BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

All BSA's decisions on complaints 1990-present

Frank and Television New Zealand Ltd - 1995-001

Members
  • I W Gallaway (Chair)
  • W J Fraser
  • L M Loates
  • J R Morris
Dated
Complainant
  • Dennis Frank
Number
1995-001
Programme
Fraser
Channel/Station
TV One


Summary

Cannabis use was considered by the Fraser programme broadcast at 9.40pm on

Television One on 18 September. Four panellists and an invited studio audience

considered the questions of what harm (if any) does cannabis do and should its use be

a criminal offence.

Mr Frank complained to Television New Zealand Ltd, the broadcaster, that the

programme breached the broadcasting standards by including disinformation, by not

including a spokesperson for the large number of people who were successful but

nevertheless maintained a cannabis-smoking life-style and by adopting a narrow and

inappropriate definition of the term "decriminalisation".

Pointing out that the panellists and the audience – along with a politician from

Canberra who supported decriminalisation – represented a variety of perspectives and

that they were frequently challenged by the presenter, TVNZ declined to uphold the

complaint. Dissatisfied with TVNZ's response, Mr Frank referred his complaint to

the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.


For the reasons below, the Authority declined to uphold the complaint.


Decision

The members of the Authority have viewed the item complained about and have read

the correspondence (summarised in the Appendix). As is its practice, the Authority

has determined the complaint without a formal hearing.

The current affairs programme Fraser considered aspects of the debate about

marijuana, or cannabis, on 6 September. It was explained at the outset that the

programme – involving a panel of four, a selected studio audience and a politician from

Canberra - would consider two questions.

What harm does it do (if any)?

and

Should possession be a criminal offence?


Mr Frank complained to TVNZ that the programme was unbalanced. He was

concerned that the claims that cannabis was addictive and that it caused brain damage

in young people went unchallenged. Maintaining that the audience was "stacked", he

said that most users were not represented. In view of what he described as "the

climate of fear created by prohibition", he argued that it was inaccurate for the

programme to insist that there were "few constraints" on people speaking out. The

spokesperson for NORML who appeared, he added, was not the appropriate

representative for all cannabis users.

Disputing also the definition of decriminalisation used during the programme and the

effect of decriminalisation in Alaska, Mr Frank said the programme breached

standards G1, G6 and G20 of the Television Code of Broadcasting Practice.

TVNZ assessed the complaint under the nominated standards. The first two require

broadcasters:

G1  To be truthful and accurate on points of fact.

G6  To show balance, impartiality and fairness in dealing with political

matters, current affairs and all questions of a controversial nature.


The other one reads:


G20 No set formula can be advanced for the allocation of time to interested

parties on controversial issues. Broadcasters should aim to present all

significant sides in as fair a way as possible, and this can be done only by

judging every case on its merits.

Pointing out that the panel members, the studio audience and the politician from

Canberra included those from both sides of the debate on the issues raised, TVNZ

maintained that there had been a fair balance of views put forward as required by

standards G6 and G20. Further, it reported:

All these people participated – as did opponents of decriminalisation – in a free

and open discussion. No one was under constraints. If, as you seem to believe,

advocates of decriminalisation did not argue the case in the precise terms you

would have liked it was not for want of opportunity.


It argued that there had been no inaccuracies in breach of standard G1.


When he referred his complaint to the Authority, Mr Frank explained that he spoke

on behalf of a substantial section of the community who were cannabis users and who

were harassed and oppressed by agents of the state with whom journalists colluded.

In its response to the Authority on the referral, TVNZ rejected the allegations

contained in what it described as a "lengthy political statement".

In its assessment of the complaint, the Authority has focussed on the contents of the

programme broadcast on 18 September. The item set out to discuss two questions –

the first of which was to ask what harm (if any) does cannabis use do. The Authority

noted that various opinions were expressed, the findings of official reports were cited

and that there was some degree of consensus that cannabis use by young people

should be discouraged. The Authority does not consider that it is required by the

standards to determine the issue about the harm (or otherwise) of cannabis use. To

fulfil the requirement for balance, it considered that TVNZ had to ensure that the

debate included proponents from the different perspectives. As that occurred, the

Authority considered the standards had not been contravened.

The other issue focussed on was whether possession should be a criminal offence. On

several occasions, the programme defined "decriminalisation" for the purpose of the

debate. Mr Frank argued that the term "decriminalisation" was used inappropriately.

While appreciating that the definition used during the debate – a half-way house

between a criminal offence and legalisation – might not be one which those in favour of

complete decriminalisation would support, the Authority accepted that the definition

advanced was put clearly. As the definition of decriminalisation to be applied was

explicit, the Authority decided that the standards were not breached.

Mr Frank raised a number of other issues in his complaint which, as they were not

matters of broadcasting standards, the Authority has not addressed. It would record,

however, contrary to TVNZ's argument, that it believes that the illegality of cannabis

use does act as a constraint on users from speaking out. Nevertheless, even taking this

constraint into account, the Authority decided that the broadcast complained about

was well-balanced on the issues canvassed.

 

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


Signed for and on behalf of the Authority

 

Iain Gallaway
Chairperson
24 January 1995


Appendix

Mr Frank's Complaint to Television New Zealand Limited - 2 October 1994

Referring to his earlier formal complaint about a PrimeTime item broadcast on 6

September which reported on the increased efforts of anti-drug campaigners in

schools, Mr Dennis Frank of Auckland complained formally about the Fraser

programme broadcast at 9.40pm on 18 September.

The programme had discussed cannabis - both the impacts on health from its use (if

any) and the arguments for decriminalisation - and Mr Frank maintained that TVNZ,

in its efforts to present the opposing points of view, had advanced in fact "exclusively

the views of the dissident minority".

Mr Frank said the Fraser programme breached the standards for the following

reasons. First, the claim by one person that cannabis was addictive went unchallenged

although various government enquiries had invariably found to the contrary. In

addition, the false claim that cannabis causes brain damage in young people was not

rebutted. He wrote:

The traditional unbalanced representation of pro and con views of cannabis

usage was obvious in the stacked audience. It was pathetic that only non-users

were represented, apart from one who had long over-indulged and is now trying

to blame the herb instead of his own inadequacies. Why were the hundreds of

thousands of New Zealanders who have benefited from cannabis use for decades

now not represented on the programme??

Secondly, Mr Frank said that the presenter claimed incorrectly that there were few

constraints on people speaking out. The programme, Mr Frank added, did not

acknowledge the climate of fear created by prohibition.

Thirdly, the effects of decriminalisation on the numbers using cannabis in Alaska did

not acknowledge that there is a market saturation level which applies whether or not

there is prohibition.

Fourthly, Mr Frank said that the programme was offensive also in suggesting that

decriminalisation meant the arbitrary imposition of a spot fine. He observed:

Decriminalising something means the activity no longer causes the actor to be

legally treated like a criminal. If you want to continue to treat cannabis-smokers

like second-class citizens, but somewhat more benignly, be honest and say so.

People would respect journalists with the courage of their convictions, it's the

habitual closet fascism they find more contemptible.

He alleged that the programme breached standards G1, G6 and G20 of the Television

Code of Broadcasting Practice. In conclusion, he stated that the spokesperson for

NORML who appeared on the programme was not the appropriate representative for

the many New Zealanders (about one third of the country) disadvantaged by the

prohibition. Rather, he wrote, NORML acted on behalf of the victims of fascism.

TVNZ's Response to the Formal Complaint - 25 October 1994

TVNZ advised Mr Frank that his complaint about the Fraser programme which had

debated the decriminalisation of cannabis had been assessed under the nominated

standards. It pointed out that the panel had comprised four speakers - two from each

side of the debate - and one of the opponents of decriminalisation, a representative of

the "Woodstock" generation, was now a firm opponent of the drug. Further, the item

had included a lengthy interview with an Australian politician who had been involved

in and argued the case for decriminalisation. Participation by members of the studio

audience included those from both sides of the debate. TVNZ stated:

All these people participated - as did opponents of decriminalisation - in a free

and open discussion. No one was under constraints. If, as you seem to believe,

advocates of decriminalisation did not argue the case in the precise terms you

would have liked it was not for want of opportunity.

TVNZ also pointed to the programme's televote - which came out in favour of

decriminalisation - and explained that the presenter's role was to challenge views from

both sides of the argument vigorously. He had adopted that stance.

As there were no proven inaccuracies, TVNZ argued that standard G1 had not been

breached. As the guests had been chosen to present a fair balance of views, neither

standards G6 nor G20 had been contravened. The complaint was not upheld.

Mr Frank's Complaint to the Broadcasting Standards Authority - 30 October

1994

Explaining that he spoke on behalf of the section of the community against whom

TVNZ discriminated, Mr Frank said cannabis users were harassed and oppressed by

agents of the state with whom journalists colluded. He said that he convened the

Greens' justice policy working group which was evolving a policy of

decriminalisation. While that policy was supported by a tacit consensus, he said that

there was a reluctance to address the issue. As a result:

When victims are not allowed to speak publicly, their concerns can be ignored,

misrepresented or down-played by others who disapprove of them. Few

politicians like to back a losing side. Disinformation and lies have consequently

been the staple diet of viewers of telecasts of news and current affairs coverage

of cannabis since I was a teenager. It is extremely bad for the mental health of

the community when people are continuously subjected to propaganda that

misrepresents reality. It is difficult to formulate public policy on an issue that

affects a large section of the community when all these people are so cowed into

silence that they dare not say openly what they believe is true, based on their

own personal experience. The truth about the use of the herb cannabis sativa

will remain unknown to the public until the third of the country that uses it are

able to tell the truth as they see and feel it.

Support for law reform was weak, he said, which allowed journalists to cater to the

"dangerous drug" prejudice. He continued:

Government inquiries have always found cannabis to be a relatively harmless

herb, and it is immoral for journalists to attempt to create an opposite view by

the misrepresentation of scientific evidence. Until the journalists create a media

forum for balanced consideration of the cannabis issue, politicians and would-be

politicians will remain afraid of being made the victim of biased and warped

media treatment of the issue.

He repeated the substance of his complaint as contained in his letter to TVNZ and

stated that TVNZ's response had misrepresented his views. TVNZ, he argued, was

unwilling to acknowledge its collusion with the denial of free speech.

In summary, he stated:

1 TVNZ appears not to have broadcast the fact that government findings

and the consensus of scientific opinion is that cannabis is relatively

harmless and non-addictive. To the contrary, they have allowed ignorant

people on their broadcasts to create the opposite impression.

2 The presenter/journalists TVNZ uses demonstrate a consistent bias, both

in their choice of sources and guests, and in their editorialising and

presentation.

3 TVNZ consistently discriminates against significantly large sections of the

population: people who have maintained successful business and

professional careers whilst continuing a lifestyle that includes cannabis-

smoking, and those who graduated with university careers when young

and maintaining a cannabis-smoking lifestyle.

4 TVNZ is colluding with the Leader of the Opposition in an attempt to

misrepresent the nature of decriminalisation. When you decriminalise

someone, you stop treating them like criminals. When you decriminalise

an activity, you remove the legislation that defines the unlawful nature of

the activity, and remove state regulatory activity that targets offenders. I

gather Helen Clark and TVNZ want to continue to target the same third of

the country and victimise them at random, but more benignly than current

victimisation procedures require. The aggrieved third of the country,

meanwhile, just wishes these monkeys would get off their back and leave

them alone, since an intelligent dialogue is obviously too hard. I've tried

to appeal to the consciences of the decision-makers at TVNZ, because I'd

prefer to see an intelligent dialogue happen, but it seems they are

incapable of agreeing to such a moral course of action.

TVNZ's Response to the Authority - 14 November 1994

In its report to the Authority, TVNZ pointed out that two distinct formal complaints

were involved. The first was the PrimeTime item on 6 September and the second, the

Fraser programme on 18 September. As Mr Frank had failed to refer to the

Authority his complaint about the PrimeTime item within the statutorily imposed 20

working days, TVNZ pointed out that the Authority was statutorily time barred from

considering it.

TVNZ described the referral of the complaint about the Fraser item as a "lengthy

political statement" which had not addressed the substance of its response to the

complaints. The summary (noted above), TVNZ maintained, had "very little to do"

with the complaint about the broadcast. It continued:

Sweeping statements such as "TVNZ constantly discriminates against

significantly large sections of the population" have no place, we suggest, in an

Authority review of decisions made by TVNZ on specific programmes and

specific matters arising from those programmes.

Mr Frank's assertion that TVNZ is colluding with the Leader of the Opposition

strikes us as a ludicrous statement and would come, we are sure, as a

considerable surprise to Hon Helen Clark.

Because of the absence of specific comment by Mr Frank on its findings on the

complaint about the Fraser programme, TVNZ declined to comment further.

Mr Frank's Final Comment - 20 November 1994

Explaining that the reference to the complaint about the PrimeTime item was included

only to illustrate the consistent nature of TVNZ's approach, Mr Frank said his

complaint about Fraser was made on behalf of the aggrieved third of the country.

Mr Frank argued that TVNZ had continued to fail to address the substance of his

complaint. When referring his complaint to the Authority, he had questioned both

TVNZ's collusion with those who denied the right of free speech to a section of the

community and its exclusion from the programme of successful people who were

cannabis smokers.

While collusion between TVNZ and the Leader of the Opposition might be

coincidental, it nevertheless accounted for the low public repute in which both groups

were held. Only two sides of the three-sided decriminalisation debate were advanced

and the exclusion of the third perspective amounted to a breach of standards G1 and

G20 and, as a result, contravention of standard G6.