Early Childhood Council Inc and Television New Zealand Ltd - 2013-017
- Peter Radich (Chair)
- Te Raumawhitu Kupenga
- Mary Anne Shanahan
- Leigh Pearson
- Early Childhood Council Inc (ECC)
BroadcasterTelevision New Zealand Ltd
Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Breakfast – interview with President of Home Education Learning Organisation about the benefits of home-based childcare education, as opposed to daycare – President made comments which reflected negatively on daycare – allegedly unbalanced in breach of controversial issues standard
Standard 4 (controversial issues) – item discussed a controversial issue of public importance – programme framed the interview as a debate about the merits of “Daycare vs Homecare” but item itself had flavour of advertorial – taking into account likely audience, insufficient balance was provided – broadcaster did not make reasonable efforts, or give reasonable opportunities, to present significant viewpoints – upheld
This headnote does not form part of the decision.
 An item on Breakfast, titled “Daycare vs Homecare”, included a live studio interview with the President of the Home Education Learning Organisation (HELO), about the benefits of home-based early childhood education (ECE), in light of a Government review of that sector. The item was broadcast on 4 February 2013 on TV One.
 The Early Childhood Council (ECC), the largest representative body of licensed early childhood centres in New Zealand, made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item was unbalanced because while the President of HELO was able to advocate for home-based ECE, no one was present to advocate for daycare, so a significant viewpoint was absent.
 The issue is whether the broadcast breached the controversial issues standard as set out in the Free-to-Air Television Code of Broadcasting Practice.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
Nature of the item and freedom of expression
 The Breakfast interview with the President of HELO was conducted in the context of a Government review of home-based ECE, in response to recommendations made by an ECE Taskforce and Sector Advisory Groups established to focus on improving the quality and accountability of home-based networks.1 The presenter introduced the interview as follows:
Well it’s a decision many working parents agonise over: Do we send our kids to daycare or keep them at home with a nanny? Daycare is widely recognised as the most cost-effective option, but home-based childcare is growing fast, making up nearly 10 percent of kids in early childcare education. This increase has led to a Government review and a group of the main providers called Home Education Learning Organisation, or HELO, is helping out. President [name] joins me now.
 The President of HELO, as a representative of home-based ECE, expressed views in support of that sector, for example, that children benefited from one-on-one interactions and relationships in small group environments. In contrast, she alleged that large group environments could cause stress and “overstimulation” which could be detrimental to early brain development.
 We recognise that discussions about ECE, and more broadly issues relating to child welfare and wellbeing, have significant public importance and carry high value in terms of freedom of expression.
 This value must be weighed against the level of harm alleged to have been caused by the broadcast, in terms of the underlying objectives of the relevant broadcasting standards.2 Here, the complainant argued that the programme allowed the President of HELO to make “unchallenged, inaccurate and derogatory statements about what happens in early childcare centres”, “slandering” their ECE model. It said that “thousands of parents spend much time deciding which to utilise: daycare or homecare”, and that the omission of the daycare perspective prevented viewers from arriving at an informed opinion about the relative merits of daycare and homecare.
Was the item unbalanced in breach of the controversial issues standard?
 The balance standard (Standard 4) 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 balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.3
 We have reached the conclusion that the Breakfast item was unbalanced in breach of Standard 4. We explain below the reasoning that has led us to this conclusion.
Application of the standard and issues for our consideration
 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”.4
 In addition, guideline 4b to the balance standard lists a number of factors that should be considered when assessing whether a broadcaster has fulfilled its obligations under Standard 4. Guideline 4b states that an assessment of whether a reasonable range of views has been allowed for takes account of some or all of the following:
- the programme introduction;
- the approach of the programme (e.g. taking a particular perspective);
- whether viewers could reasonably be expected to be aware of views expressed in other coverage.
 These factors help to determine the level of balance required, by informing the Authority on how viewers would reasonably have perceived or understood the programme(s) in question, and whether they were likely to have been deceived or misinformed by the omission or treatment of a significant perspective.
 The primary issues for our determination are:
- Was the Breakfast item a news, current affairs or factual programme to which the standard applied?
- Did the item discuss a controversial issue of public importance?
- Did the item approach the issue from a particular perspective, meaning there was a lesser requirement to provide balance?
- Were significant viewpoints presented in the item, to an extent that was appropriate, given the approach taken by the programme?
Was the Breakfast item a news, current affairs or factual programme to which the standard applied?
 Breakfast is an unclassified news and current affairs programme, previously described by the broadcaster as “a mixture of news, serious interviews, magazine segments, [and] reviews”.5 Given the subject matter (see paragraph ), the interview was more towards the news end of the spectrum of items on Breakfast, than the entertainment end, but we do not think it would have been interpreted by most to be “hard news” largely due to the tenor of the item as it eventuated. Items on this type of programme, and their style of presentation, are increasingly light-hearted and lifestyle-based, even if the subject matter is a serious issue. We think that this raises difficulties in terms of applying the balance standard and determining what level of balance is required.
 Nevertheless, we are satisfied that this item amounted to a current affairs programme to which the balance standard applied, taking into account the topic under discussion.
Did the item discuss a controversial issue of public importance?
 The Authority has typically defined an issue of public importance as something that would have a “significant potential impact on, or be of concern to, members of the New Zealand public”.6 A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.7
 ECC argued that the issue of whether to send children to daycare or to utilise home-based childcare was of concern to many people with young children, and had topical currency and political importance, given the Government’s review of home-based ECE.
 TVNZ argued that the issue was not controversial or of public importance because it did not attract “nationwide controversy” or excite “massive conflicting opinion and public debate”.
 We are satisfied that the focus of the item, that is, the question of whether parents should choose home-based ECE or daycare, is something that would be of concern to members of the New Zealand public, and particularly the caregivers of young children. It is also an issue that had topical currency, given the Government’s review of the home-based ECE sector. Further, as demonstrated by the Breakfast item and this complaint, the issue is one which excites conflicting opinion and debate. We disagree with TVNZ that to trigger the standard the issue must be one which has “nationwide” controversy or excites “massive” conflicting opinion.
 We therefore find that the item amounted to a discussion of a controversial issue of public importance to which the balance standard applied.
Did the item approach the issue from a particular perspective, meaning there was a lesser requirement to provide balance?
 As noted above, guideline 4b recognises that a programme which clearly approaches a topic from a particular perspective may allow a departure from strict compliance with the requirements of Standard 4 – though it does not completely absolve the broadcaster from its obligation to provide balance.8
 ECC argued that the interview was structured in terms of a controversy or debate about whether parents should choose centre-based or home-based ECE, and so viewers would have expected to be presented with both perspectives.
 TVNZ argued that the item was framed as a discussion about home-based ECE, and that it would have been obvious to viewers that the interviewee was coming from a particular perspective, meaning it was not required to present the full range of competing viewpoints as long as significant opposing viewpoints were sufficiently acknowledged.
 We acknowledge the broadcaster’s view that the item approached the issue from the home-based perspective, in light of the Government’s review of that sector. The presenter introduced the item by referring to an increase in home-based ECE which had stimulated the review, and noted that HELO was assisting with that review, so viewers were made aware that the President of HELO organisation was speaking from that perspective. Had the interview followed this style of presentation, then we likely would have agreed with the broadcaster that a mere acknowledgment of the other perspective was sufficient to fulfil its obligations under the standard.
 However, Breakfast used other editorial components which clearly framed the interview as a debate. As noted by the complainant, the interview was characterised as a debate in the presenter’s introductory comment, “Do we send our kids to daycare or keep them at home with a nanny?” This was reinforced by the onscreen banner that appeared intermittingly throughout the interview, reading “Daycare vs. Homecare”. We therefore think that something more than a mere acknowledgement of, or brief comment about, the daycare perspective was required, to ensure that viewers were sufficiently informed about significant views on the topic.
Were significant viewpoints presented in the item, to an extent that was appropriate, given the approach taken by the programme?
 ECC argued that the interview was an “advertorial” for home-based childcare, constructed to generate fear in parents that early childcare centres might “damage” their children.
 TVNZ contended that the daycare perspective was provided by the presenter’s line of questioning throughout the interview, which it considered sufficient, given the approach taken by the programme (see TVNZ’s arguments at paragraph ). The broadcaster said that it periodically screened items about the benefits and disadvantages of different forms of childcare, and so over time all issues and significant positions had been discussed and broadcast.
 The Authority has recognised in past decisions that significant points of view can be provided in a variety of ways in addition to alternative perspectives presented first-hand, including the use of “devil’s advocate” questioning,9 or by acknowledging the existence of other significant perspectives.10 In this respect, the broadcaster was not required to accept the ECC’s offer of an interview, so long as balance was adequately achieved through other means.
 For the reasons expressed below, we have reached the view that this interview was unbalanced. The daycare perspective was not adequately injected into the discussion, so viewers were not given sufficient information to make up their own minds about the merits of the ECE alternatives.
 We accept that the presenter did to some extent acknowledge the other perspective, through the following comments:
- “I guess there are two trains of thought here, because I have talked to a lot people who swear by daycare and say, ‘my child needs to go to daycare, they need to be surrounded by other children, for their stimulation’.”
- “Do you think there are some kids though… you know, the child that’s got so much energy – and you do talk to parents that say, ‘I needed them to go to a centre where they were around lots of people because they were just so frantic’ – do you accept that there is the odd child that perhaps [home-based ECE] doesn’t suit?”
 However, we are not satisfied that these brief comments were sufficient to achieve the level of balance required, especially given that a portion of the segment was dedicated to comments that were critical of daycare and suggested that it was detrimental to children, as follows:
President: It is really important that we use research here because we know children do
need to develop socially and emotionally. We’ve tended to hot-house our
children… into large group settings, when the research tells us small children
need to be in small groups…
Presenter: I was looking at some research – 25,000 children are now diagnosed with
behavioural and emotional problems, and anxiety is increasing in young kids,
and you’re saying by having them at home that can help that?
President: Oh, definitely. This is where it goes into the early brain development, and what
happens to a little one, is that they need to be self-regulated, and if they are in
a large group environment with changing faces and noise, or too much
stimulation, their brain goes into overdrive and there is a cortisol response,
and they go into a heightened level of stress – so a heightened arousal, or
the little one will just zone out and go actually very hypo and just go very
quiet… humans need to be in close relationships and connected with
someone that they really get to know well, and that person can respond to
their needs and keep them regulated… so we are not burning what’s
happening in the brain in those important years.
 These comments, and particularly the references to research and specific figures, and the subsequent linking of those figures to the placement of children in large group environments – in other words, daycare – had the potential to cause alarm and concern to viewers. This was a situation where the representative of one organisation was given free rein to advance their business model, to the disadvantage of their main competitor. In this sense, we agree with the complainant that the item had the flavour of an advertorial, rather than a serious discussion.
 Standard 4 recognises that balance can be achieved across the period of current interest in which a topic is discussed. While the broadcaster contended that it “periodically” screened items about the benefits and problems with different forms of childcare, it has not referred us to any specific broadcasts on this topic around the time of the Breakfast interview, so we are not convinced that reasonable efforts were made in this respect to present the daycare perspective in another programme.
 Looking at the objectives of the balance standard (see paragraph ), we are satisfied that the omission of the daycare perspective, and the broadcast of comments that reflected negatively on that sector, had the potential to misinform the audience and influence parents’ decisions regarding the wellbeing of their children. This programme was broadcast at a time when it was likely to be seen by parents of young children getting ready for the day. While we accept it was “lite news”, it ought to have been better balanced than it was. Alternatively, it needed to be framed more carefully so that viewers were not expecting a debate, only to get something closer to an advertorial, comprising unchallenged assertions from one side. Overall, viewers were not provided with enough information, in the form of competing viewpoints, to make up their own minds about the merits of each ECE option.
 We are satisfied that upholding the balance complaint would not unreasonably restrict the broadcaster’s right to freedom of expression because requiring the presentation of more information in the form of an alternative viewpoint, promotes, rather than hinders, the free flow of information and free speech principles.
 Accordingly, we uphold the Standard 4 complaint.
For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Breakfast on 4 February 2013 breached Standard 4 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. We are satisfied that in the circumstances, publication of this decision will serve as a reminder to TVNZ to ensure that when interviewees coming from a particular perspective discuss controversial issues of public importance, and especially where the discussion is framed as a debate, efforts are made to challenge those views or to provide alternative viewpoints during other programmes within the period of current interest.
Signed for and on behalf of the Authority
20 August 2013
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Early Childhood Council’s formal complaint – 11 February 2013
2 TVNZ’s response to the complaint – 8 March 2013
3 ECC’s referral to the Authority – 5 April 2013
4 TVNZ’s response to the Authority – 27 May 2013
5 ECC’s final comment – 10 June 2013
6 TVNZ’s confirmation of no final comment – 11 June 2013
2See sections 5 and 14 of the New Zealand Bill of Rights Act 1990.
3Commerce Commission and TVWorks Ltd, Decision No. 2008-014
4For further discussion of these concepts see Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) and Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Radio (Broadcasting Standards Authority, June 2009)
5E.g. McCarron and Television New Zealand Ltd, Decision No. 2010-160
6Powell and CanWest TVWorks Ltd, Decision No. 2005-125
7See, for example, Dewe and TVWorks Ltd, Decision No. 2008-076.
8See, for example, Anderson and Television New Zealand Ltd, Decision No. 2004-224.
9See, for example, Boyce and Radio New Zealand Ltd, Decision No. 2011-163, Signer and Bailey and Radio New Zealand Ltd, Decision No. 2011-111, and Brooking and Television New Zealand Ltd, Decision No. 2009-012.
10See, for example, Butler et al and Television New Zealand Ltd, Decision No. 2009-063.