BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

A segment on The Project reported on ‘hateful attacks’ occurring during Pride month, including claims of discrimination at Bethlehem College (and the Ministry of Education’s announcement it will investigate the issue) and the burning down of a Rainbow Youth centre in Tauranga. The segment included an interview with a rainbow activist who considered ‘extremist Christians’ had burnt the centre down. The presenters discussed the issue following the report and noted they hoped the investigation would bring about ‘some change in a place that really needs it.’ The complainant considered the segment breached various standards as the cause of the fire was under investigation at the time of the broadcast, and the College was portrayed unfairly. The Authority did not uphold the complaint, finding the relevant comments did not reach the high threshold justifying a restriction on freedom of expression. The Authority also found the College was not required to have an opportunity to respond in the circumstances.

Not Upheld: Discrimination and Denigration, Fairness, Balance, Accuracy

The broadcast

[1]  On 29 June 2022, The Project reported on events taking place around Aotearoa New Zealand for Pride month which the presenter noted should have been a ‘celebration for our rainbow community’ but was marred by some ‘hateful attacks’. The segment included reports on:

• negativity during ‘rainbow storytime sessions’ at a queer friendly church in Greymouth | Māwhera
• claims of discrimination at Bethlehem College (which are being investigated by the Ministry of Education | Te Tāhuhu o te Mātauranga). This report included comments from the Prime Minister made in a post‑Cabinet press conference in response to a question about the matter
• the burning down of a Rainbow Youth centre in Tauranga | Tauranga Moana
• a Nelson | Whakatū Christian counsellor who said they would continue practising conversion therapy following the prohibition of such practices.

[2]  During the segment, the programme interviewed a rainbow¹ activist who noted:

Extremist Christians spend so much of their time complaining about how the queer community is shoving their lifestyle down their throat. But they quite literally burnt down our safe space because they didn't like us.

[3]  Following the report, the presenters discussed the issue in the studio and the following exchanges occurred:

Mark Richardson:  I think there's always going to be that small element of just, well, basically dickheads. It's going to be hard to get rid of them. Perhaps we come up with some sort of conversion therapy for dickheads.

...

Kanoa Lloyd:  I do think it's up to us as individuals to be good allies. And I think it is some nasty individuals who are perpetrating this violence. But what really concerns me is the normalisation of homophobia in institutions and places like our schools, where every kid should feel comfortable and safe and happy to go. So I really look forward to the results of this investigation that the Ministry of Education is doing into Bethlehem College. And I hope that it brings about some change in a place that really needs it.

Jesse Mulligan:  Maybe the fact that that's made headlines and we're talking about it, and it's been widely condemned is a positive sign, maybe it means it's rare.

The complaint

[4]  Wilhelmina Carstensen complained the broadcast breached the discrimination and denigration, balance, accuracy and fairness standards of the Free-to-Air Television Code of Broadcasting Practice as:

• The activist’s comments regarding ‘extremist Christians’ had the effect of ‘slandering the Christian community without any evidence or proof. Nobody on the Project team challenged these comments… therefore allowing these slanderous comments to denigrate the Christian community’ and ‘implied that the presenters agreed with this attack on Christians. At the time of the interview, the cause of the fire was under investigation. Evidence has since come to life that a pair of homeless people, vagrants, have been charged with arson and at this time they are awaiting trial.’ ‘These comments were inaccurate, the reporting was unbalanced, and unfair.’
• Lloyd’s subsequent comments regarding Bethlehem College implied the College ‘is a homophobic institution. Had the team at The Project referred to the comments made by [the] Chairman of Bethlehem College Board Of Trustees, as published in the Bay of Plenty Times, Saturday June 25, which refutes the accusation that Bethlehem College is a homophobic institution, the school's position regarding their values would have been clarified and some balance would have been given to the story.’

The broadcaster’s response

[5]  Discovery did not uphold the complaint, considering the commentary and discussion was ‘typical of the free and frank expression of views The Project routinely features’:

Discrimination and Denigration

• The comments ‘did not reach the threshold to be considered hate speech or a sustained attack, which is required to find a breach of the Discrimination and Denigration standard.’
• Discovery did not consider the comments ‘would lead to the widespread denigration of all Christians.’

Balance

• The standard does not require that a rebuttal is broadcast for every point that is made.
• The ‘homophobic acts and hateful behaviour throughout Pride Month were widely reported in the New Zealand media… viewers could reasonably be expected to be aware of other perspectives beyond The Project's reporting on this topic.’

Accuracy

• The activist’s and Lloyd’s comments were clearly their opinion, which are exempt from the standard.

Fairness

• The Fairness standard only applies to specific individuals or organisations referred to in a Broadcast, not sections of the community like Christians. This aspect of the complaint is addressed under the discrimination and denigration standard.

The standards

[6]  The discrimination and denigration standard² protects against broadcasts which encourage the discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief.

[7]  The fairness standard³ protects the dignity and reputation of those featured in programmes.⁴ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

[8]  We consider the discrimination and denigration and fairness standards are most relevant to the substance of the complaint, and have focused our consideration on these standards accordingly. We deal with the remaining standards briefly at paragraph [19].

Our analysis

[9]  We have watched the broadcast and read the correspondence listed in the Appendix.

[10]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is demonstrably justified in a free and democratic society.⁵

Discrimination and Denigration

[11]  The standard applies to recognised ‘sections of the community’. We accept people of Christian faith constitute such a section for the purposes of the standard, therefore the standard applies. The standard does not apply to Bethlehem College as a single organisation, however. We address this part of the complaint under the fairness standard, below.

[12]  'Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community to their detriment. ‘Denigration’ is defined as devaluing the reputation of a particular section of the community.⁶ A high level of condemnation, often with an element of malice or nastiness, will usually be necessary to find that a broadcast encouraged discrimination or denigration in breach of the standard.⁷

[13]  Context must always be considered when assessing whether a broadcast encouraged discrimination or denigration.⁸ We have taken into account the following contextual factors:

• The Project is an unclassified news and current affairs programme (it is not required to carry a rating) and is targeted at an adult audience.⁹
• The Project’s presentation and style are both well-established. It includes a mixture of news and entertainment, and frequent comedy and banter among the hosts (some of whom are well-known comedians).¹⁰
• The segment reported on attacks on the rainbow community during Pride month.
• The segment noted ‘a suspicious fire’ burnt the centre down. At the time of the broadcast, the cause of the fire was under investigation.¹¹
• The activist’s comments did not relate to Christians as a group but to ‘extremist’ Christians and reflected their view of why the centre was burned down.
• The comments towards Christians were not repeated or sustained.
• In their following discussion, the presenters referred to ‘dickheads’ and ‘nasty individuals’.

[14]  We also do not consider there was an element of malice in the activist’s comment. In this context, and acknowledging the importance of freedom of expression and the high threshold required to find a breach, we do not consider the presenters, or the broadcast, encouraged the denigration of, or discrimination against, any section of the community.

Fairness

[15]  The fairness standard is concerned with preventing undue harm to the dignity and reputation of any person or organisation taking part or referred to in a programme. The complaint alleges the College and Christians were treated unfairly. Similar to previous complaints, we do not consider a religion, which is a set of beliefs, is an ‘organisation’ for the purposes of the standard.¹² In any event, for the reasons outlined above, we do not consider Christians were treated unfairly taking the broadcast as a whole.

[16]  Guideline 11d to the standard notes an organisation should usually be given a fair and reasonable opportunity to comment where it might be adversely affected by a broadcast.¹³ In determining whether the College might have been adversely affected by the broadcast, we note:

• Claims of discriminatory practices at the College, and the Ministry of Education’s announcement of an investigation into the College were both widely reported at the time.¹⁴
• These claims constituted one part of the segment which focused more broadly on rainbow community experiences during Pride month.
• The broadcast acknowledged ‘claims emerged that Bethlehem College has discriminated against queer students. It's now being investigated by the Ministry of Education.’
• Lloyd’s comments near the end of the segment regarding the importance of schools being safe and comfortable for kids and her ‘hope’ that the investigation would bring about ‘some change in a place that really needs it.’

[17]  We consider this part of the broadcast constituted a straightforward reiteration of a news report and was unlikely to adversely affect the College. Very little detail was given in the broadcast on this point, with only broad allegations referred to, and the audience would have understood the issue was currently under investigation by the Ministry of Education. We acknowledge the audience could have understood Lloyd’s comments as implying the College was a ‘place that really needs’ change. However, we consider this was Lloyd’s commentary and opinion on the issue, to which she is entitled, and any harm is mitigated by the reference to the Ministry’s impending investigation. In this context, the audience is unlikely to have been left with an unduly negative impression of the College justifying a restriction on freedom of expression.

[18]  As we do not consider the College was adversely affected by the broadcast, it was not required to be given an opportunity to comment. Further, we do not consider the broadcast was required to include a reference to the opinion piece referred to by the complainant.

Remaining Standards

[19]  The remaining standards either did not apply or were not breached:

• Balance:¹⁵ The standard only applies where a controversial issue of public importance is discussed.¹⁶ An issue of public importance is something that would have a significant potential impact on, or be of concern to, members of the New Zealand public. A controversial issue will be one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.¹⁷ This aspect of the complaint is concerned with Bethlehem’s alleged portrayal as a ‘homophobic institution’. We do not consider the issue of whether the school is such an institution to be a controversial issue of public importance to which the standard applies. In any event, as the introduction to the segment signalled the particular perspective of the reports (being the marring of Pride events) and the events are the subject of other publications¹⁸ (and an investigation by the Ministry of Education) we do not consider further balancing material was required.
• Accuracy:¹⁹ The standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion.²⁰ We consider the comments alleged to be inaccurate were the individual’s opinion, which they are entitled to express, and are not subject to the standard.

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

Susie Staley
Chair
26 October 2022    

Appendix

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

1  Wilhelmina Carstensen’s formal complaint to Discovery – 30 June 2022

2  Discovery’s decision on complaint – 26 July 2022

3  Carstensen’s referral to Authority – 2 August 2022

4  Discovery’s confirmation of no further comments – 5 August 2022

¹ We use 'rainbow' as an umbrella term to describe all people whose sexual orientation, gender identity, gender expression or sexual characteristics are diverse, or differ from binary norms
² Standard 6, Free-To-Air Television Code of Broadcasting Practice
³ Standard 11, Free-To-Air Television Code of Broadcasting Practice
⁴ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁵ Freedom of Expression, Broadcasting Standards in New Zealand Codebook, page 6
⁶ Guideline 6a
⁷ Guideline 6b; Cant and Television New Zealand Ltd, Decision No. 2021-030 at [14]
⁸ Guideline 6d
⁹ Hibbs and Discovery NZ Ltd, Decision No. 2022-074 at [11]
¹⁰ As above
¹¹ See Ireland Hendry-Hennet “Suspicious fire: $41,000 donated to Rainbow Youth in 24 hours after drop-in centre burns down” Newshub (online ed, 17 June 2022), and “Two arrested after Rainbow Youth Tauranga building gutted by fire” 1 News (online ed, 7 July 2022), which was published after the broadcast
¹² See Kemp and Television New Zealand Ltd, Decision No. 2022-058 at [15] and the decisions cited at footnote 9
¹³ Guideline 11d
¹⁴ “'Serious concerns raised' about Bethlehem College, Ardern says” 1 News (online ed, 20 June 2022); “Bethlehem College: Petition calls for independent investigation into alleged 'abuse' at the school” NZ Herald (online ed, 14 June 2022)
¹⁵ Standard 8, Free-To-Air Television Code of Broadcasting Practice
¹⁶ Guideline 8a
¹⁷ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹⁸ See footnote 15
¹⁹ Standard 9, Free-To-Air Television Code of Broadcasting Practice
²⁰ Guideline 9a