BOB McCOSKRIE, PAUL SHAKES, FERN HICKSON AND MARLI DE KLERK AGAINST STUFF

Case Number: 3399

Council Meeting: 8 MAY 2023

Decision: Upheld

Publication: Stuff

Principle: Accuracy, Fairness and Balance
Privacy
Comment and Fact
Headlines and Captions
Corrections

Ruling Categories: Defamation/Damaging To Reputation
Social Media
Gender

Overview

  1. At 9 am on 15 November 2022, Stuff published an online article School counsellor accused of ‘bullying’ and transphobia. At 12.34 pm the same day, Stuff amended the article, including removing the word “bullying” from the headline. On 23 November, Stuff retracted the entire article.
  2. The Media Council received four complaints that the article variously breached Principles (1) Accuracy, Fairness and Balance, (2) Privacy, (4) Comment and Fact, (6) Headlines and Captions, and (12) Corrections.
  3. The complaints are upheld on Principle (1) based on a lack of fairness. The complaints are not upheld on the other principles.

The Article

  1. The article giving rise to the complaints covered a Facebook post (later removed) by Ms Marli de Klerk, a school counsellor at Bethlehem College, and the reactions to it.  The introduction to the article explained Ms de Klerk had ‘been labelled “transphobic” for her “harmful” and “bigoted” views on the Ministry of education curriculum, which she claimed was “deliberately teaching lies to little ones” about gender.’
  2. The article quoted Ms de Klerk’s views from her Facebook post in which she said ‘A significant amount of New Zealand parents are expressing concern and are opposed to the new curriculum from the Ministry of Education … teaching children you may be born in the same body and you can simply change your biological sex.’
  3. The article quoted the board chair as saying the school was continuing to engage with the Ministry of Education about its Christian beliefs. The chair said the school wanted respect for its right to hold and express these beliefs , which “would not be changing”.
  4. The article included other quotes from others who opposed Ms de Klerk’s views, including a “health practitioner” and a psychotherapist who both expressed concern about Ms de Klerk’s views. The psychotherapist said the views were “transphobic” and “hateful”.
  5. The article continued with information about a review by the Education Review Office, ongoing discussions between the Ministry of Education and Bethlehem College on the issue, and comments from the Associate Education Minster, Jan Tinetti.
  6. The article also included links to previous articles, one link being to an article captioned Queer community supported after ‘year of hate crimes and violence that included information on an arson in Tauranga.

The Complaint

  1. The Media Council received complaints from Ms de Klerk, Mr Bob McCoskrie, Ms Fern Hickson, and Mr Paul Shakes as Chair of Bethlehem College. The complainants said including “bullying” in the headline made the article unbalanced and unfair and that Stuff’s removal of that word was not an effective or timely correction as required by Principle (12). While Stuff included an apology for the use of the word, this was buried at the end of the article. The complainants said the correction did not give equal prominence to the original defamatory statement.
  2. On timeliness of the correction, the complainants said it took at least three hours for Stuff to correct the heading. They said the original heading continued to show on Stuff’s app for some hours longer and continues to be available in google search results. They said Stuff did not add the correction and apology statement until around 2.51 pm.
  3. The complainants also objected to Stuff including quotes from a “health practitioner”, who was simply an osteopath (from Northland rather than Tauranga as originally published) who had commented on Ms de Klerk’s original Facebook post. They said labelling her as a health practitioner suggested she had expertise in gender issues and this made the article unbalanced.
  4. The complainants said failing to give Ms de Klerk or Bethlehem College the opportunity to respond to the comments made about them also made the article unbalanced. Some said Stuff should also have provided balance by including recently emerging views supporting Ms de Klerk’s position.
  5. Mr McCoskrie referred to an earlier Media Council decision involving gender dysphoria in which the Council had said ‘”It is important that all reasonable views are allowed to be heard, given the seriousness of the matters under consideration.”
  6. The complainants objected to the language used in the article. They generally felt that the language published about Ms de Klerk and the College was emotive and negative, in contrast with the language published from Ms de Klerk and the College. Through her lawyers, Ms de Klerk said she was not transphobic, as her Facebook post did not meet the dictionary definition of expressing ‘“fear or dislike of transgender or non-binary people.”’
  7. Mr Shakes, Chair of Bethlehem College’s Board, noted that while Stuff had since withdrawn the full article, this did not stop the harm continuing, saying “there is nothing, not even their inadequate correction, available to counterbalance the false and defamatory allegation seen by thousands of viewers. Only an explicit and prominent apology can change those viewers’ perception and counter the continuing availability of the article and headline which remain readily available elsewhere online.”
  8. Finally, the complainants said the article was part of a continuing campaign against the College on the issues and asked that Stuff cease allowing the journalist to cover them. Mr McCoskrie said the article was biased because it “rehashed a lot of old material” including claims that “an arson attack was as a result of anti-queer sentiment – a claim that has not been proven.”
  9. Ms Hickson said the article had breached Principle (2) Privacy. Ms Hickson said Ms de Klerk’s comments had been made on her personal Facebook page and in elevating the responses into a published article, Stuff had breached Ms de Klerk’s “reasonable expectation of privacy”. She said Stuff’s actions were “akin to overhearing a conversation on the bus and then mounting a public campaign to amplify the discussion and discredit the speaker.”
  10. More broadly, Ms Hickson said the article was “a continuation of Stuff’s longstanding policy of one-sided reportage on this issue”. Mr McCoskrie said the reporter should be removed from reporting on the subject as she had already received a “rebuke” from the Media Council on a previous article (School launches investigation after alleged threats made to students supporting LCBTQIA+ community). He also referenced two other articles on gender issues in Tauranga from the same reporter (School told trans student: ‘God doesn’t make mistakes’ – then they tried to kill themselves, and ‘Ignorance is breeding hate’: Why Tauranga’s queer community feels under siege), saying these showed  an unbalanced approach and a campaign against the College and its views.

The Response

  1. Stuff amended the article just over three hours after the original publication. The amendments included:
  • Removing “bullying” from the headline
  • Correcting the location of the quoted health professional from Tauranga to Northland
  • Adding information on criticism of the book endorsed by Bethlehem College on gender issues
  • At the end of the article, adding a correction statement and apology to Ms de Klerk.
  1. On 23 November Stuff withdrew the article entirely.
  2. In its response to the Media Council, Stuff agreed the headline should not have included “bullying”. Stuff had removed this from the headline and published an apology. It said the article was not biased and it defended the inclusion of the arson attack as fair comment and relevant to the issues.
  3. Stuff said it did not include the alternative views suggested by the complainants as the article was not part of a wider debate. It said the article included the views of Ms de Klerk and Mr Shakes “prominently and before any other view was given.” It noted the earlier decision of the Media Council to which Mr McCoskrie had referred was a complaint about another publication.
  4. Stuff said it had approached the osteopath because she had responded at length on Ms de Klerk’s Facebook post, and that her occupation was immaterial.
  5. Stuff asserted the reporter was not biased and Stuff would not be removing her from reporting on Bethlehem College.

Final comments from complainants

  1. In response to Stuff’s comments, Ms de Klerk was disappointed that Stuff had “rejected” that the article was unbalanced or revealed an agenda but didn’t give any reasons.” She also noted that the article included a lot of quotes from Einstein Hale who attacked her using loaded language. She noted Stuff identified Mr Hale as “Dr” when he did not hold that qualification.
  2. Ms de Klerk reiterated her concern about Stuff quoting the osteopath who did not have a professional psychological background and was allowed to attack her. She said Stuff failed to quote other experts who shared her views.
  3. Ms de Klerk said “Stuff only apologised for using “bullying” in their headline. They haven’t apologised for other false accusations such as ‘transphobia’, or for defaming me in a major story which was seen by hundreds of thousands of people. Simply retracting the story doesn’t undo this, they need to admit they were in the wrong.”
  4. She said the article affected the reputation of the counselling service at Bethlehem College and may prevent students coming forward who need support.
  5. Mr Shakes said Stuff’s apology did not have fair prominence in breach of Principle (12) and Stuff’s process for complaints and their decision-making was flawed, even though Stuff eventually retracted the article. He said Stuff’s response did not address issues such as positioning an osteopath as an expert and its “use of inflammatory and unbalanced language that reveal an unfair and unbalanced approach”.
  6. Mr McCoskrie said publishing a large photo with the word “bullying” had done the damage, even if Stuff apologised at a later stage. He said the Council needed to give sanctions to deter this happening.
  7. He said the arson attack covered in the article should not have been included as it had no direct connection to the counselling situation in the school.
  8. He said although Stuff argued the article was not a wider debate, Stuff included two third parties commenting on it from one perspective and failed to include other third parties to present a differing view. He said most readers would have assumed the osteopath was an expert in the gender area, which she was not.
  9. Finally, Mr McCoskrie said the reporter was “obsessed” with the issue and gave examples of what he saw as one-sided coverage.
  10. Ms Hickson said it was “disingenuous of Stuff to claim that there was nothing wrong with their article attacking Ms de Klerk’s opinions when they admit they have had to remove the article from their website after receiving a letter from her lawyers.” 

The Discussion

Principles (1) Accuracy, Fairness and Balance and (12) Corrections

  1. Principle (1) says “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.”
  2. Principle (12) says “A publication’s willingness to correct errors enhances its credibility and, often, defuses complaint. Significant errors should be promptly corrected with fair prominence. In some circumstances it will be appropriate to offer an apology and a right of reply to an affected person or persons.”
  3. The article developed a story about Ms de Klerk’s Facebook post in which she outlined some of her views on gender issues, including her disagreement with the Ministry of Education’s curriculum requirements on teaching gender to school children. The article included commentary from people who disagreed with Ms de Klerk’s views.
  4. The Council upholds the complaints under Principle (1) for lack of fairness. It was a significant error to headline the article by saying Ms de Klerk had been accused of bullying and Stuff admitted there was nothing to substantiate this statement.
  5. The correction, although published in just over three hours, was not sufficient to defuse the complaint and the incorrect headline set up a ripple effect, especially for Ms de Klerk. More care should have been taken in light of the damage that can be done to an individual by an inaccurate headline.
  6. The Council does not uphold the complaint under Principle (12). The Council accepts that the correction and apology statement was quick and accepts the statement’s position at the end of the revised article as consistent with standard industry practice. The complainants observed some delay in the correction showing on Stuff’s app, and the Council encourages Stuff to review its processes to ensure corrections are consistently published in all fora.
  7. The Council also accepts that Stuff’s subsequent withdrawal of the article without further published comment meets the requirements of Principle (12). It is unfortunate that an internet search continues to reveal the original headline (but neither version of the article). The continuing impact on Ms de Klerk is part of the reason for the Council upholding the complaint under Principle (1).
  8. Additionally, Stuff added unfair weight to the opinions opposing Ms de Klerk and Bethlehem College by credentialling the osteopath as a “health practitioner” from Tauranga. It is true that an osteopath is a health practitioner, but not disclosing the particular area of practice would have reasonably led readers to believe the person’s expertise was relevant to the issues. Stuff itself admitted her occupation was not relevant saying “her profession was immaterial”. It would also have been preferable for Stuff to have drawn attention to the correction of the osteopath’s location from Tauranga (suggesting some relevance as a local commentator) to Northland.
  9. The Council does not uphold the complaints under Principle (1) for lack of balance. The article clearly contained controversy and disagreement on the issues covered. However, the Council is satisfied that Stuff gave fair voice to the opposition view – which was, in the context of the article, the views of those opposing Bethlehem College’s stance. The complainants did not suggest Stuff had failed to present their views, but rather felt Stuff should have gone further and sourced further views to support the position of Ms de Klerk and the College. The Council agrees that taking that approach would have provided more comprehensive coverage of the issues but in this instance, not doing so did not make the article unbalanced.
  10. It is an important aspect of the freedom of speech that protagonists in a debate are entitled to express their views. The Council accepts that the quotes from those opposing Bethlehem College’s stance included strong and emotive language. While generally the quotes from Ms de Klerk and Bethlehem College could be said to be expressed more moderately, Ms de Klerk also uses emotive language, saying the Ministry’s curriculum required “the teaching of lies to little ones”.
  11. More generally, the Council finds linking the article covering an arson attack does not breach Principle (1). Publishing multiple articles does not necessarily mean Stuff is conducting a campaign against Bethlehem College. Mr McCoskrie correctly notes the Media Council found Stuff in breach of Principle (1) on an earlier article (Decision 3298). However, that complaint was not upheld on the grounds of bias but rather on unfairness because Stuff failed to seek comment from the College before the article was first published. The Council finds the remaining two articles are not evidence of an unbalanced campaign.
  12. The final aspect to be considered is whether Ms de Klerk was entitled to a right of reply under Principle (12) on the unsubstantiated claim she had been accused of bullying. On balance, and given Stuff ‘s amendment of the headline, the Council does not believe a right of reply was needed.

Principle (2) Privacy

  1. Principle (2) says “Everyone is normally entitled to privacy of person, space and personal information, and these rights should be respected by publications.”
  2. Ms Hickson complained that Ms de Klerk’s privacy had been breached because Stuff had taken  information from Ms de Klerk’s personal Facebook post and amplified it. The Council does not find Stuff breached Ms de Klerk’s privacy. As Stuff was able to read Ms de Klerk’s post and comments, the post was not private and there is no reasonable expectation a public post on Facebook is to be kept private.

Principle (4) Comment and Fact

  1. Principle (4) says “A clear distinction should be drawn between factual information and comment or opinion. An article that is essentially comment or opinion should be clearly presented as such.”
  2. Ms Hickson complained that the article was simply opinion but breached Principle (4) by not being identified as an opinion piece. The Council finds that while the article contained a number of opinions, it was not in itself an opinion piece. Rather, the article reported on Ms de Klerk’s Facebook post and the reactions to it.

Principle (6) Headlines and Captions

  1. Principle (6) says “ Headlines, sub-headings and captions should accurately and fairly convey the substance or a key element of the report they are designed to cover”.
  2. Stuff accepted the word “bullying” should not have been included in the headline and removed it. The Council notes there was nothing in the article to show Ms de Klerk had been accused of bullying and agrees the term should never have been included. This means the original headline did not “accurately and fairly convey the substance or a key element of the report [it was] designed to cover” in breach of Principle (6), but this was corrected.

Decision

  1. The complaints are upheld under Principle (1) in relation to fairness. The complaints are not upheld on the other Principles.
  2. The Council apologises to the parties for the delay in considering the complaints.

Council members considering the complaint were Raynor Asher, Hank Schouten, Tim Watkin, Scott Inglis, Katrina Bennett, Ben France-Hudson, Jo Cribb, Judi Jones, Marie Shroff, Alison Thom

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