CHRISTINE CULLEN AGAINST THE PRESS/STUFF
Case Number: 2897
Council Meeting: MAY 2020
Verdict: Not Upheld
Publication: The Press
Balance, Lack Of
Headlines and Captions
 On 18 March 2020 Stuff published an article Abortion legalised in New Zealand with Parliament passing new law in 68 – 51 vote. Christine Cullen complains that this headline breaches Media Council Principles 1: Accuracy, Fairness and Balance and 6: Headlines and Captions.
 Ms Cullen complains that the headline was inaccurate, erroneous, misleading and not factual. She also suggests that the article itself was unbalanced. Citing two online sources (Wikipedia and Family Planning) Ms Cullen suggests that abortion has always been legal in New Zealand in certain circumstances, for example, where two certifying doctors agree that continuing the pregnancy would result in serious danger to a woman’s mental or physical health. She accepts that abortion was addressed in the Crimes Act 1961, but she maintains that the purpose of those provisions was to make abortion an exception to the rule against murder in certain circumstances. As a result, abortion was already ‘legal’ in New Zealand. Any other reading would suggest that previous abortions carried out in New Zealand were illegal. She suggests that the word ‘liberalised’ would have been a less emotive and more accurate description of the law change.
 In response the editor of The Press (which carried the article complained of on 19 March 2020) notes that for 40 years abortion was an offence under the Crimes Act 1961 and was, therefore, a ‘crime’. She also notes comments made by the Minister for Justice, Andrew Little, who stated in relation to the law change that “For over 40 years, abortion has been the only medical procedure considered a crime in New Zealand”. The editor accepts that there were exceptions to the Crimes Act provisions, which sanctioned abortion in certain circumstances. Outside these exemptions, however, abortion remained an offence carrying a maximum penalty of 14 years’ imprisonment.
 The enactment of the Abortion Legislation Act 2020, however, removed abortion from the Crimes Act, which meant it was no longer an offence. In the editor’s view the headline referred to this essential and important change: “Abortion was no longer illegal, it was legalised”.
 Media Council Principle 1 – Accuracy, Fairness and Balance 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.
 Media Council Principle 6 - Headlines and Captions states that:
Headlines, sub-headings, and captions should accurately and fairly convey the substance or a key element of the report they are designed to cover.
 In part, this complaint arises because of the flexibility of the English language, particularly where there is an attempt to capture technical legal concepts in simple everyday language. Ms Cullen is correct to note the Wikipedia and Family Planning websites that described New Zealand’s former position on abortion as ‘legal’ in some circumstances. These websites were technically correct, although it takes a close reading of the Crimes Act 1961 to get there. Prior to the passage of the Abortion Legislation Act 2020, s 183 of the Crimes Act 1961 (entitled “Procuring abortion by any means”) stated that, among other things, a person would be liable for imprisonment for a term not exceeding 14 years who, with intent to procure the miscarriage of any woman or girl, “unlawfully” took any of the steps that would result in a miscarriage. The word “unlawfully” was defined in s 187A as any act specified in s 183unless it was caught by the range of circumstances noted above, and included, for example, “that the continuance of the pregnancy would result in serious danger (not being danger normally attendant upon childbirth) to the life, or to the physical or mental health, of the woman or girl”.
 It follows that performing an unlawful abortion was a criminal offence in New Zealand and was, therefore, illegal. However, this position has now changed and as noted by the Explanatory Note to the Abortion Legislation Bill 2019, the purpose of the Bill was to, among other things, decriminalise abortion. It did this by amending s 183 of the Crimes Act 1961 so that it now says it is only an offence for a person (other than a health practitioner) to procure an abortion. It also amended the Contraception, Sterilisation, and Abortion Act 1977 and that Act now regulates the circumstances under which abortion services can be provided. Overall, the changes meant that abortion is, in general, provided like other health services. It follows that technically the verb “decriminalised” more accurately describes the effect of the Abortion Legislation Act 2020 than the verb “legalised”, particularly given abortion remains a crime in some circumstances.
 However, the Media Council does not read the headline of the article Abortion legalised in New Zealand with Parliament passing new law in 68 – 51 voteas suggesting that all abortions performed prior to the passage of the Abortion Legislation Act 2020 were illegal. Rather, we consider that the reference to ‘legalisation’ was to the removal of abortion as a crime from the Crimes Act (at least where performed by a health practitioner). This is reinforced by the first sentence of the article which expands on the headline: “New Zealand has legalised abortion, removing the practice from the Crimes Act and liberalising access to abortion services”. While in a technical sense Ms Cullen may have a point, the Media Council does not consider that, to the general reader, the headline was inaccurate or that it deliberately misled or misinformed. The general effect of the amending legislation is that an abortion no longer needs to come within the exceptions listed in the Crimes Act 1961 to avoid the consequences of that Act. In this sense it is not inaccurate or misleading to say that it has been ‘legalised’.
 The Media Council also disagrees with Ms Cullen’s suggestion that Stuff ought to have used less emotive language. We do not consider that there is any obligation on the media, particularly in the context of headlines, to avoid emotive language. Indeed, the purpose of a headline is to capture the reader’s attention and sketch the content of the full article and emotive language plays an important role in this context.
 Overall, while reasonable people may differ on the language that could have been used, and a different verb (for example ‘decriminalised’ (in most circumstances)) may have better described the position, in the context of the brevity necessary for a headline, the complexity of the legislative position and the generality of language often used in this context we do not view the term as inaccurate or misleading. A headline should not be expected to convey the subtleties of what is a remarkably complex statutory, political and social issue. Moreover, there have been a large number of articles addressing the general issue; this is but one example.Balance has been achieved over time. We do not consider there has been a breach of Media Council Principle 1 or 6.
Media Council Principle 1 – Accuracy, Fairness and Balance: not upheld
Media Council Principle 6 – Headlines and Captions: not upheld
Media Council members considering the complaint were Hon Raynor Asher, Rosemary Barraclough, Liz Brown, Craig Cooper, Jo Cribb, Ben France-Hudson, Jonathan MacKenzie, Hank Schouten, Marie Shroff, Christina Tay and Tim Watkin.