FERN HICKSON AGAINST RNZ

Case Number: 2963

Council Meeting: OCTOBER 2020

Verdict: Not Upheld

Publication: Radio NZ

Ruling Categories: Accuracy
Balance, Comment and fact, Lack Of
Columnists
Misrepresentation, Deception or Subterfuge
Unfair Coverage

Overview

1. Three complainants, Speak Up for Women (represented by Beth Johnson), Fern Hickson and Jenny Whytecomplain about a video (and accompanying article) produced by Hex Works Ltd and published byRNZ on August 12, 2020 with the title TERFS - Alice Snedden’s Bad News. The grounds for complaint are slightly different in each case, but in general they consider there was a breach of Media Council principles 1 (Accuracy, fairness and balance), 4 (Comment and fact), and 9 (Subterfuge). Although not specifically mentioned in the complaints, Principle 5 (Columns, opinion and letters) is also relevant.

2. The Media Council does not uphold the complaints.

Background

3. The video is one episode in an eight part series entitled Alice Snedden’s Bad News and published online by RNZ in the podcast and series section of its website. It is described in its introductory material as “Docu-comedy series that wrestles with some of the most confusing & contentious political & social issues confronting Aotearoa in 2020”, and also as “A broad range of interviews with experts explore these sensitive nuanced subjects, while Snedden wrestles with her own specific point of view and set of privileges.”

4. One focus of the episode is a conference entitled Feminism 2020 organised by Speak Up For Women (SUFW). The conference was to have been held at Massey University in November 2019 but was cancelled and subsequently held at Parliament on 15 November 2019. Ms Snedden attended the event with two colleagues, Amber Easby and Ainsley Calderwood, using tickets booked by Natalie Wilson. There had been an email from the conference organisers asking for the names of attendees, butRNZ says the email was not opened and no response was made.

5. Under her jacket Ms Snedden was wearing a T-shirt that resembled an official conference T-shirt from the front but with “Trans Women are Women” printed on the back.The episode includes some footage of an occurrence towards the end of the event when she took off her jacket and asked a question. The two colleagues were filming her at the time and one was asked to stop filming. It is not clear from the footage what happened next, but Ms Snedden described it as an assault on Ms Easby, and a complaint was lodged with the police, who eventually took no action on it.

6. The remainder of the programme consisted of interviews with two transgender advocates, Georgina Beyer and Caitlin Spice. The interviews, which became quite emotional at one point, discussed transgender women, feminism and the attitudes of “transgender exclusionary radical feminists’ (TERFS).

7. The video was accompanied by a short article which consists of a paragraph describing the content of the episode followed by nine paragraphs in which Ms Snedden explains her views on feminism and trans women. The word “opinion” appears in bold at the start of the article.

The Complaint

8. Beth Johnson complains on behalf of Speak up for Women (SUFW) which she describes as a diverse group of ordinary New Zealanders with a shared interest in the rights of women and girls. She submits that “Gender Critical Feminists” (the implication being that that is a description of the views held by SUFW) believe that sex, not gender, is the basis of women’s rights and so they oppose self-identification policy and law. In this context, Ms Snedden

  • Uses dismissive language towards them
  • Interviewed “only transsexuals, and not any other type of transwomen”, thus creating imbalance and deliberately subverting the gender critical argument
  • Failed to use any material from the speeches at the event (which were published shortly after the event) and implied that she had not been permitted to do so.
  • Said that SUFW representatives had refused to be interviewed when there had been an offer of an interview
  • Included no facts about SUFW or about gender critical feminists in general.
  • Was generally biased against SUFW and the views of its members.

9. The video footage inside Parliament was unlawfully obtained and included a staged performance designed to lead viewers to believe an assault had taken place when there had been no assault.

10. In relation to RNZ’s response to the complaint, Ms Johnson reiterates her view that the video was unbalanced especially in failing to present the views of SUFW or to offer an interview with any other “gender critical thought leader”. Ms Johnson took the opportunity to appear before the Media Council, and clearly explained her concerns in person and answered questions.

11. The main thrust of Fern Hickson’s complaint is that there was no clear distinction between factual information and comment or opinion, and that the material facts on which opinion was based were inaccurate.She citesRNZ’s advance publicity material and says the video was depicted as incisive investigation and was promoted as documentary-style reporting. There was no mention of comedy in the introduction to the episode in question. A reasonable viewer who had read the introductory material would expect to watch “an explorative show about current events, with a humorous twist, but not purely a comedy.” Indeed this is what was presented in another episode of the show.

12. There were many inaccuracies, including:

  • Misrepresentation of the beliefs of gender-critical feminists
  • Presenting the issue as clear-cut when it is not
  • Interviewing transsexuals when the concerns of gender critical feminists are not with transsexuals but with sex self-identification laws
  • Mentioning that speakers at the SUFW conference had been banned from Twitter for hateful conduct without explaining the grounds for the definition of “hateful conduct”.
  • Characterising those opposed to Snedden’s view with derogatory terms without explaining why the terms are deserved - when they were not.
  • Reporting that the keynote speaker “said some pretty horrible shit”
  • Misleadingly implying that SUFW were given a genuine opportunity to present their view but did not accept it.

13. She adds that RNZ has failed to address her complaint that the programme presented itself as a documentary when it was “a biased political hit piece”. It was also inappropriate to send her a generic response along with all other complainants.

14. Jenny Whyte was the organiser of the SUFW event.Her complaint focusses on the claim that no-one involved in the event was prepared to speak to Ms Snedden. She says SUFW initially agreed to make one of the four speakers available but later withdrew the offer. The other three speakers have confirmed that there was no approach to them when they could easily have been contacted. She also says that while the item mentions a report to the police of a claimed assault after the event, no charges were laid. The police findings should have been given as much emphasis as the claim of assault.

15. In addition, Ms Whyte complains that Ms Snedden and her colleagues gained entry to the event under the guise of members of the public after being refused press passes and rights to make images. They did not respond to the request for the names of proposed attendees and thus failed comply with the process for entry to the event. A counterfeit T-shirt was used as a form of subterfuge to gain entry.

The Response

16. RNZ responded in some detail to the three complainants (along with other complainants who did not bring their complaints to the Media Council) although it did not address each complaint letter individually. It began by stating that the “Bad News” series was represented and promoted as a “docu-comedy and the written material associated with it was clearly labelled “opinion.” It said “it does not purport to be a documentary or a news and current affairs report on a particular issue of the day to which the stringent standards of accuracy fairness and balance would apply. It is a comedy series presented by an outspoken and strong personality.”

17. RNZ then made a number of points about freedom of expression, especially about the right to freedom of political speech and the seriousness of any restriction of the right to impart or receive political speech. It also sought to draw a distinction between “members of an audience taking offence at something and an actual harm being inflicted”, saying that there was no demonstrable harm.

18. Addressing issues of accuracy, fairness and balance, RNZ explained its approach to the use of the terms “bigots”, “bitches”, ‘witch”, witches” and “TERFS”. It acknowledged that some might find the terms offensive or derogatory, but that the language generally was not a breach of formal standards.

19. SUFW was contacted on five occasions and invited to contribute to the programme, but chose not to participate. At a late stage, after the video had been completed but not screened, SUFW did make a “somewhat conditional offer” to undertake an interview, but for practical reasons as well as for the nature of the conditions the offer was not progressed, although it remained open.

20. The “assault” incident was reported to police on the advice and recommendation of security personnel at Parliament.RNZ says “given the commonly held definition of assault being “an unwanted physical contact”, Ms Snedden’s producer was justified in reporting the matter. What was unusual about the incident was the fact that it occurred, not what action was taken by the police once the incident was reported to them.”’

21. In relation to Principle 4, both the video and the written pieces were clearly labelled as “comedy” and “opinion”.It was made clear that the presentation was of someone’s commentary.

22. On the “subterfuge” issue, RNZ says the organisers knew who Ms Snedden was and why she was attending, allocated the three passes to the event and gave permission for photographs to be taken. She did not attend the conference with a film crew, although camera people from her production company did (with the permission of the Speaker of the House) film in areas outside the actual meeting venue.

The Decision

Discussion

Preliminary remarks

23. These complaints need to be considered in the light not only of the Media Council’s Principles, but also of the preamble to the Principles that sets out the general obligations and rights of the media.In particular, the fifth paragraph of the preamble states, “Distinctions between fact, on the one hand and conjecture, opinion or comment on the other hand, must be maintained. This does not prevent rigorous analysis. Nor does it interfere with a publication’s right to adopt a forthright stance or to advocate on any issue. Further, the Council acknowledges that the genre or purpose of a publication or article, for example, satire, cartoons or gossip, call for special consideration in any complaint.”

24. It is also noted that some people may have been offended by the levity with which the video approaches serious questions to do with gender, sex, sexuality, sexual orientation and minority groups generally, and by some of the language used. However it is a long-established rule that there is no right not to be offended. The test is not, asRNZ appears to believe, whether any harm can be identified as resulting from the approach and language, but whether there is a breach of the relevant principles, such as a failure to avoid gratuitous emphasis on certain protected categories

25. Ms Johnson describes the use of the term TERF (Trans Exclusionary Radical Feminists) as referring to those opposed to “sex self-identification policy and law”. TERF is a term that seems to have acquired an extended meaning in recent years and the Media Council understands that it is now commonly used to cover those expressing views about transgender women that range from denying that they exist to seeking some restrictions on self-identification.

Principle 1

26. To a large extent, the complainants are concerned with what they see as unfairness and imbalance in the video. They say, for example, that Ms Snedden spoke to “two transsexuals and not to any other type of transwomen”, that SUFW views were not explained despite the availability of material about them, nor were any of their members or speakers at their conference interviewed. The requirement for fairness and balance relates only to news reporting and not to opinion and similar pieces. Opinion is necessarily biased towards the writer’s own views, and Principle 5 makes it clear that balance is not essential in an opinion piece.

27. The video was described in RNZ’s promotional material as a “docu-comedy” and appears to be a mixture of entertainment, comment and opinion, with perhaps an element of satire. The article accompanying the video is clearly marked “opinion” and much of it is about Ms Snedden’s personal experiences and beliefs. This item is clearly opinion presented as such.

28. The video itself is a little more ambiguous, and in part it reports an actual event and Ms Snedden‘s experience at it.However there is no suggestion that her report, if that is what it is, is inaccurate apart from some difference of opinion about the alleged assault. Whatever the truth of that occurrence, it is clear that Ms Snedden and her colleagues were asked to leave, there was some sort of disturbance, the police became involved, apparently at the suggestion of Parliamentary security and that in the end no charges were laid. All of this is either undisputed or obvious from the video, and the remainder of the complaint relates to the interpretation placed on the events, which is a matter of opinion.


29. As to the rest of the video, almost its first words indicate opinion (“Personally, I think . . . .”), and it is clear throughout that Ms Snedden and the interviewees are mostly expressing opinions rather than facts. The general tone of the discussion is casual and the language, especially Ms Snedden’s language, is colloquial. In fact some members of the Council expressed disquiet about the abusive language directed towards gender-critical feminists to the extent that it was described as a rant. However the Council decided that while this would be unacceptable in a news setting, there was more leeway for a programme which had some comedy elements. There was general agreement that this would have been a much better, more informative programme and closer to a genuine documentary if it had made a serious attempt to explore the position taken by gender-critical feminists. Other episodes in the series seemed to genuinely look at all sides of the issues examined, but the TERFS episode did not. Nonetheless, it is clearly not news reporting (it is noted that it appears in the “podcast and series” section of theRNZ website, not the news section) and accordingly the requirements for fairness and balance (Principle 1) do not apply. It is, however, a requirement that material facts on which an opinion is based should be accurate (Principle 4).

Principle 4

30. The issues that need to be determined under this principle are

  • Whether there was a clear distinction between fact and opinion
    • Whether opinion was clearly identified as such
    • Whether the material facts on which any opinion was based were accurate

    31. For the reasons given under the discussion of Principle 1, the Media Council is of the view that there was a clear distinction between fact and opinion and that opinion was clearly identified as such.

    32. There remains the complaint that the facts on which opinions were based were inaccurate. Most of the inaccuracies cited by the complainants are not actual inaccuracies but perceptions of bias or unfairness, such as the concern that Ms Snedden mentioned that speakers at the SUFW conference had been banned from Twitter for hateful conduct without explaining the definition of “hateful conduct” used by Twitter.

    33. The Media Council can only identify three possible complaints of actual inaccuracy in the facts underlying Ms Snedden’s opinions These are:

  • She implied she had not been permitted to use material from the speeches at the conference
    • She said that SUFW representatives had refused to be interviewed when there had been an offer of an interview
    • She misrepresented the beliefs of gender-critical feminists

    34. The first item is not really a complaint of inaccurate fact, but in any event, the only part of the video that appears at all relevant is about refusing to permit the use of footage taken at the event, not the published speeches.

  • 35. During the preparations for the Feminism 2020 event, at the time when it was still expected to be held at Massey, the producer of the programme requested an interview with a spokeswoman for SUFW and shortly afterwards asked for permission to film the event. While SUFW at first seemed prepared to participate in an interview, it later asked for a pre-interview discussion (to which there appears to have been no response), and at no time gave permission for filming. It appears that from early October it refused all requests for interview, apart from a conditional offer at a very late stage after the programme had been completed. In this context, it is stretching a point to say that there was an offer of an interview, and clearly there had been no firm offer at the time Ms Snedden recorded the video. Makers of the programme could have made more effort to obtain other comment, but neither did SUFW make the most of the opportunity for them to comment. The Media Council can find no inaccuracy.

    36. Finally, as noted above, the terms “trans-exclusionary radical feminists” and/or “gender-critical feminists” are generally applied to those holding a variety of views on trans women including the view that trans women are not women. Others who are labelled as TERFS do not hold the view that transwomen are not women. The complainants submit that the concerns (of SUFW, at least), are about sex self-identification, but it is very clear from publicly available information, including the speeches at the event that the concerns of speakers at the event were not confined to sex self-identification.

    37. The views of gender-critical feminists are undoubtedly more complex and varied than presented by the documentary. The Council considered that while the programme’s presenter was entitled to concentrate on one aspect of those opinions, the very simplistic portrayal of the opinions was close to (but did not actually cross) the line in terms of misrepresentation.

    Principle 9 – subterfuge.

    38. This complaint is about the way in which Ms Snedden and her colleagues gained access to the conference at Parliament and filmed the proceedings. There is agreement that tickets were obtained by Ms Wilson, who was not known to the conference organisers, and that there was no response to an email requesting the names of attendees. However there is no clear evidence beyond that.RNZ says that it was administratively convenient for Ms Wilson to obtain the tickets.

    39. It is submitted that when Ms Snedden presented her ticket she was questioned by officials concerned that a ticket in the name of Ms Wilson had already been presented, and that she gained entry of the strength of her T-shirt. Ms Snedden denies that any such exchange took place. The Media Council is not an investigative body and cannot determine this conflict of evidence, though it notes that the T-shirts were presumably available before entering the conference hall to anyone attending, without proof of identity.

    40. One thing that is clear is that Ms Snedden is a distinctive figure. If she was not recognised by SUFW organisers any earlier (and she appears to have sat without comment through the four speeches delivered at the event), she was undoubtedly identified when she asked what all parties agree was a long and repetitive question – yet she was not asked to leave. It was only when one of her colleagues was seen to be filming that action was taken.

    41. It is clear that permission to film the event (then to be held at Massey) was denied in early October. It is also clear from the video that Ms Snedden and her colleagues were told that photographs could be taken once inside the Parliament venue. The complainants submit that there was later an announcement that there was to be no photography, but no record of that announcement has been supplied, nor is it certain that Ms Snedden and her colleagues would have heard it.

    42. While the Media Council has some concerns about the way in which Ms Snedden gained access to, and recorded the event, it is not satisfied that there is sufficient evidence to support a finding of actual subterfuge.

    Determination

    The complaints are not upheld.

    Media Council members considering the complaint were Hon Raynor Asher (Chair), Rosemary Barraclough, Katrina Bennett, Liz Brown, Craig Cooper, Jo Cribb, Ben France-Hudson, Hank Schouten, Marie Shroff and Christina Tay.

    Tim Watkin took no part in the consideration of this complaint.