14]  The interview portion of the broadcast was clearly focused on the perspectives of two prominent advocates for abortion rights. As noted by the broadcaster, this is permitted under the balance standard. The standard does not require that in every interview a broadcaster must select an interviewee from each side of the issue being discussed.¹¹ The Authority has previously recognised that placing such a requirement on broadcasters would in itself effectively restrict freedom of expression.¹² Nor does the standard require equal time be given to each opposing viewpoint.¹³ However, a fair voice must be given to each viewpoint.¹⁴

[15]  We consider adequate balance was achieved in this broadcast through the opposing perspectives presented in the preceding news report, notably some brief ‘vox pop’ statements from ‘pro-life’ campaigners and a more substantial statement given by Republican Senator Lindsey Graham in support of the Supreme Court decision:

• ‘Jesus loves the little children of the world.’ (group singing)
• ‘Welcome to an America that will welcome every child.’ (vox-pop, pro-life campaigner 1)
• ‘Jubilation. I'm very, very happy right now. I haven't come down yet.’ (vox-pop, pro-life campaigner 2)
• ‘All of us in the conservative world have believed that there's nothing in the Constitution giving the federal government the right to regulate abortion. There's nothing in the Constitution that creates a right to abortion as a constitutional principle. This was judge made out of cloth law. Now, what this court has done is taken us back to pre-1973, where each state can decide through their elected officials when life begins and how to treat life. And this is a huge victory for the pro-life movement. President Trump deserves the lion's share of credit here. He fought like a tiger to put three constitutional conservative judges on the court. He stood by behind Kavanaugh and all of us who've been working for the last 50 years to get this right, to have a constitutional reset. Friday was a glorious day.’ (Senator Lindsey Graham)

[16]  Although no ‘pro-life’ advocate was interviewed regarding the NZ context, we consider these perspectives sufficiently conveyed the major alternative viewpoint that the complainant wished to be included in the broadcast. The interviewees also acknowledged the existence of opposing perspectives, for example stating ‘there will always be opposition to abortion, that's being realistic…’

[17] Further, the balance standard allows for balance to be achieved over time, and it recognises that for some issues the ‘period of current interest’ will be ongoing, meaning audiences can reasonably be expected to be aware of the major opposing viewpoints.¹⁵ Abortion is such an issue, having been hotly‑debated for many years and receiving significant media coverage of both sides of the debate, including by this broadcaster.¹⁶ This is also true for the specific issue of Roe v Wade being overturned.¹⁷ 

[18]  In these circumstances, we find no breach of the balance standard in this instance, nor any harm that justifies our intervention.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Susie Staley
Chair
22 November 2022    

Appendix

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

1  Neville Watkin's formal complaint to RNZ – 6 July 2022

2  RNZ's decision on the complaint – 22 July 2022

3  Watkin's referral to the Authority – 5 August 2022

4  RNZ confirming no further comments – 14 September 2022

¹ Standard 5, Code of Broadcasting Standards in New Zealand
² Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 14
³ Guideline 5.2
⁴ Guideline 5.4
⁵ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁶ Guideline 5.1
⁷Family First New Zealand & Right to Life Inc and Radio New Zealand Ltd, Decision No. 2013-095 at [15]; see also Boom and Television New Zealand Ltd, Decision No. 2022-059 at [11]
⁸Pask and Mediaworks TV Ltd, Decision No. 2019-057 at [19]
⁹ Thomas Coughlan “Prime Minister Jacinda Ardern on why she spoke out on Roe v Wade decision” NZ Herald (online ed, 29 June 2022); Tess McClure “Spotlight back on abortion in New Zealand after US Roe v Wade ruling” The Guardian (online ed, 29 June 2022)
¹⁰ Guidelines 5.1, 5.2, 5.4
¹¹ Guideline 5.4
¹²Bidwell and Radio New Zealand Ltd, Decision No. 2020-003 at [15]
¹³ Guideline 5.3
¹⁴ Guideline 5.3
¹⁵ Guidelines 5.2 and 5.4
¹⁶ For example, Sarah Robson “Abortion law reform: What you need to know” RNZ (online ed, 8 August 2019); “Abortion debate heats up in Auckland” RNZ (online ed, 25 May 2019); Katy Kenny “Q+A: Current abortion law and proposed changes” Stuff (online ed, 6 September 2017)
¹⁷ For example, “NZ politicians and the pro-life vs pro-choice debate” RNZ (online ed, 28 June 2022); Thomas Coughlan “Prime Minister Jacinda Ardern on why she spoke out on Roe v Wade decision” NZ Herald (online ed, 29 June 2022); “Roe v Wade shows why abortion dominates America's divisions” RNZ (online ed, 26 June 2022); Tess McClure “Spotlight back on abortion in New Zealand after US Roe v Wade ruling” The Guardian (online ed, 29 June 2022)