New Zealand Society for the Protection of the Unborn Child Inc and TV3 Network Services Ltd - 2003-051
- P Cartwright (Chair)
- Tapu Misa
- R Bryant
- J H McGregor
- New Zealand Society for the Protection
- the Unborn Child Inc (SPUC)
ProgrammeInside New Zealand: The Hardest Decision
BroadcasterTV3 Network Services Ltd
Inside New Zealand: The Hardest Decision – documentary – abortion –inaccurate statements – unbalanced – undermined New Zealand legislation
Standard 2 and Guideline 2a – lawful standard maintained – no uphold
Standard 4 – programme balanced – no uphold
Standard 5 and Guidelines 5b, 5d & 5e – mixture of fact & opinion – accurate and impartial – no uphold
This headnote does not form part of the decision.
 Inside New Zealand: The Hardest Decision was a documentary which followed three women while they made a decision about whether or not to have an abortion. Several other women, who had been through the same experience, were also interviewed on the programme. The documentary was broadcast on TV3 at 8.30pm on 28 November 2002.
 The New Zealand Society for the Protection of the Unborn Child Inc (SPUC) complained to TV3 Network Services Ltd, the broadcaster, that the programme was unbalanced and contained inaccurate and misleading information. It contended the programme also undermined New Zealand law as it pertained to the "killing of the unborn child".
 In response, TV3 stated that there were no identifiable breaches of the relevant standards and, in addition, the programme had demonstrated the utmost respect for the principles of New Zealand law regarding abortion.
 Dissatisfied with TV3’s decision, SPUC referred its complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority declines to uphold the complaint.
 The members of the Authority have viewed a video of the documentary complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Inside New Zealand: The Hardest Decision, was a documentary broadcast on TV3 at 8.30pm on 28 November 2002. It followed the dilemma three women faced when reaching a decision about whether or not to have an abortion. Other women who had been through the experience, two health professionals and several "pro-lifers", were also interviewed on the programme.
 SPUC complained to TV3 that the documentary was unbalanced and contained inaccurate information. It also contended that the programme undermined New Zealand law relating to abortion.
 The following statements, in the complainant’s view, presented a false picture and breached the requirement for accuracy:
Abortion was legalised in New Zealand in 1977.
Abortion hasn’t always been legal in New Zealand. In 1977, the Contraception, Sterilisation and Abortion Act was passed.
… Even though we have safe legal abortion services …
 SPUC contended that by stressing "abortion is legal", viewers were left with the impression that it was automatically available. This, it said, was contrary to New Zealand legislation.
 SPUC stated that central to every abortion decision was "the right of the unborn child". The programme’s failure to describe and reinforce this aspect of the decision was, according to the complainant, misleading and in breach of the accuracy requirement.
 The complainant argued that there were other misleading statements which related to women’s health issues prior to New Zealand amending its legislation. These included:
Before legal abortion was available in New Zealand, many women put themselves at great risk.
Women were dying, and women were being maimed and physically damaged by the abortion process. They were getting serious infections …
 The complainant maintained that these statements were not only in breach of the requirement for accuracy but also the requirement for balance.
 Similarly, the complainant submitted that the documentary was inaccurate because it failed to advise that there were many cases of secondary medical intervention resulting from complications following induced abortions. Therefore, the following statement made by a health professional [Dr Nash] was misleading:
… from the medical point of view, we don’t even need to record one termination on your medical history, it has no effect at all on your future health.
 The complainant also contended that, although a second health professional [Dr Atkinson] was interviewed, the nature of her information was restricted to the notion that "life started from the moment of conception". This, it said, was in direct contrast to the generality of the statements made by Dr Nash.
 TV3 assessed the complaint under Standards 2, 4 and 5 of the Free-to-Air Television Code of Broadcasting Practice. The Standards, and relevant Guidelines, read:
Standard 2 Law and Order
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.
2a Broadcasters must respect the principles of law which sustain our society.
Standard 4 Balance
In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
Standard 5 Accuracy
News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
5b Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.
5d Factual reports on the one hand, and opinion, analysis and comment on the other, should be clearly distinguishable.
5e Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.
The Broadcaster’s Response to the Complainant
 TV3 considered each of the Standards and responded to the complainant’s submissions as follows:
 In respect of the complainant’s submission regarding the accuracy of references in the documentary to abortion being legal in New Zealand, TV3 argued that abortion was legal in New Zealand under certain circumstances, specifically section 32 of the Contraception, Sterilisation and Abortion Act 1997. It contended that statements in the documentary did not imply that abortion was available on demand, simply that it was legal provided certain conditions were met. TV3 concluded that the statements complained about were accurate and declined to uphold this aspect of the complaint.
 In declining to uphold the complaint that Dr Nash showed scant regard for the "rights of the unborn child", TV3 contended that while Dr Nash may not have referred specifically to the "rights" of the unborn child, it considered that the documentary clearly reflected that point. In terms of the women involved in the item, the "rights" of the unborn child were perceived as being central to their decision-making process. The women continually referred to the child they were carrying. Specifically, they spoke to the child, wrote it letters and discussed their feelings of love and the dilemma they were facing. It was difficult to ignore the humanity of the women and the focus on the unborn children.
 The complainant’s third point dealt with Dr Nash’s claims about the dangers of illegal abortions prior to 1977, but specifically related to an allegation that such claims were scaremongering. TV3 responded that as the comments were reported by a reliable source and clearly identified as opinion or analysis, it was not required to assess the accuracy of the claims. However, it did note that the anecdotal evidence given by the one woman in the documentary who had an abortion prior to 1977, supported Dr Nash’s claims.
 In relation to the complainant’s allegation that, contrary to Dr Nash’s comment regarding the risks of termination, there is a dearth of information on morbidity following induced abortions, TV3 stated:
Again we do not need to determine where the risks of termination lie, as the statement by Dr Nash is a reported comment from a reliable source and clearly identified as her comment, opinion or analysis.
 The final accuracy aspect raised by the complainant referred to Dr Nash’s comment:
We do not have abortion on request in this country, we have abortion for those who have clarity about their decision.
The complainant alleged that such a statement was not only misleading, but also undermined the rule of law. TV3 submitted that:
… these comments made by Dr Nash were clearly identified, and made by a reliable source, they are also inter-cut with Bronte’s description of her recent experience at an abortion clinic. Bronte’s descriptions are consistent with Dr Nash’s comments especially in regard to feelings of ambivalence towards the termination and refusal for the procedure.
 In declining to uphold the complaint under Standard 5, which related to aspects of Dr Nash’s comment, TV3 contended that, "Dr Nash’s extensive experience in the field allowed her to draw an informed medical opinion about such issues".
 TV3 noted that in cases where there were alleged aspects of imbalance it was necessary to view the programme as a whole. In its view, the item "was the very model of a balanced programme" and it maintained that "considerable effort was made and opportunities given to present all significant points of view".
 In terms of the allegation that Dr Nash’s views outweighed the contribution of other participants in the programme, TV3 disagreed and wrote:
Dr Nash serves as one voice in the discussion. Her opinions are in the main medical and have little bearing on the personal and emotional discussions that are the chief focus of the documentary.
Comments by Dr Atkinson and the issue of the time at which life begins, were given appropriate weight and prominence. Dr Atkinson’s comments were clearly presented as well-informed opinion.
 Accordingly, TV3 declined to uphold this aspect of the complaint.
 Regarding Dr Nash’s comments about the reasons for turning down a woman seeking an early pregnancy termination, TV3 submitted that it had dealt with the complaint under Standard 5 above.
 As to the complainant’s contention that Dr Nash’s comments were legally incorrect, TV3 said that such a determination was not within its jurisdiction. It maintained that the programme as a whole, "demonstrated the utmost respect for the principles of law".
 TV3 therefore also declined to uphold this aspect of the complaint.
The Referral to the Broadcasting Standards Authority
 Dissatisfied with the broadcaster’s response, SPUC contended that, when producing a documentary, the broadcaster should be vigilant in ensuring that comments made by those expected to be in possession of the facts, were presented correctly. In this respect, SPUC alleged, TV3 had failed.
 SPUC reiterated that abortion was not legal in New Zealand, particularly when dealing with the healthy child of a healthy mother. It stated:
In specific cases, intended to be abnormal and rare, the crime may be excused … and deemed not unlawful. Unless the statements made in the programme offered this wider interpretation of the law then they were incorrect and misleading.
 SPUC also referred to the process of procuring an abortion and alleged that Dr Nash’s comments were completely at odds with the legal process. It stated:
In New Zealand, the decision about whether an abortion will be induced is not made by the mother, even though she may request the procedure … In law the decision is made by the medical practitioner who is to perform the abortion, in agreement with at least one other medical practitioner.
 The complainant concluded:
Dr Nash’s comments minimised the reality of induced abortions and, without a countervailing statement to redress this, significant error was permitted which resulted in the programme breaching standards of accuracy, balance and the protection of law and order.
The Broadcaster’s Response to the Authority
 TV3 reiterated that Dr Nash was a reliable and appropriate source to express an opinion on both the historical nature of abortion, and the issue of legal abortion in New Zealand today.
 TV3 concluded that the focus of the programme was a reflection of the experiences, emotions and thoughts of the women who took part, and not a "how to obtain" or the "whys and wherefores" of the abortion debate. It added that the focus of the programme was strictly an editorial decision and was not subject to the broadcasting standards.
The Complainant’s Final Comment
 The complainant reiterated its contention that Dr Nash’s comments were inaccurate and, had misinformed viewers. It referred particularly to the following statement:
The main reason to turn a woman down who is seeking an early pregnancy termination is ambivalence, that is, she is undecided.
 SPUC contended that by omitting to explain the narrow band of circumstances in which an induced abortion was "legal", and by failing to explain that the decision to terminate a pregnancy could be made only by the "operating surgeon" and at least one other "certifying consultant", the programme was inaccurate.
 SPUC concluded by stating that as an expert, Dr Nash’s comments would have been taken seriously by viewers and could not be relegated to mere opinion, as advanced by TV3.
The Authority’s Determination
 A documentary, broadcast by TV3 on Inside New Zealand, dealt with the decision several women made about whether or not to have an abortion. SPUC complained that the programme breached broadcasting standards relating to law and order, balance and accuracy.
Maintenance of Law and Order
 Standard 2 requires broadcasters to maintain standards consistent with the maintenance of law and order. In the Authority’s view, TV3’s approach was consistent with those principles. The particular phrase complained about, "We do not have abortion on request in this country, we have abortion for those who have clarity about their decision", was not, in the Authority’s view, referring to the legal test, but rather to the reasons why an abortion clinic may turn down a woman seeking an abortion, who meets the legal criteria. The comments were made in the context of one woman’s explanation of her decision-making process and, in the Authority’s view, reaffirmed New Zealand’s legal position that abortion is not available on demand.
 The Authority concludes that there was nothing in the documentary which indicates that the broadcaster did not maintain standards consistent with the maintenance of law and order. Accordingly, the Authority declines to uphold this aspect of the complaint.
 Standard 4 requires broadcasters to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
 The Authority notes that abortion continues to be an ongoing controversial issue of public importance. The focus of the programme was on the decision-making of three women and it is the Authority’s view that the broadcaster did make a reasonable effort to ensure significant points of view were presented on this point. On the broader issue of abortion, the Authority notes in particular Dr Atkinson’s contribution regarding the issue of when life begins. In addition, of the three women who participated in the documentary, one decided against having an abortion. Also of significance was the inclusion of the pro-life viewpoint. Accordingly, the Authority declines to uphold Standard 4.
 Standard 5 requires broadcasters, in the preparation and presentation of news and current affairs programmes, to be truthful and accurate on points of fact.
The Authority considers that the various statements, alleged by the complainant to be in breach of the standard, were a mixture of fact and opinion. Furthermore, the Authority does not consider any of the factual statements to be incorrect and therefore, in its view, the standard was not contravened.
 The Authority disagrees with the allegation made by the complainant that the viewers were left with an incorrect understanding on the availability of abortion in New Zealand. In the Authority’s view, by stressing that abortion was legal in New Zealand, the broadcaster was simply acknowledging the law change in 1977, that made abortion legal in certain circumstances. The programme made clear that abortion was not "available on demand". Accordingly, the Authority also declines to uphold this aspect of the complaint.
Bill of Rights
 The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards and applies them in a manner which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.
For the above reasons, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
19 June 2003
The following correspondence was received and considered by the Authority when it determined this complaint:
- The New Zealand Society for the Protection of the Unborn Child Inc’s Complaint to TV3 Network Services Ltd – 15 January 2003 (plus attachments)
- TV3’s Response to the Formal Complaint – 12 February 2003
- SPUC’s Referral to the Broadcasting Standards Authority – 10 March 2003
- TV3’s Response to the Authority – 7 April 2003
- SPUC’s Final Comment – 2 May 2003