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The University of Otago and Television New Zealand Ltd - 2019-082 (9 June 2020)

Members
  • Judge Bill Hastings (Chair)
  • Paula Rose QSO
  • Susie Staley MNZM
Dated
Complainant
  • The University of Otago
Number
2019-082
Channel/Station
TV One

Summary

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

The University of Otago (the University) complained that three broadcasts by TVNZ, about sexual assault allegations by former and current students of the University, breached the fairness, balance and accuracy standards of the Free-to-Air Television Code of Broadcasting Practice. The complaint about Sunday was not upheld, but aspects of the complaint about Breakfast and 1 News were upheld. Overall, the Sunday programme was balanced, as it included comment from the University and was clearly signalled as coming from the perspective of the women interviewed. No material inaccuracies were identified, and the University was given a reasonable opportunity to respond. However, the Breakfast and 1 News items focussed more specifically on perceived shortcomings of the University and its decision not to be interviewed, resulting in unfairness to the University. The Authority also found that the Breakfast programme lacked balance. The Authority made no orders, and determined that the publication of the decision was sufficient to publicly notify the breach, to censure the broadcaster and to provide appropriate guidance to the broadcaster and broadcasters generally.

Sunday: Not Upheld: Fairness, Balance, Accuracy

Breakfast: Upheld: Fairness, Balance. Not Upheld: Accuracy (Action Taken)

1 News: Upheld: Fairness. Not Upheld: Balance, Accuracy

No orders


Introduction

[1]  On 9 June 2019, an item on Sunday reported on the treatment of allegations of sexual assault experienced by three women while studying at the University of Otago (the University). The item explored each of the women’s experiences of reporting or not reporting the incidents to the University, the outcomes they sought, and their perspectives on the culture at the University. The item also included interviews with two University PhD students who were conducting research into sexual assault on university campuses.

[2]  The next morning, on 10 June 2019, Breakfast reported on the item and the Sunday reporter, Tania Page, appeared on Breakfast to discuss the Sunday item with John Campbell. The two PhD students were also interviewed.

[3]  That evening, 1 News at 6pm also reported on the item focussing specifically on the University’s actions, with additional comments from the President of the New Zealand Union of Students’ Associations (NZUSA) and Melanie Beres, from Te Whare Tāwharau.1

[4]  Following consultation with the parties, we co-opted an independent advisor with a background in broadcasting, Leigh Pearson,2 under section 26(4) of the Broadcasting Act 1989 to assist us due to the absence of a broadcaster representative on the Authority at this time. While an advisor co-opted to the Authority does not have voting power, they are permitted to participate in the Authority’s deliberations.

[5]  As part of our consideration of this complaint, we have reviewed a recording of the broadcasts and have read the correspondence in the Appendix.

The complaint

[6]  The University complained that each of the three broadcasts breached the fairness, balance, and accuracy standards of the Free-to-Air Television Code of Broadcasting Practice.3 We have not attempted to summarise all of the University’s submissions in this decision. We have set out what we consider are the key arguments under each of the standards raised. Generally, the University’s concern was the programme was ‘constructed to present an overall picture of the University mishandling complaints’ and ‘[a]cross these three programmes, TVNZ has presented an entirely unfair and unbalanced portrayal of the significant work the University of Otago has done in the area of sexual violence…’

[7]  The University also:

  • emphasised that unfounded allegations of failure by an institution or individual to meet appropriate standards are extremely unfair (and there can ‘scarcely be more serious allegations against an institution than of intentional cover up’)
  • submitted that the level of the public interest and the sensitivity of the subject matter calls for the highest possible standards of responsibility from broadcasters
  • expressed concern that misrepresenting its responses to sexual assault allegations undermines its efforts to encourage victims of sexual violence to come forward.

The broadcaster’s response

[8]  TVNZ upheld one aspect of the accuracy complaint about Breakfast, agreeing that it was inaccurate to refer to the University ‘covering up’ sexual assault allegations. It did not uphold the remainder of the complaints.

[9]  In its response to the original complaint, TVNZ commented on the broadcast and background:

  • ‘Personal stories are at the heart of every Sunday item. The programme spoke to three women…who bravely shared their experiences of alleged sexual assault while studying, and what followed those alleged assaults.’
  • ‘The 2-part story that aired on June 9 discussed the impact of those experiences on their lives and studies, and how their complaints were handled by the University at the time.’
  • ‘The issue of sexual assaults on campus and the way universities deal with them was a significant subject of discussion in the New Zealand media in March.’

[10]  We set out the broadcaster’s response to the complaint under the relevant standards raised for each programme below.

Summary of findings

[11]  This complaint raises important issues about fairness, accuracy and balance in journalism. The broadcasts focussed on a sensitive subject, sexual assault complaints, and the question of how universities, and in this case how the University of Otago, should respond. These are challenging concerns about issues of public importance with high value. It is the role of the media to challenge, and asking, ‘how should sexual complaints be handled’ is an important question to ask. Best practice is continuing to evolve and so the issues addressed in the Sunday programme carry high public interest and high value, as communities grapple with suitable and effective policies and processes.4 The question of how to improve the way sexual harassment and assault allegations are handled in organisations continues to be an issue of focus for many institutions across the country.

[12]  Despite allegations against the University, viewers of Sunday would not have been left with an overall negative impression of the University. Sunday provided an insight into experiences of the women while they were students at the University. Viewers would have understood that the programme was approaching the subject from these women’s perspectives and that their complaints presented a challenging situation for the University, but that change in how sexual assault allegations were dealt with was happening. The University’s position, its actions, and its concern about this issue, was presented fairly and in a balanced way.

[13]  However, the subsequent broadcasts on Breakfast and 1 News changed the focus of the story. In our view the University was not treated fairly and, in the case of Breakfast, balance was also lacking. These two programmes fell short of the standards we expect of broadcasters in New Zealand and we have upheld aspects of the complaint about the Breakfast and 1 News programmes. We expand on our reasons for these findings and the application of the standards to these programmes below.

[14]  We have addressed this complaint by considering each programme and the allegations under each standard with respect to that programme.

The relevant standards

[15]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The purpose of this standard is to protect the dignity and reputation of those featured or referred to in broadcasts.5

[16]  If a person or organisation referred to or portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment for the programme, before a broadcast. What is ‘fair and reasonable’ will depend on the circumstances.6

[17]  The balance standard (Standard 8) 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.

[18]  The accuracy standard (Standard 9) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead. The objective of this standard is to protect audiences from being significantly misinformed.7

Preliminary issue

[19]  In its submissions, the University asked us to draw a number of inferences as to TVNZ’s intent in the Sunday programme. This was by reference to the approach taken in the subsequent Breakfast and 1 News items, and from a flyer8 distributed on the University campus.

[20]  We do not find these to be relevant considerations for the determination of whether there has been a breach of broadcasting standards. We determine complaints based on what is broadcast, not based on broadcasters’ intentions, inferred or otherwise.

Our analysis

Freedom of expression and public interest

[21]  The right to freedom of expression is the starting point in our consideration of complaints. Journalists and the media in general play an important role in scrutinising and holding to account those in power, which promotes free and frank public discourse and discussion. However, equally important is the level of actual or potential harm that may be caused by the broadcast. We therefore focus on determining whether the level of potential harm is proportionate to the value and public importance of the content. The threshold for intervention is high, but we may intervene where there is potential for harm that is disproportionate to the public interest.

[22]  This complaint raised a range of potential harms. The first is potential harm to the audience which may be misled and unable to make an informed assessment of the events that occurred. Where the issue of sexual assault allegations is explored, if the University’s process is not presented in a balanced and accurate way it may have the effect of discouraging complainants to come forward. The second is potential harm to the University – including the impact on its reputation, and on the trust and confidence that its students and community may have in it. The fairness and balance standards seek to mitigate such harm.

Sunday

The broadcast
[23]  In the following paragraphs we outline the overall structure of the programme. We do not deal with all elements in detail. Relevant aspects are discussed in our assessment of each standard.

[24]  The Sunday item featured the stories of two former students of the University, Michaela (not her real name) and Olivia, and one current student, Frances. PhD students Kayla Stewart and Lily Kay Ross provided commentary on the issue of campus sexual assault. The item was previewed by presenter Miriama Kamo (MK) in the following way:

MK:               Tonight on Sunday: confronting sexual assault on campus

Olivia:            I was so angry and frustrated and upset.

MK:               Three university students -

Frances:        Those feelings of, kind of, shame and resentment

Michaela:      Definitely the worst night of my life

MK:               Three alleged sexual assaults -

Tracey:9        She’s not the same daughter that I said goodbye to when I sent her to university.

MK:               What’s being done to stop this?

Kayla:            People are being assaulted by members of their own student community.

[25]  Michaela was interviewed in a segment which outlined her experience of alleged sexual assault one night in 2016, her complaints to the police and the University with the support of her parents, and the subsequent response by the University. Excerpts from emails between University staff were read out with the following introduction:

Within hours of Michaela coming forward to police, news of her complaint reached the University, setting off an exchange of emails between senior leaders. In those emails released under the Official Information Act, they say she’s getting support on campus, but also reveal concerns about reputational risk and image.

[26]  Michaela described her impression of the emails:

Damage control of: oh dear God, have you seen this? Like, what are we going to do about this? The outward image shows they’re a university that cares, but those emails show that what it came down to at the end of the day was reputation.

[27]  She also described one remark from an investigator at the University:

         Michaela:         He said to me one particular afternoon – you know what this is? This is just a bunch of boys who don’t know how to treat women, and when combined with alcohol they get even sillier.

         Tania Page:     The University says he was only referring to the flatmates who allegedly harassed her, not the student who allegedly assaulted her.

[28]  Olivia, who was a first year student in 2014, was interviewed about her experiences at Knox College in 2014. She commented on the culture and on experiences she had of being sexually harassed and asked for sex. The programme reported, ‘And in her second week [as a student], she says that she was raped.’ Excerpts from an email Olivia wrote to the Vice Chancellor were read out. The reporter then said, ‘Olivia says she felt her concerns weren’t taken seriously so she didn’t tell them about the rape.’

[29]  The following statement was included in the broadcast:

Knox College, which is privately owned, says its handling of [Olivia’s] original complaint was reviewed in-house and found satisfactory. Knox denounces the traditions Olivia was alarmed by, while the University said it didn’t believe that Olivia was asking to review what Knox had done, rather raising broader issues of sexual misconduct.

[30]  Kayla Stewart and Lily Kay Ross, both PhD students at the University, were interviewed. Ms Stewart discussed a recent survey she had conducted of student sexual experiences. Ms Ross discussed sexual misconduct policies and what she considered such policies should provide for.

[31]  Frances, the third woman, was a student at the University at the time of the broadcast:

Tania Page: She had heard we were investigating and got in touch. Frances says she was sexually assaulted too…She found Otago University’s new Sexual Violence Drop-In Centre really useful.

Frances:        I’m very thankful for it and for the services. And I, yeah, I cannot express my gratitude enough towards them and I’m really glad that there is a service that supports the mental health of survivors.

Tania Page:  Staff there outlined her options including making a formal complaint to the University, but she chose not to.

[32]  Throughout the programme the reporter read comments from the University. The first comment was introduced with an explanation that ‘Otago University wouldn’t give us an interview because of privacy concerns’. Extracts from the statement and documents provided by the University to the reporter were referred to during the programme.

[33]  The programme concluded with the following:

In a statement the University of Otago says it has no tolerance for sexual misconduct by students or staff and has devoted significant efforts to developing policies and practices. Te Whare Tāwharau, a new centre, supports students dealing with sexual violence incidents, and last week its new sexual misconduct policy was launched after extensive consultation and research.

Fairness

The complaint
[34]  The University submitted that the broadcast breached the fairness standard. Key points in its submission were:

  • It became apparent to the University staff corresponding with Sunday that the programme ‘was constructed to present an overall picture of the University mishandling complaints.’
  • The University was not informed that ‘a major thesis of the programme would be that it placed reputation above the appropriate handling of sexual complaints’.
  • The University was not provided with ‘a single particular of the alleged inadequacy of its handling of’ sexual complaint matters.
  • ‘Excerpts from the emails of both University staff and non-staff, and also of [Olivia], have been used in ways that significantly misrepresent their meaning.’
  • The University was not provided with sufficient details in order to respond to Frances’ story or her comments that she was aware of other cases where people had had their complaints ‘invalidated’ by the University.

[35]  TVNZ did not uphold the complaint under the fairness standard in regard to Sunday for the following reasons:

  • Sunday’s story reflected the University's work in this area. Sunday sourced information from a variety of sources, including the University, and made editorial decisions accordingly.’
  • ‘Prior to broadcast we exchanged numerous emails with the University, held conference calls (with legal counsel present) and supplied a large quantity of information to them, including an outline of the points we would ask about. Sunday was aware the University already held most of this information – in particular the internal emails, as it had been released to Michaela a number of years earlier.’

Our analysis
[36]  In our view, the important issue with respect to the Sunday programme is whether the University was dealt with fairly in the programme, namely whether the University was advised of the nature of the allegations raised, and given a fair and reasonable opportunity to comment.

[37]  A consideration of what is fair will depend on the nature of the programme (eg, news and current affairs, factual, dramatic, comedic or satirical). Context should also be considered, including the public interest in the broadcast.10Sunday is a current affairs programme and the item carried a high public interest for the New Zealand public. In applying the fairness standard, the key issues arising are:

  • Whether the University was adequately informed, prior to broadcast, of the nature of its involvement, taking into account the high public interest in the programme?11
  • Whether the University was adversely affected, and if so, was it given a fair and reasonable opportunity to comment, before the broadcast?12
  • Did any edited excerpts fairly reflect the tenor of the overall events or views expressed?13

[38]  We did not agree that the Sunday programme demonstrated that the University ‘mishandled complaints’ or that it prioritised reputation over student welfare (although it was apparent that Michaela may have held that view). The subsequent news items put that specific lens over the Sunday programme. We found that, overall, the University was given a fair and reasonable opportunity to respond.

Adequately informed prior to broadcast
[39] The University provided us with evidence of extensive communication between Sunday producers and the University’s communications team, prior to broadcast. Contact was initiated by Sunday on 14 May 2019 with a request for an interview from the University.

[40]  We found these emails showed that Sunday provided the University with details of all material issues it was considering and included information about the women’s stories. This would have indicated to the University the nature of the programme that Sunday was intending to produce. The University held the documents which were the subject of discussion in the programme, and was alerted to the fact that they would be considered in the programme. If the University wished to put any statements in the documents into context then it had the opportunity to do so. Therefore, we found that Sunday provided sufficient information for the University to comment.

[41]  Communications from TVNZ to the University signalled the position that each of the women would be taking in the broadcast, for example:

Her wellbeing was not the priority…as a result of the process, she felt let down and is critical of the University’s approach to handling sensitive matters like hers.

To that end, we would ask how the University responded in this case, what approach was taken…what discussions took place and what changes have occurred as a result.

[42]  The broadcaster was under no obligation, for example, to further elaborate upon the implications drawn by Michaela from the correspondence. Over the two-week period of discussion with the Sunday team, the University engaged its professional communications team and external lawyers – a clear indication that it was concerned not only about the content Sunday sought, but also about its reputation. As a large organisation, experienced in dealing with the media, and with the resources to engage a professional communications team, it is reasonable to expect that the University would have understood the media environment in which it was operating and the implications of the materials provided to it.

[43]  We also acknowledge the University’s position that it was not able to respond in respect of the ‘other cases’ mentioned by Frances (where people had had their complaints ‘invalidated’ by the University). However, Frances herself is quoted in Sunday as saying:

Of course I haven’t heard about every single case that has gone through there.

[44]  In addition, this statement is immediately followed by voice over indicating that the University had investigated 27 complaints, half of which had led to disciplinary action.

[45]  Overall, we consider the University was adequately and fairly informed prior to the broadcast about the nature of the programme.

Fair and reasonable opportunity to comment

[46]  We found that the University was given fair and reasonable opportunities to comment for the programme. It is a well-established high profile professional institution and is experienced dealing with media and the public. There was extensive communication between TVNZ and the University prior to broadcast, lasting over two weeks which included repeated invitations for an interview, phone conferences and ample information about the anticipated interview.

[47]  While the students featured expressed their experiences and opinions, Sunday programme viewers would have understood from other information conveyed that:

  • the University made efforts to support the students’ welfare (including through the establishment of the new Te Whare Tāwharau centre and focus on the development of appropriate policies and practices)
  • the University had taken steps to investigate Michaela’s complaints and had supported her in a number of ways (including through student health and counselling services and through arranging extensions on assignments and a separate study area so she could avoid the male student)
  • Olivia’s comments reflected a culture she personally had experienced
  • Frances had received valuable support from Te Whare Tāwharau.

[48]  It was clear from the Sunday programme that Olivia and Frances had not made sexual assault reports to the University (so had no personal experience of the University’s handling of such matters).

[49]  We find that TVNZ discharged its obligation under the standard to adequately inform and provide the University opportunity to comment on the issues raised in the Sunday programme.

Edited excerpts fairly represent the tenor of overall events

[50]  The University submitted that emails about Michaela’s complaint (which were used in the programme to represent a view that the University prioritised its reputation over the welfare of students) were taken out of context in the programme. It submitted that the comments made by the University in emails about reputational risk are ‘clearly connected with the Blind Date column and not the response to Michaela’s individual circumstances.’ TVNZ argued that Sunday quoted from the emails ‘in a balanced way’ and that ‘it is unnecessary to report the entirety of all the emails…the context of these emails is further made clear in the voice over.’ TVNZ also submitted that the email ‘does not clearly link the magazine article and the risk to reputation, as suggested.’

[51]  When read in full, we found the emails linked the issues of the University’s concern about the Blind Date column and how Michaela’s complaint had been dealt with, particularly in the email of 1 August 2016. The way that these emails were presented in the programme fairly represented their contents. It is clear in the broadcast that the staff exchanging emails knew that Michaela was receiving support. The way the emails are introduced indicates the University was not solely focussed on reputational risk, with the reporter saying ‘[the emails] say she’s getting support on campus, but also reveal concerns about reputational risk and image.’

[52]  Michaela’s comments that the emails were ‘damage control’ represented her opinion, which may have been derived from the way the 1 August 2016 email linked the issues and implications of the Blind Date column with discussion of support being provided to Michaela and what happened to her.

[53]   The discussion of the emails was also concluded with comments from the University about Michaela’s case generally:

Otago University…said Michaela was taken seriously and treated sympathetically, that she didn’t seek or expect to have the university separately consider an allegation of sexual assault.

[54]  Accordingly, we do not consider the University’s response to Michaela’s complaint to have been materially misrepresented through the use of the specified email excerpts.

[55]  With respect to Olivia’s email, we do not consider that the way the email was represented was material to the views which Olivia presented in the programme. Her complaint was that she felt she was not taken seriously, and the email was provided as an example of her contact with the University.

[56]  Additionally, the broadcast included comment from Knox College regarding its ‘satisfactory’ handling of Olivia’s complaint and from the University indicating that ‘it didn’t believe that Olivia was asking to review what Knox had done, rather raising broader issues of sexual misconduct’. Accordingly, again, we do not consider the quoting of particular excerpts has resulted in any material misrepresentation.

[57]  Therefore, for the above reasons, we find no breach of the fairness standard by the Sunday programme.

Balance

The complaint
[58]  The University submitted that the programme gave the following impressions without a balancing view from the University’s perspective:

  • The programme implied that the University’s response to sexual assault allegations is generally inadequate and was inadequate in the cases dealt with in the programme but did not reflect the University’s actual approach to dealing with such allegations.
  • The programme gave the impression that two of the women interviewed did not come forward with complaints because of the inadequacy of the University’s response to such complaints, and that those decisions were understandable and justified.
  • Michaela’s version of her story was unbalanced as the segment implies that ‘the University’s dominant response was the protection of its reputation’ through how the emails between University staff are presented and the University’s perspective on the letters was not presented.
  • Insufficient detail was provided of the support extended to Michaela by the University including the investigations carried out by the University on her behalf and ‘one comment taken out of context’ from the investigator was used to ‘convey that the investigator did a poor job’.
  • Olivia’s criticism of the University and Knox College was not balanced by the following information:
    • the circumstances of Olivia’s departure from Knox
    • Olivia’s attempts to return to Knox
    • that Knox had reviewed the handling of the incident
    • that an allegation of rape ‘was not something that Olivia invited or allowed the police, University or Knox to investigate’.
  • The programme allowed Frances to ‘advance her view of the University’s complaint processes’ and ‘the inference to be drawn was that Frances considered the University complaints processes to be inadequate and that this confirmed a view to which Sunday itself had come as a result of an “in-depth” investigation.’
  • PhD student Lily Kay Ross’s comment ‘well look we have these updated policies so we can say that we’re doing something about the problem. It sort of becomes, it’s like the end in itself…’ was not ‘challenged or balanced’, and made ‘the clear inference’ that University policies ‘are window-dressing’.

[59]  On balance, TVNZ commented:

  • ‘There is nothing to support the on-going contention here (and in other areas of the complaint) that the Sunday story implied the University’s actions were influenced by concern about its reputation.’
  • The programme presented significant viewpoints and ‘the University of Otago was given opportunity to comment on the issues raised…’
  • ‘The story clearly identified the steps taken in handling [Michaela’s] case, including the University interviewing both her and [those] accused of harassment, we reported the University helping organise study spaces and extensions, and having up to ten meetings with Michaela.’
  • ‘The programme has always been about the experiences of three young women and why they have a lack of confidence in the existing culture and system.’
  • ‘The Sunday story was not about offering up alternative ways the situations could have been handled…at the end of the day it was a current affairs story in which we factually reported the experiences of three women, presented a balanced coverage of the cases in terms of their opinions and the University’s response to that.’

Our analysis
[60]  A number of criteria must be satisfied in order for the balance standard to apply. The standard applies only to ‘news, current affairs and factual programmes’, which Sunday is, that discuss a controversial issue of public importance.14 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’.15 A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.16

[61]  We found that the balance standard applies as the programme discussed a controversial issue of public importance to New Zealanders (ie it addressed three women’s experiences of alleged sexual assault at the University and how the University responded, with reference to a broader issue of sexual assault on university campuses).

[62]  The question is therefore whether TVNZ made reasonable efforts to present significant points of view within the programme or in the period of current interest. We found that, overall, the Sunday programme was balanced. Sunday viewers are familiar with the programme’s style of storytelling which is commonly through the views and experiences of individuals, often in the context of the actions of large organisations. The programme was an insight into sexual harassment/assault as experienced by students associated with the University. It was presented as their story reflecting their perceptions and it included responses from the University.

[63]  We found the following factors relevant in our consideration of the balance standard: 16

  • Michaela’s comments regarding reputation and ‘damage control’ were her own opinions. The broadcast also reports on the support provided to Michaela, with the reporter saying, ‘the emails note Michaela was being supported by student health, both medically and with ongoing counselling’. The item describes arrangements made for a study area and extensions given and the item refers to the University’s statement which includes reference to Michaela being treated sympathetically.
  • Michaela’s negative comment about the investigator’s remark was contextualised by the University’s response: ‘The University says he was only referring to the flatmates who allegedly harassed her, not the student who allegedly assaulted her.’
  • The reference to Olivia leaving Knox was only one aspect of her overall story in which she was expressing dissatisfaction with the University and Knox’s response to allegations of sexual assault, and including the point that there were other reasons relating to her departure would not have changed the essential nature of her message.
  • The broadcast made it clear that Olivia chose not to report the rape (so had never invited the University to investigate it). The reporter says, ‘she felt her concerns weren’t taken seriously so she didn’t tell them about the rape.’
  • Frances was clearly providing her perspective on why she did not want to report her complaint, and viewers would have understood it to be her perspective. She was reflecting a sense she had, as a student at the University, of how effective (or ineffective) reporting would be.
  • Frances’ interview highlighted services that do exist around the University.
  • Frances was quoted as saying she had not ‘heard about every single case’ the University had had (so did not purport to have an exhaustive understanding of the University’s complaints handling processes). In addition, a voice over during the interview highlighted information received from the University (that ‘[i]n the last two years the University has investigated 27 sexual misconduct complaints, half of which lead to disciplinary action’) suggesting to viewers that the University does take action where appropriate.
  • Lily Kay Ross’ comments regarding a policy sometimes being ‘the end in itself’ were her opinion and not directed at the University and we do not accept the Sunday programme to have inferred they were.

[64]  Although the programme presented the women’s stories from their points of view, the University’s perspective was provided.18

[65]  Finally, we note that the concluding statements from Miriama Kamo, quoted above in paragraph [33], provide balance to any perceived critique of the University’s policies. This left viewers with the message that the University has no tolerance for sexual misconduct and (in the time since Michaela and Olivia were at university) has devoted significant time and resources to responding to the problem of sexual assault on campus.

[66]  Sunday viewers share an interest in current affairs and can be expected to be aware of the complexities associated with sexual complaints. The programme provided an insight into the experiences of three young women, the outcomes they sought, and how the University responded and is responding. The programme itself highlighted that the issues were not unique to the University. Viewers would recognise that this is a difficult issue for our society and for universities. Throughout the programme viewers heard the University’s perspective on the complaints, on the actions it took and on its approach to sexual harassment.

[67]  Therefore, we do not uphold the complaint in relation to the Sunday programme under the balance standard.

Accuracy

The complaint
[68]  The University submitted that the following points were inaccurate:

(a)   ‘The implication that, within three days of learning of the Michaela situation, the University had turned entirely to addressing reputational issues’

(b)  ‘That the University prioritised reputation over the appropriate handling of sexual misconduct complaints’

(c)   ‘That emails seen by Michaela represented damage control in relation to her complaint’

(d)  ‘The reasonable interpretation of Olivia’s email to the Vice-Chancellor’

(e)   ‘The release of the Sexual Misconduct Policy shortly before the Sunday programme is misleadingly presented as if policies and practices it contains were not employed prior to its formalisation’

(f)     ‘The circumstances of Olivia’s departure from Knox’

(g)   ‘The timing of Frances’ contact with TVNZ’

(h)  ‘Lily Kay Ross’s comment that mandatory reporting is not best practice – inaccurately implying a further issue with the University’s policy which does not provide for mandatory reporting.’

[69]  TVNZ responded to each of the points raised and argued that they were not in breach of the accuracy standard. It also submitted:

  • In the Sunday programme, ‘the emails make up a small part of a much longer story about an issue.’
  • ‘The complaint is that the narrative implied the University’s dominant response was to protect its reputation. This is not reflected in the story that was put to air.’
  • ‘Frances’ comments about the process were honestly held opinion. We were telling her story.’
  • ‘It is disappointing that the University feels the women did not have legitimate grounds to feel angry, frustrated and upset over handling of their matters.’

Our analysis
[70]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.19 Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts’.20 Programmes may be misleading by omission.21 Programmes may also be misleading as a whole.22

[71]  The requirement for accuracy does not, however, apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.23

[72]  In our view, the key inaccuracies identified in connection with the Sunday programme are those identified in subparagraphs (a), (b), (c) and (d) in paragraph [68]. We found that the other alleged inaccuracies amounted to comment or analysis (subparagraph (h))24 or are not material inaccuracies (subparagraphs (e), (f) and (g)).25

The University prioritised reputation over the handling of sexual misconduct complaints

[73]  Items (a), (b) and (c) are best dealt with together. The University has alleged that Michaela’s story gave the misleading impression that ‘within three days of learning of the Michaela situation, the University had turned entirely to addressing reputational issues’, ‘that the University prioritised reputation over the appropriate handling of sexual misconduct complaints’ and that the emails cited in the programme ‘represented damage control in relation to her complaint’.

[74]  The broadcast included emails between former and senior staff at the University exchanged days after Michaela reported her story. The emails were used in the programme to highlight the University’s concern with reputational risk but, as noted in our analysis under the fairness and balance standards, the segment also made it clear that support was provided to Michaela.

[75]  Aspects of the emails were read out on-air highlighting the University’s concerns with reputational risk. Michaela was then asked what impression the emails gave her, and she provided her perspective.

[76]  While this segment may have left viewers with the impression that the University was concerned with the reputational damage associated with sexual misconduct allegations, it does not automatically lead to the conclusion that the University had turned entirely to dealing with reputational issues or that it prioritised reputation over the appropriate handling of complaints. As discussed above, we consider the emails link the issues of concern over the Blind Date column, and the treatment of the relevant sexual assault allegations. The University was concerned about reputation – and it is not inaccurate to depict this. The Sunday programme did not go so far as to state or imply that the University prioritised its reputation over Michaela’s welfare. Depicting Michaela’s disappointment with, and personal interpretation of, the University’s interest in reputation does not create a misleading impression. This was Michaela’s opinion of the emails and the accuracy standard does not apply to comments, opinion or analysis.

[77]  With respect to the University’s point that the emails were inaccurately depicted as ‘damage control’ in relation to Michaela’s complaint (when they were directed at concerns regarding the Critic’s Blind Date column), as outlined in our consideration of the fairness standard, the way the correspondence linked the two issues, and how this was presented in the programme, did not result in an inaccuracy.

[78]  Therefore, we do not find these three points to be inaccurate.

The reasonable interpretation of Olivia’s email to the Vice-Chancellor

[79]  The University has submitted that Olivia’s email was portrayed in the broadcast in a way that suggested that Olivia expected the Vice-Chancellor to ‘re-investigate matters’. ‘However, consideration of the full email very clearly supports the University’s interpretation of Olivia’s intentions in writing, and her acceptance at the time of the appropriateness of the University’s response to what she said.’

[80]  The University’s understanding of Olivia’s email was explicitly stated, when the reporter said the University ‘didn’t believe that Olivia was asking it to review what Knox had done, rather raising broader issues of sexual misconduct.’ Further, the email was not material to the assertion in the programme that Olivia was unhappy with the University’s treatment of ‘broader issues of sexual misconduct’, so the concern about a reasonable interpretation of the email is not material to viewers’ understanding of the story.

[81]  Therefore, we do not find this aspect of the programme to be inaccurate, and we do not uphold the accuracy standard in relation to the Sunday programme.

For the above reasons the Authority does not uphold the complaint regarding the broadcast by Television New Zealand Ltd of Sunday on 9 June 2019.

Breakfast

The broadcast
[82]  On 10 June 2019, the morning after the Sunday programme was broadcast, the item was reported on throughout Breakfast:

  • An interview between presenter John Campbell and Sunday reporter Tania Page, included comments on the University’s refusal to be interviewed:

Oh we tried, John, we tried really hard…really hard. Multiple conference calls with them, toing and froing on emails, giving outlines on what we wanted to talk about. They wanted the nuts and bolts of specific questions, and we weren’t prepared to give those to them.

  • A further interview, between Mr Campbell and the two PhD students, concluded with presenter Daniel Faitaua previewing upcoming news with the statement ‘Otago University is accused of covering up allegations of rape and sexual assault to avoid reputational damage.’
  • Clips from the earlier interviews played, with the introduction:

‘Otago University says it has zero tolerance for sexual misconduct by students or staff in response to a TVNZ Sunday investigation into allegations of sexual violence at the University, but students who spoke with journalist Tania Page say their experiences of reporting sexual harm tell a different story.’

  • This section concluded with the statement ‘and just a note – TVNZ Sunday and Breakfast have repeatedly asked Otago University for an interview but they have consistently declined our request.’
  • The clip from the interview with PhD students was repeated, with the introduction ‘Otago University is accused of mishandling allegations of sexual assault at the University to avoid reputational damage’. Mr Faitaua commented again that the University had declined requests for an interview, followed by a clip from the earlier interview with Tania Page (as above).
  • An apology was made for an earlier segment:

We have a clarification to make…we used the phrase “covering up allegations” and we shouldn’t have. For that we apologise. There are still concerns around how Otago University has handled reports of sexual violence. And our invitation, as always, for an interview, remains open.

  • A final news item repeated a clip from the interview with Tania Page.

Accuracy

The complaint
[83]  The University submitted that ‘Breakfast’s allegation that the University was involved in a cover up’ was inaccurate. In its decision, TVNZ upheld this aspect of the University’s complaint and submitted that sufficient action was taken to remedy the breach as ‘the error was acknowledged and corrected in the Breakfast programme at the earliest opportunity.’ The University submitted that this was not a ‘sufficient response’, and that TVNZ ‘immediately “doubles down” by confirming there are still concerns around “how Otago University has handled reports of sexual violence.”’ It casts the inaccuracy as ‘a poor choice of words’ while still expressing the allegation in an alternative way.

Our analysis

[84]  We begin our analysis with consideration of the accuracy standard, and the concern that the action taken by TVNZ in response to the ‘cover up’ statement was insufficient to remedy the breach.

[85]  Firstly, we agree with TVNZ that the ‘cover up’ statement was inaccurate and materially misleading to viewers. ‘Cover up’ is a serious allegation as it implies a degree of intent. We also agree that correcting the error at the earliest opportunity was an appropriate step to take and accordingly do not uphold the complaint with respect to the action taken by TVNZ in response to this breach.

[86]  However, we were concerned that the comments immediately following the apology contributed to the overall tenor of the broadcast as an attack on the University. While we did not identify any material inaccuracies in the broadcast, we agreed that TVNZ continued to assert that the University was mishandling sexual assault complaints, which we have addressed under the fairness and balance standards.

Fairness

The complaint
[87]  The University was particularly concerned that it was ‘adversely portrayed for not being willing to appear on camera’ and that ‘the opportunities offered to do that were not fair and reasonable.’

Our analysis
[88]   We found that the University was not treated fairly by TVNZ throughout Breakfast with the focus of the story changing from the public-interest issues presented in the Sunday programme. The focus throughout Breakfast was on the University’s refusal to appear on Sunday and the allegation that it prioritised reputation in the handling of sexual assault complaints. This was a change from Sunday, which was looking at the issues associated with sexual assault on campus more broadly.

[89]  In the interview with Mr Campbell, Ms Page commented on the University’s lack of on-camera interview:

JC:       …the University of Otago cited privacy as the reason - as one of the reasons they couldn’t talk to you, well two of the three women who appeared in your story appeared as themselves.

TP:      Yes and they did provide waivers as well and the University said the waiver isn’t strong enough, isn’t explicit enough and we asked twice what kind of waiver and what would the waiver need to say and we didn’t get a response and in the end they said any kind of waiver wouldn’t have been good enough because the disciplinary process or the investigation process is confidential…

[90]  The University provided us a copy of the privacy waivers obtained from TVNZ for the students. We agreed that these were manifestly inadequate. We recognise that it may have been frustrating for the Sunday team to be unable to provide anything that could be adequate to address privacy concerns, but we found the way this was portrayed in the broadcast did not recognise the legitimate privacy considerations and duties of care the University must consider (both in respect of complainants and alleged perpetrators).

[91]  Breakfast also portrayed the University as demanding specific questions as a condition of appearing on the programme. From the correspondence supplied to us, this was not the case. The University did request specific information about what would be asked in the interview, but such issues were not the only reason for its decision not to appear on camera.

[92]  The University was entitled to refuse to appear on camera. However, the portrayal of this, and the inference that the University was hiding something was unfair.

[93]  Sunday was telling the women’s stories, with one asserting that the University was overly concerned with reputation. We did not find that the Sunday programme as a whole made this allegation, and for that reason, we did not find a breach of the standard with respect to that programme. However, this allegation was advanced throughout Breakfast, particularly given Breakfast’s direct statement that the University was mishandling allegations of sexual assault to avoid reputational damage. We do not consider that the University was adequately informed or given a fair and reasonable opportunity to comment, and therefore it was not able to respond.

[94]  While we did not agree that Sunday portrayed the University adversely for not appearing on camera, we found that when this became the focus of the Breakfast item the result was that the University’s position was not fairly represented.

[95]  Therefore, we uphold the complaint under the fairness standard in relation to Breakfast.

Balance

The complaint
[96]  The University submitted that Breakfast failed to present alternative perspectives on allegations that ‘the University mishandled the cases that Sunday covered and that it did so to avoid reputational damage’ and on ‘the view that [u]niversities’ handling of sexual assault involves a conflict of interest’.

Our analysis

[97]  We also found that Breakfast lacked balance for the following reasons:

  • The angle of the story changed on the Breakfast item. It focussed on the University’s concerns about reputation and its refusal to provide an on-camera interview for the Sunday item.
  • Tania Page’s summary of the Sunday item had the effect of drawing inferences from the programme and presented them as firm conclusions to be drawn. Rather than being presented through the interviewees’ own words and balanced with comments from the University, as they were in the Sunday item, Ms Page, in the role of journalist, turned the opinions of three students about their experiences with the University into fact with no balancing comments.
  • In these circumstances, it would have been appropriate to present the University’s perspective regarding the ‘reputation’ issue and its reasons for not providing an interview.
  • Even when the comment about the University ‘covering up’ sexual assault claims was withdrawn, emphasis was placed on concerns about how the University ‘handled’ the complaints, reiterating the allegations against the University (without balancing comment).
  • Importantly in our view, Ms Page’s summary of the story undermined comments by the University about progress made in changing policies relating to sexual assault complaints:

They felt that some of their concerns weren’t taken seriously, from the University’s side obviously they feel like they’ve made a lot of progress in the last few years, they wanted to tell that kind of good news side of it but for these women who we spoke to, they didn’t get the outcomes they wanted, they didn’t feel like, in one instance, that there was enough transparency around the process…

[98]  The Breakfast programme is a news and current affairs programme which has an informal presentation style. It seeks to highlight issues for discussion, but does not undertake in-depth analysis. On this occasion, we consider that when it chose to select two narrow issues from a broader Sunday item, it had an obligation to ensure that the views were presented in a balanced and fair way. The inclusion of statements from the University that were read on air, for example, ‘Otago University says it has zero tolerance for sexual misconduct by students or staff’, were not sufficient to balance the specific allegations made on Breakfast.

[99]  In response to the provisional decision, TVNZ argued that our finding on balance with regard to the other broadcasts indicates that the Breakfast item was balanced ‘within the period of current interest’ by the 1 News item in particular and ‘to a lesser extent’ by the Sunday programme.

[100]  We disagree. While balance can be achieved within the period of current interest, the extent to which surrounding broadcasts have a balancing effect on a particular broadcast is context-dependent, and in this instance, the other broadcasts were not sufficient to properly overcome the balance issues throughout Breakfast.

[101]  Therefore, we uphold the complaint under the balance standard in relation to Breakfast.

1 News

The broadcast
[102]  A segment on 1 News on the evening of 10 June 2019 covered the issues from the Sunday programme again. It included a short excerpt from the Sunday programme, comment from NZUSA representative Caitlin Barlow-Groome, a clip of Ms Ross from the Breakfast interview and comment from Melanie Beres on behalf of Te Whare Tāwharau.

The complaint
[103]  The University submitted that this item also breached the fairness, balance and accuracy standards. Particular issues identified in its complaint with the 1 News broadcast were:

  • ‘The University was adversely portrayed for not being willing to appear on camera.’
  • The University was not given the opportunity to respond to:
    • Caitlin Barlow-Groome’s comment that ‘it was sweeping matters of sexual misconduct under the rug and was failing to be honest about what was going on.’
    • Lily Kay Ross’s comment ‘that the University has an incentive to try to avoid having to deal with reports’ and the implication that ‘it does in fact avoid them.’
    • The reference to the University not contacting Frances has the ‘unavoidable implication’ that the University should have contacted her and that ‘its failure to do so was further evidence of a lack of care for student wellbeing’.

[104]  TVNZ did not uphold the complaint in relation to 1 News and commented:

Otago University’s position on the issue is also reported in the 1 News item through the comments included in commentary from the Reporter and through comments made by Melanie Beres from the Otago University Support Clinic.

Fairness

Our analysis
[105]  In our view, the key issues presented under this standard relate to:

  • the portrayal of Lily Kay Ross’s statement about conflicts of interest
  • the suggestion that the University should have contacted Frances
  • Caitlin Barlow-Groome’s comments about sweeping sexual misconduct matters under the rug and not being ‘honest’.

Each is addressed below.

[106]  A comment from Lily Kay Ross regarding her opinion on an inherent conflict of interest that exists in universities generally when it comes to responding to and encouraging reports of sexual assault was included in the segment. It was part of her argument on Breakfast in support of an independent oversight body for sexual violence issues on university campuses:

It’s a situation where they have an incentive to try to avoid having to deal with reports. They’re not really in a position to be able to craft a policy and procedural document that’s going to really invite students to come forward when these issues occur.

[107]  The University submitted that it was not advised or invited to comment on this particular allegation. TVNZ argued that the University was given ‘plenty of time to prepare and respond to any allegations’ prior to the 1 News broadcast.

[108]  The editing of the clip and the way the comment was presented to the news audience gave the impression that the comment was directed specifically at the University of Otago, rather than part of a broader argument about the need for independent oversight. Guidelines to the fairness standard require that edited clips should fairly reflect the tenor of events.26 This did not occur in this case, and taking this specific comment out of context, was unfair. Ms Ross’s comments should have been framed more clearly to show they were not directed at the University alone.

[109]  The University also submitted that it was unfair to imply that the University ‘should have contacted Frances’ after the Sunday programme had aired and ‘that its failure to do so was further evidence of a lack of care for student wellbeing’. TVNZ had made it clear to the University that Frances did not want her identity revealed to the University before the Sunday broadcast.

[110]  It is reasonable, in our view, for the University to assume from TVNZ’s communications, and Frances’ clear decision not to report her complaint to the University, that she would not welcome contact from the University. For that reason, we found this aspect of the broadcast unfair to the University.27 This concluding remark in the broadcast did not fairly reflect the tenor of events.

[111]  Finally, we find Caitlin Barlow-Groome’s comments about sweeping matters of sexual misconduct under the rug and failing to be ‘honest’ were an expression of her opinion and a single aspect of the overall broadcast. Viewers would have understood this comment to be her view, and the University did not need to be given the opportunity to respond.28

[112]  For the above reasons we uphold the complaint under the fairness standard in regard to 1 News.

Balance

Our analysis
[113]  The balance standard includes assessment of the programme’s introduction and the way in which the programme was presented.29 Similarly to Breakfast, the 1 News item was framed around the University’s denial of ‘claims it didn’t do enough to help several students who complained of sexual assault while studying in Dunedin.’ However, the item includes comments from the University such as ‘they did reiterate they take any allegations of sexual assault seriously.’ The comment from Melanie Beres30 provided strong support for the point that the University is devoting time and resources to the issue:

We have, I think, three or four different teams of people working a wide range, across issues related to sexual violence, including handling investigations, including providing support.

[114]  The 1 News item was a shorter news item which reported on the Sunday programme in a straight-forward way. While we do not consider that the fairness standard was met, the allegations against the University were balanced by the comments which were included.

[115]  Therefore, we do not uphold this aspect of the complaint.

Accuracy

Our analysis
[116]  No specific inaccuracies were identified in the 1 News broadcast by the University in its complaint, although the University submitted broadly that in the three broadcasts TVNZ ‘has undoubtedly failed to accurately represent the University’s handling of situations of sexual misconduct’.

[117]  We found that as a whole, the 1 News item was not materially misleading.

[118]  Therefore, we do not uphold the complaint about 1 News under the accuracy standard.

 

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Breakfast on 10 June 2019 breached Standards 8 and 11 of the Free-to-Air Television Code of Broadcasting Practice and the broadcast of 1 News on 10 June 2019 breached Standard 11 of the Free-to-Air Television Code of Broadcasting Practice.

[119]  Having upheld aspects of the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the University and the broadcaster.

[120]  TVNZ questioned some of the Authority’s findings and made submissions on some drafting elements of the provisional decision. Some drafting comments have been addressed (this did not affect our findings).

Submissions on orders

[121]  The University sought broadcast statements on Breakfast and 1 News, and a contribution to its legal costs, noting:

  • There is a ‘very high level of public interest in the issues of the handling of sexual assault allegations.’
  • ‘Significant harm’ was likely to have been caused by the broadcasts including the risk of discouraging complainants from coming forward and harm to the University’s reputation, ‘specifically the trust and confidence that its students and community may have in it.’
  • The broadcasts have ‘undoubtedly’ undermined ‘the University’s very significant investment in recent years in developing policies and resourcing procedures to support those affected by sexual assault.’
  • ‘Misrepresentation of the University of Otago’s standing and reputation in that regard can be expected to significantly impact on enrolment decisions.’
  • TVNZ has made ‘no acknowledgement of concern in its programming and made no effort at mitigation’ and ‘even the on-air withdrawal of the cover-up allegation…was undermined by the immediate repetition that there were still concerns.’
  • Publication of the decision alone is insufficient to remedy the breaches as ‘detail[s] of the findings cannot be expected to reach the [TVNZ] audiences’ and therefore mitigate the harm.
  • A contribution to the University’s legal costs is appropriate due to TVNZ’s response to the complaint (ie the failure to uphold it), the level of public interest in and significance of the issues, the importance of the issues to the University, the number and complexity of issues raised and the requirement for detailed analysis of the programming.
  • An amount of $12,500 would be appropriate and the University intends to apply the full amount of any costs award to additional work supporting those affected by sexual assault.

[122]  TVNZ submitted that the publication of the decision would be ‘sufficient penalty in the circumstances’ and no further orders are required.

Authority’s decision on orders
[123]  When the Authority upholds a complaint, we may make orders, including directing the broadcaster to broadcast and/or publish a statement, and/or make a contribution to legal costs reasonably incurred by the complainant. Alternatively, we may determine that the publication of our decision is sufficient to sanction the conduct of the broadcaster and to provide guidance to the broadcaster which is the subject of the complaint, and to other broadcasters more generally.

[124]  In determining whether orders are warranted and the type of order to impose, we consider the following factors:31

  • the seriousness of the breach and the number of upheld aspects of the complaint
  • the degree of harm caused to any individual, or the audience generally
  • the objectives of the upheld standards
  • the attitude and actions of the broadcaster in relation to the complaint, such as whether the broadcaster upheld the complaint in full or in part
  • whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
  • past decisions and/or orders in similar cases.

[125]  In this case, the factors we considered most relevant to our assessment of whether orders are warranted include:32

Seriousness of the breach

  • Across the three challenged broadcasts, the Authority only found three standards breaches out of the nine alleged breaches and these related to the short follow up news items. The complaint against the Sunday programme, which was a larger proportion of the overall complaint with multiple allegations made in respect of the three standards alleged to have been breached, was not upheld.
  • The breaches are at the medium to low end of seriousness, with limited potential for harm given that the University is a well-resourced institution and capable of dealing with media enquiries and issues.

Extent of harm

  • The Breakfast and 1 News broadcasts caused potential harm to the University’s reputation by portraying the University adversely for its decision to not appear on camera, suggesting it mishandled allegations of sexual assault to avoid reputational damage, suggesting it had a conflict of interest in handling sexual assault allegations and suggesting it should have contacted Frances after the Sunday programme. This also had the potential to mislead viewers.
  • There was high public interest and value in the programmes’ examination of issues associated with the handling of sexual assault allegations, but these subsequent items, which changed the focus of the original item, did not have the same high value.

Attitude and actions of the broadcaster

  • TVNZ is an experienced broadcaster.
  • TVNZ only upheld one aspect of the University’s complaint with respect to one of the programmes, but did not uphold the other complaints.
  • In the past 12 months, only two decisions have upheld complaints against TVNZ 33 and the last decisions upheld against TVNZ prior to that were in August 2018.34

[126]  Taking the above factors, previous decisions and the parties’ submissions into account, we do not consider that orders are warranted. The publication of this decision will publicly notify the breach of the fairness and balance standards, and will assist to remedy any harm. It will censure the broadcaster’s conduct in this case. The decision will also provide guidance to this and other broadcasters about the application of these standards which both ensures the protection of the public from future breaches and assists this broadcaster and other broadcasters generally to understand the obligations under the standards concerned.

[127]  Therefore, we make no orders under sections 13 or 16 of the Broadcasting Act 1989.

 

Signed for and on behalf of the Authority

 

  

Judge Bill Hastings

Chair

26 May 2020

 

 


Appendix

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

1  The University of Otago’s complaint to TVNZ – 5 July 2019

2  TVNZ’s response – 30 August 2019

3  The University’s referral to the BSA – 27 September 2019

4  TVNZ’s comments on the referral – 14 November 2019

5  The University’s further comments – 2 December 2019

6  The University’s submissions on the provisional decision – 17 April 2020

7  TVNZ’s submissions on the provisional decision – 17 April 2020


1 Te Whare Tāwharau is a sexual violence support & prevention centre at the University, called ‘Otago Support Clinic’ in the 1 News broadcast.
2 Leigh Pearson was an Authority member from 2010-2017 and was appointed after consultation with broadcasters. She was co-opted to assist with this complaint with the consent of the parties.
3 The Free-to-Air Television Code of Broadcasting Practice was refreshed with effect from 1 May 2020. This complaint has been determined under the April 2016 version of the Free-to-Air Television Code of Broadcasting Practice as the relevant broadcast pre-dated the 1 May 2020 version.
4 A third of NZ university students are sexually assaulted, a study suggests (Stuff, 6 June 2019); A look back on NZ’s 2018 MeToo movement (RNZ, 17 December 2018); The #MeToo Moment (series, New York Times, 30 November 2017-19 August 2019); Working in the #MeToo era (NZ Herald, 12 November 2019)
5 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
6 Guideline 11d
7 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
8 ‘Want to know how Otago Uni handles Rape?’ – the flyer invited students to watch the Sunday programme and argued for systemic change.
9 Michaela’s mother
10 Guideline 11a
11 Guideline 11b
12 Guideline 11d
13 Guideline 11f
14 Guideline 8a
15 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
16 As above
17 Guideline 8c
18 Contrast to, for example, Horowhenua District Council and MediaWorks Radio Ltd, Decision No. 2018-105 at [31]
19 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
20 Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
21 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
22 Phillips and Racing Transition Agency, Decision No. 2019-044 at [28]
23 Guideline 9a
24 As above
25 Guideline 9b
26 Guideline 11f
27 Guideline 11b
28 As above
29 Guideline 8c
30 See para [3]
31 Broadcasting Standards in New Zealand Codebook, page 58
32 Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 58
33 Burton and Television New Zealand Ltd, Decision No. 2019-026 (Children’s Interests – Standard 3); ANZ and Television New Zealand Ltd, Decision No. 2019-070 (Accuracy – Standard 9)
34 West and Television New Zealand Ltd, Decision No. 2018-043 (Accuracy – Standard 9); RK and Television New Zealand Ltd, Decision No. 2018-025 (Accuracy – Standard 9, Fairness – Standard 11, Balance – Standard 8)