ANNY MA AND SAMUEL BUCKMAN AGAINST NEW ZEALAND HERALD

Case Number: 2810 and 2811

Council Meeting: September 2019

Verdict: NOT UPHELD WITH DISSENT 10:1

Ruling Categories: THE NEW ZEALAND HERALD

Background

Anny Ma and Samuel Buckman have complained about a story by Newstalk ZB’s Political Editor Barry Soper headlined ‘I’m in a very dark place’: Man stood down from Parliament after Speaker Trevor Mallard’s rape claims’. The article was published by New Zealand Herald on May 27, 2019.

The article was based on an interview with an unnamed parliamentary staff member who had been stood down after the Francis Report, which reported 14 people had claimed to have been victims of a sexual assault while working in parliament.

Debbie Francis said three alleged incidents disclosed in interviews were in her view very serious. She wouldn’t be drawn on details but the next day Speaker Trevor Mallard said "We're talking about serious sexual assault. Well that, for me, that's rape”. The man was stood down later that day as politicians demanded action against the alleged criminal.

While Ms Francis never says how many alleged offenders and victims were involved in the three “extremely serious” incidents, saying she wants “to protect the privacy of respondents”, Mr Mallard told RNZ the next day he understood the incidents involved just one man and the accused interviewed in this article discusses three incidents.We cannot be certain all parties are talking about the same incidents, but that is what Mr Mallard and the article assert.

This article was published five days later and was the first time the alleged offender had spoken in public. He gives his version of three incidents; he claims he has been investigated and cleared of the first and claims the other two fall well short of sexual violence or rape.

Complaints

Both Ms Ma and Mr Buckman have complained under Principle 1, Accuracy, Fairness and Balance. (Ms Ma also references Principle 4, but the body of her complaint focuses on Principle 1 issues.). They say the framing or angle of the piece is unbalanced and inaccurate, while also being unfair to the alleged victims.

They complain the alleged offender is portrayed as the victim, something which contributes to New Zealand’s rape culture and the silencing of women who have been victims of sexual assault. The benefit of doubt and a platform is extended to the accused but the victim is not referred to or given a voice in the story.

Ms Ma says the article seeks to humanise the accused, with the effect of the accused being prioritised over the alleged victim. She sees it as unfair that the man is described as being “bullied out of parliament” when “he is receiving the consequences of his actions”.

She is critical the paper fails to tell readers who have suffered sexual assault where they can go for help and that Hugh Rennie QC is quoted suggesting the rape allegations are potentially defamatory. That is “biased reporting at its very worst.”

Ms Ma also suggests women’s organisations working with victims could have been quoted and the article amounts to “violent propaganda to protect the accused”.

Mr Buckman points out that the accused is allowed to present his version of the events leading to the complaints, while the claims of the woman are not reported. “It may be that they could not be presented: in that case, the piece should not have been run.”

Without that balance, reporting the disputed claims of fact make this a breach of ethics.

Editor’s Response

In an initial reply to Ms Ma, NZME’s GM Communications Cliff Joiner says the focus of the story is Mr Mallard’s labelling of the accused as a “rapist” when no such accusation had been made by the alleged victims. Further, a Parliamentary Services investigation into the first claim, seen by Mr Soper, “cleared the man of any wrong doing”.

The claims made by the Speaker – that this man was a rapist – are serious and make it a story the media is duty-bound to cover from all sides, including the accused.

Legal Counsel for NZME Ashleigh Harding, in the paper’s response to the Council, says the three allegations made in the Francis Report – characterised by Mr Mallard as rape – meant the comment and issue of what happened were clearly in the public interest. Given the complaints are under Principle 1, Ms Harding addresses the article’s accuracy, fairness and balance.

She defends the accuracy of the story, pointing out there is no challenge to the facts of Mr Mallard’s comments, the events that led to the staff being stood down and the statements from the original report, which was seen by Mr Soper. The accused’s version of events was clearly attributed to him and are an accurate report of his claims.

Reporting his perspective is valid and fair given the seriousness of the allegations made against him by the Speaker and in the report.

The allegations were widely covered by the Herald, including that Ms Francis had “uncovered a sexual predator” and “a multi-year pattern of predatory behavior”. That previous coverage of the allegations and review provide balance to the accused’s perspective, offered in this article, she says. As Principle 1 notes, balance can be achieved over time and articles.

The comments are a response to claims that have been reported in as much detail as possible, given the need to preserve the privacy of the alleged victims.

Mr Soper did attempt to “contact a complainant”, Ms Harding mentions in a follow-up email, but she does not say if the attempt was unsuccessful or if the complainant declined to comment.

Ms Harding says NZME is sympathetic to the complainants concerns regarding rape culture and the pair have the right to object, but the story is in the public interest and provided balance against the serious claims being made about the accused.

She stresses that the allegations made against him are just that – allegations. There has been no finding of fact that the accused raped or sexually abused anyone.

Discussion and Decision

The issues reported in this story are sensitive and the media’s coverage of sexual assault has quite properly been under intense scrutiny in recent years. Covering these issues – and covering them respectfully and thoroughly – is undoubtedly in the public interest.

Ms Ma raises a number of well-considered points about rape culture in New Zealand, but the Council must apply itself purely to this case and this article. It’s worth noting the complainants are concerned about the perpetuation of rape culture – defined as an environment in which sexual violence is normalised or trivialised – rather than wanting to enter into a debate whether or not a rape has occurred.

Having said that, the staffer who was stood down faced a specific accusation by parliament’s Speaker, one of the most powerful politicians in the country. That is, that he was a rapist. The accuracy of that statement is pertinent to any subsequent coverage, for at least two reasons. First, rape is considered a more serious crime than other sexual offences under statute, with sentences of up to 20 years compared to up to 14 for others. Second, the many stories reporting the reaction to Mr Mallard’s choice of words stressed the concern across parties and parliament that there was ‘a rapist on the premises’.

Stories reporting Mr Mallard’s comments included lines such as, “Speaker Trevor Mallard says he believes a man who has committed what he calls "rape" three times in the parliamentary workplace is still working at Parliament.”.

Given that information was in the public arena, it was in the public interest for journalists to seek to establish the accuracy of Mr Mallard’s claims and the risk to those working in and around parliament. As Mr Joiner says, media were “duty-bound” to investigate thoroughly given the seriousness of the alleged crime. Not reporting the issue was not an option.

Despite the Media Council complainants disputing the accuracy of the story, neither refute any of the facts reported.

So the nub of the complaints comes down to whether the story was fair and balanced. Was it fair to give the accused’s version of events, especially given an alleged victim was discussed in the story, but never got to put her side? As Buckman suggests, without the victim being given a voice, should the piece have been run at all?

The piece does give a voice to the accused and his version of events will have presented the staffer in a sympathetic light to some. However the complainants won’t be the only ones to read his claims with scepticism, especially in the light of the Francis report and the extensive coverage its findings received.

The alleged victim was given a voice in the report; we would not have known about the allegations against the staffer and he would not have been stood down, if she was not. While the anonymous nature of the investigation means her version of the specific allegations were not reported in detail, the seriousness of those claims and the ability of many in and around parliament to identify the accused once he was stood down, meant it was reasonable for NZME to offer balance and give the man a right of reply.

As NZME argue, he has not been found guilty in court or even charged by police; indeed according to the article the official investigation cleared him of the first of the three allegations discussed. While again we do not know from Ms Francis if this man and these three incidents in the article are the same ones referenced in her report, they seem to be the incidents referred to by Mr Mallard, given the man was stood down after the Speaker’s comments.Despite Ms Ma’s concerns, it would not have been accurate to report “that he is receiving the consequences of his actions”. When serious claims are made and the facts are disputed (outside of court proceedings), any individual – man or woman – has the right to defend themselves in public. As the Council’s preamble says, “There is no more important principle in a democracy than freedom of expression”.

The article is notable, however, for only detailing the man’s point of view. NZME argues this single story was the only balance against many others that carried Mallard’s words accusing the staffer of rape. While he was never named, the fact he was stood down meant his identity may have been well known in political and parliamentary circles.

Ms Harding says balance was achieved over time. The extensive coverage of the report and Mr Mallard’s words – including the links in the story – mean this is in most part true. The Council however sees no reason why the alleged victims – through quotes from the report or through interviews with them – could not have been given a voice in this story. Journalists would do well to ensure balance within individual stories where at all possible, rather than relying on ‘balance over time’. While other stories gave the victims’ voice, it could be asked whether those voices were loud enough, especially in this story.

NZME’s legal counsel informally advised the Media Council that Mr Soper “did attempt to contact a complainant”, but the Council does not know if contact was made and if the woman got the choice to speak. While acknowledging how hard it is for victims to speak publicly, the accusations were not before the court and so there was no reason the woman should not have been given – and taken – the opportunity to challenge the accused’s version of events. We do not know if Mr Soper or any other NZME journalist has since offered the other parties the right to speak more fully.

Despite that – given the serious claims made; the official, high profile and revealing way in which they were reported;the existence of a report that seems to cover one of the incidents that led to his being stood down; and the fact that they are neither proven nor before the courts – the accused had the right to put on the record his version of events. There was extensive coverage of the accusations made against him and he was entitled to a right of reply. The complaint under Principle 1 is not upheld by a majority 10:1.

Dissent by Jo Cribb

In the New Zealand Herald article entitled ‘I am in a very dark place’, Barry Soper, political editor Newstalk ZB, interviewed a man who had been stood down from his role in Parliamentary Services due to allegations of serious sexual assault. While Mr Soper also penned an opinion piece the following day in the New Zealand Herald where he declared that he had a long-standing relationship with the man and argued that the man had been much maligned, the article in question is a news report and as such must adhere to the journalistic standards of good reporting.

Principle 1 of the Media Council’s Statement of Principles states that publications should be bound at all times by accuracy, fairness and balance, and should not deliberately mislead or misinform readers by commission or omission. In articles of controversy or disagreement, a fair voice must be given to the opposition view.

The man interviewed is self-identified as the subject of serious sexual misconduct allegations over a period of time, allegations so serious that he has been stood down from his place of employment.When interviewed the man said he only high-fived his female colleague and gave one a hug and passed comments about how nice a female colleague’s hair was.

There is a large discrepancy between this version and the identifying of the incidents as serious sexual assault, a discrepancy that should have been questioned and reported on.By omission, therefore, the article is not fair to those who have made the sexual harassment complaints and the many who contributed to the review of behaviour in Parliamentary services. With a news article based on a single source, additional care should have been taken to ensure such fairness.

While this was an evolving story, this was the first time a perspective from a staff member had been reported.There has been no counter view reported from those who made the complaints, though the Herald noted victims had been approached. However, given the sensitivity of the subject and that the investigations are on-going, it is understandable that even if the complainants were offered an interview, that they may not wish to speak to Mr Soper or did not feel safe doing so.Balance in this story could however have been sought in many ways other than a direct interview with the persons who complained of harassment.There are, for example, many organisations with expertise who could have provided insight into the experiences of the complainants in terms of how these incidents will have impacted on their life.

Dr Cribb would have upheld the complaint on grounds of unfairness and imbalance.

Media Council members considering this complaint were Hon Raynor Asher, Rosemary Barraclough, Liz Brown, Craig Cooper, Jo Cribb, Ben France-Hudson, Hank Schouten, Marie Shroff, Christina Tay, Tim Watkin and Tracy Watkins.