Ministry of Health and Television New Zealand Ltd - 2000-030, 2000-031

Members

  • S R Maling (Chair)
  • L M Loates
  • R McLeod
  • J Withers

Complainant

  • Ministry of Health

Dated

2nd March 2000

Number

2000-030–€“031

Channel/Station

TV One

Broadcaster

Television New Zealand Ltd


Summary

Items concerning a research finding that a lyprinol extract from green-lipped mussels had been shown to be effective in killing cancer cells were broadcast on TV One on 30 July 1999 on One Network News and Holmes, commencing at 6.00 pm and 7.00 pm respectively. It was reported that researchers believed that the compound could inhibit the spread of certain types of cancers, and that they were about to commence clinical trials.

The Ministry of Health complained to Television New Zealand Limited, the broadcaster, that the items were inaccurate, unbalanced, lacking in objectivity, and distorted the research and its significance. The tone and "sheer volume of coverage" contributed to this lack of balance, it wrote. The programmes failed to make it clear that Lyprinol was a dietary supplement and therefore a product about which therapeutic claims could not be made. Furthermore, the Ministry submitted, no independent commentators had appeared in the items.

TVNZ responded that the reports were tempered by reminders that clinical trials of lyprinol had yet to be held. The emphasis, it wrote, was not on the commercial product, but on the researcher’s experimental work and the fact that the extract involved was acquired from a shellfish unique to New Zealand. The news of the research break-through was, it said, good for New Zealand not only because of the medical implications, but because of the ramifications for the industry. No claims were made that the product was a medicine, it said, and stories broadcast on following days reflected other viewpoints on the lyprinol issue. TVNZ declined to uphold the complaints.

Dissatisfied with TVNZ’s response, the Ministry of Health referred the complaints to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaint that aspects of the items were inaccurate. It declines to uphold any other aspect of the complaints.

Decision

The members of the Authority have viewed tapes and read transcripts of the items complained about, and have read the correspondence which is listed in the Appendix. It has also viewed tapes of items broadcast in the week following the broadcast of the items complained about. On this occasion, the Authority determines the complaints without a formal hearing.

The Complaints

Reports of a research finding that a lyprinol extract from green-lipped mussels had been shown by an Australian researcher to be effective in killing cancer cells were broadcast on One Network News and Holmes on 30 July. The items were presented as being exclusive to TVNZ and reported that researchers believed that the compound could inhibit the spread of certain types of cancers and were about to commence clinical trials.

The Ministry of Health complained to TVNZ that the tone and combined coverage of the network’s news items on the possible curative powers of Lyprinol created a misleading impression of the product as a medicine. It was, it pointed out, only a dietary supplement, and therefore a class of product which was not by law allowed to make therapeutic claims. A more balanced approach would have stressed the unproven nature of its effect on cancer in humans, pointed out the long developmental time needed for new medicines, and clarified that the researcher’s results "were but one of a multitude of laboratory results", it wrote.

More journalistic research, a few more pertinent questions from any of those involved in getting the broadcaster’s stories to air, an early approach to the Ministry’s medicines licensing authority for comment on the status of Lyprinol, or greater deliberation on how the stories might have been received by those with cancer, could have provided greater balance, the Ministry submitted. It concluded that:

…only time will tell if TV One was part of, rather than reporting on, the "cynical marketing ploy" which this story may yet prove to have been.

In a further letter to TVNZ, the Ministry submitted that the programmes breached the Television Code of Broadcasting Practice requirement for accuracy because the broadcaster had failed to convey that Lyprinol was not a medicine. The product was available in chemists’ shops as a dietary supplement, it wrote, and dietary supplements were "prohibited by law from making any claims to cure or improve medical conditions". Had the product’s status been more accurately described, that would have countered the clear impression conveyed in the programmes that the product was a medicine, and as such could potentially improve the health of or cure patients, it continued. In addition, the programmes also referred to "600 (scientific) papers published worldwide supporting Lyprinol’s efficacy", the Ministry noted. It said that its experts had been unable to trace any such papers through searches of reputable medical and scientific journals. That aspect of the coverage also merited some scrutiny, it suggested.

The Ministry submitted there was also a lack of balance in the broadcaster’s approach, and it wrote:

…despite a lead time sufficient for your reporter to do a piece to camera in front of Adelaide hospital … there were no independent commentators such as a medicines expert, an independent researcher, an oncologist or an authoritative agency such as the Cancer Society or the Ministry of Health. Most of the comment came from people who directly or indirectly stood to gain from the marketing of Lyprinol…

The programmes were not objective or impartial, the Ministry continued. It referred to the trailers for the programmes, the "World Exclusive" banner, the reiteration of the word "exciting" and its variations, and equally the reiteration of "cure", "potential cure", "90 per cent chance". In the Holmes item, the presenter discussed the potential effect of the research findings on the New Zealand mussel industry and asked an interviewee (Hon John Luxton, the then-Minister for Food, Fibre, Biosecurity and Border Control):

Equivalent to the country winning Lotto perhaps or not that big?

When Mr Luxton replied by referring to the preliminary nature of the findings and the research work yet to be done, the presenter responded:

So we’ve got a ticket in the Lotto at least.

In its complaint, the Ministry wrote that the Lotto analogy "in our view conveyed a subjective and rather partial view".

No individual had been quoted as the source of the claim that clinical trials were predicted to have a "90 per cent chance of success", the Ministry noted. It suggested that anyone with experience in clinical trials would be "very unlikely to make such wildly bullish predictions", and continued:

Our own experts suggest that as few as one in 1000 promising compounds make it through to become a licensed medicine ie prove to act in the human body in the way laboratory experiments may have suggested.

Referring to the marketing associated with the promotion of Lyprinol, the Ministry observed that "one could suggest that TV One hosted the product launch".

TVNZ’s Response

In its response to the formal complaint, TVNZ said that the items broadcast the research findings and described them as "good news for New Zealand, not only because of the possible medical implications but because of the benefits which could accrue for the green-lipped mussel industry".

The broadcaster considered the complaint in the context of standards G1, G4, G6, G14 and G19 of the Television Code of Broadcasting Practice. The first three require broadcasters:

G1 To be truthful and accurate on points of fact.

G4 To deal justly and fairly with any person taking part or referred to in any programme.

G6 To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.

The remaining two standards state:

G14 News must be presented accurately, objectively and impartially.

G19 Care must be taken in the editing of programme material to ensure that the extracts used are a true reflection and not a distortion of the original event or the overall views expressed.

TVNZ commenced by noting that the emphasis which the Ministry had detected in the broadcasts on the claims made for the mussel extract was not as definite as its letter suggested. The information about the research work, it wrote, "was tempered throughout by reminders that clinical trials were yet to be held". It pointed out that the language used had seemed in its view to be deliberately cautious, and that two interviewees, while exhibiting their personal enthusiasm for the project, had stressed that the research had some way to go.

It then submitted that the items’ emphasis was not on the commercial product, but on the experimental work done by the researcher and his team, and on the fact that the mussel extract could only be acquired from a shellfish unique to New Zealand.

TVNZ said it accepted that in a story such as this not all angles could or would be covered in the initial broadcast period. The stories broadcast in the following days appropriately reflected a wide range of viewpoints on the lyprinol issue, it wrote, and fulfilled the requirement to present significant points of view within the period of current interest.

Turning to the "specifics" of the complaint, the broadcaster disagreed with the Ministry that the broadcast items did not make it clear that lyprinol was not a medicine. The reporter made it clear that the product was "a natural product, a food extract", it said. TVNZ referred to statements made by the reporter and Professor Borland, an interviewee on the programmes, who separately stated that lyprinol was a natural material, which was not toxic and would not cause any harm. The programmes’ description of lyprinol’s manufacture "carried no suggestion that the product was a medicine", it observed, and wrote:

It described how the compound comes straight from the New Zealand green-lipped mussel and is sent to Germany for refining into an oil. There is no mention of anything else being added to make the product anything other than a natural extract.

Referring to the Ministry’s criticism of the One Network News item’s claim that 600 scientific papers published worldwide supported lyprinol’s efficacy, TVNZ said that a large number of papers had been published on the efficacy of the New Zealand green-lipped mussel in treating asthma and arthritis. Its reporter had been shown published medical research linking the lypoxygenase pathway and cancer, it wrote. That reporter had been told by reliable sources that 600 papers were extant. Just because its researchers could not trace that material did not allow the Ministry to declare its reporter’s assertion inaccurate, TVNZ declared.

In next dealing with the Ministry’s criticisms of the programmes’ absence of independent commentators, TVNZ said that the emphasis had been on getting the facts as known to air at the time. It noted that the programmes included Dr Betts, the principal researcher, Professor Borland, an Australian researcher with twenty years’ experience in working on green-lipped mussels, and Dr Pitman, an oncologist. What it called the "medical" side was only half the story, the broadcaster submitted, saying it also had to reflect a range of views on the possible economic benefits of the research findings. TVNZ concluded that the context was a breaking story and its "emphasis was initially on the event rather than independent expert reaction".

It also denied that the words used in the items suggested that the researcher had discovered a cure for cancer. The emphasis was on the possibility that a cure might emerge from the research, the broadcaster asserted, and without the possibility of a cure, there would have been no story. It would have been unnecessarily equivocal to avoid the words "cure" or "potential cure", it suggested. It argued that the items were qualified throughout, but the story’s true intent would have been dissembled if the possibility of a cure had been avoided.

The Holmes item’s reference to a "90 per cent chance of success" was attributed to scientific sources, TVNZ wrote. The combination of the statement having come from "excited" scientific sources and viewers being able to see the caution exhibited in the reaction to that statement from Professor Borland ensured that the reference was placed in proper context, it said. The broadcaster submitted that the Lotto analogy also further watered down the "90 per cent" figure because it suggested a much smaller chance of success, even if the potential was huge.

TVNZ stated it was unable to find any untruthfulness or error of fact in the coverage and it declined to uphold the standard G1 complaint. It said that the participants were treated fairly on the programme and it declined to uphold the standard G4 complaint. Noting that the Broadcasting Act 1989 allows for balance within the period of current interest, the broadcaster said that balance was achieved in the broadcast of other views on its programmes over subsequent days, and it declined to uphold the standard G6 complaint. It declined to uphold the standard G14 complaint, and claimed that the programmes in their totality were objective and impartial. TVNZ denied the items’ tenor had been affected by the use of some words, in the way that the Ministry had indicated.

Finally, TVNZ said it had not upheld the complaint under standard G19 as the programmes represented a true reflection of the claims made by the research team, and the reaction in New Zealand from those connected with the green-lipped mussel business. "It also reflected accurately the views expressed about this issue up to the time of the broadcast", it concluded.

The Ministry’s Referral to the Authority

The Ministry’s initial referral was made before it had received a response from TVNZ. In that letter it advised that it was lodging the complaint on its own behalf and on behalf of the Cancer Society of New Zealand and the New Zealand Medical Association.

It reiterated its concern that both the tone and sheer volume of coverage of Lyprinol contributed to a lack of balance. It also believed the coverage was inaccurate and lacked impartiality and objectivity.

The Ministry enclosed a copy of an article from North and South which it said was a thorough piece of investigation which provided information on the manner in which the coverage of the discovery had, it claimed, been orchestrated.

TVNZ’s Response to the Authority

TVNZ emphasised the need to judge the stories on the basis of what was being first reported on 30 July, rather than what had developed subsequently. It said it believed "the story was approached with appropriate caution and careful use of language" and that it was a story of some significance.

The Ministry’s Final Comment

The Ministry of Health reiterated that the programmes failed to make it clear that Lyprinol was not a medicine. It rejected TVNZ’s claim that the reporter had made it clear that the product was a natural product coming from food. That, the Ministry said, did not make the issue clear. The medicines legislation determined that it was the claims which were made about a product which determined whether or not it was a medicine, it pointed out. The Ministry wrote that:

In this instance, the promoters of Lyprinol were making, and TVNZ repeating, therapeutic claims which in the eyes of the law, effectively make Lyprinol a medicine.

The Ministry emphasised that the broadcaster should have made it clear that the product was not a medicine, that it was a dietary supplement, and New Zealand law prevented claims being made that dietary supplements were "cancer cures". The reason TVNZ did not say that, it suggested, was that the reporter did not know it. The broadcaster’s failure to check whether it was permissible to market a product in New Zealand as a cancer treatment without some form of official approval represented, in the Ministry’s view, "a serious failure of both common sense and standards".

Alluding to the 600 scientific papers said to have been published world-wide and supporting Lyprinol’s efficacy, the Ministry reiterated that its experts were unable to find any published papers relating to Lyprinol at all. Its view remained, it said, that TVNZ was repeating an incorrect or misleading claim which better journalism would have clarified. It wrote:

A simple check on the internet would have revealed the lack of publications supporting the claims for Lyprinol and the lack of standing of the medical investigator quoted by TVNZ in the field of cancer research.

The Ministry asserted that there were numerous sources of independent comment available to TVNZ which would quickly be able to provide balance "to the hyperbole involved in TVNZ’s coverage". The broadcaster was aware of the story at least three days in advance of it being broadcast, it wrote, which was plenty of time for a journalist to check out the accuracy of the claims which were being made about Lyprinol.

It also disputed TVNZ’s claim that it was the interviewees who used the terms "excited", "cure or potential cure", "90 per cent chance", and the "winning Lotto analogy". It listed the number of times the expressions were used by reporters and presenters and wrote:

Collectively the language used by TVNZ [represented]…a lack of balance, impartiality and fairness for a very controversial topic – an unproven and unlikely cancer cure. As [a columnist] said: ‘It smacked of PR on a grand scale’.

In conclusion, the Ministry pointed out that a product containing lyprinol extract had been on the local market for 20 years, that nearly all of the commentators used by TVNZ had commercial and funding links with each other, that approval for the clinical trials testing Lyprinol had not been given when the story was first broadcast, and that there were some concerns that lyprinol could in fact be an agent which was a cancer promoter.

The Authority’s Findings

The Authority deals first with the Ministry’s request for the complaints to be considered as having been submitted by it in conjunction with the New Zealand Cancer Society and the New Zealand Medical Association. The Authority notes that both of these organisations endorsed and supported the Ministry’s submissions, but as they were not parties to the original complaint, the Authority determines that it is not appropriate to admit them to that status at this late stage.

The complainant contended that standards G1, G4, G6, G14 and G19 of the Television Code of Broadcasting Practice were breached. In view of the overlap of matters addressed by those standards, the Authority has subsumed the relevant issues under standards G1 and G6 and deals with them under those headings.

Standard G1 – accuracy

The matters raised under this standard include TVNZ’s failure to convey the fact that Lyprinol was a dietary supplement and not a medicine, and secondly, its assertion that 600 scientific papers had been published worldwide supporting Lyprinol’s efficacy.

Dealing first with Lyprinol’s status as a dietary supplement and not a medicine, the Authority notes the Ministry’s point that by law claims of curative properties can only be made in respect of registered medicines. It also observes that as a matter of accuracy it was not expressly claimed on the programme that Lyprinol was a medicine. Claims were made that it had inhibited the growth of cancer cells and that the discovery was a "medical break-through". These issues raise questions of balance which the Authority considers below. It also notes that it is not its task to monitor compliance with the Medicines Act, which places restrictions on claims about therapeutic properties of medicinal products. Insofar as this aspect raises balance issues, it too will be dealt with below.

The next point was that the item was incorrect when it stated:

[Lyprinol’s] a compound which has been researched extensively for 20 years. Over 600 medical papers have been published on it worldwide.

TVNZ responded that there had been a large number of papers published on the New Zealand green-lipped mussel extract in relation to its efficacy in treating asthma and arthritis. It added that its reporter had been shown published medical research linking the lypoxygenase pathway and cancer and had been told by reliable sources in the field of cancer research that 600 papers were extant.

The Ministry reiterated that a simple check of the internet would have revealed the lack of publications supporting the claims for Lyprinol, and the lack of standing by the medical investigator quoted by TVNZ in the field of cancer research.

When the Authority sought further particulars from TVNZ it was provided with a copy of a letter written to the reporter by Dr Henry Betts, senior rheumatology researcher at the hospital who made the discovery that lyprinol killed cancer cells in the laboratory. Regarding the broadcast of the item, he wrote:

There was only one error of fact in the presentation, and that was that over 600 peer-reviewed articles had been published on Lyprinol. This is NOT correct. The 600 papers we had referred to during our interview in Adelaide were papers in the medical and scientific literature that had demonstrated a role for the lipoxygenase pathways in cancer cell growth/survival and metastasis.

The Authority concludes that TVNZ’s report, which stated that Lyprinol had been researched extensively for 20 years and that 600 papers had been published on it was incorrect. It notes that TVNZ’s response clarified the matter when it reported that the reference to the 600 papers was in relation to published research on the lipoxygenase pathway and cancer. The Authority upholds the complaint that the broadcast reference was incorrect and in breach of standard G1.

Next the Authority turns to the Ministry’s complaint that the trailer for the Holmes programme lacked balance when it stated:

On Holmes tonight, a cure for cancer. It could be right here on our shorefront. Green-lipped mussels. They may have the ability to kill cancer cells. Researchers say they’re 90 per cent sure it will work and this could mean enormous profits for New Zealand. We’re going to cross live to a researcher behind the discovery.

The Authority considers that, largely as a result of the presenter’s delivery, this trailer exaggerated the status of the research in its use of the words, "a cure for cancer". It considers this introduction, which provided the framework for the report which followed, was misleading. The Authority prefers to deal with this aspect of the complaint as an accuracy rather than a balance matter, and concludes that standard G1’s requirement for accuracy was breached by the reference to a "cure for cancer".

Standard G6 – balance, fairness and impartiality in dealing with all questions of a controversial nature

The Ministry of Health contended that the items were unbalanced because they failed to:

  • stress the unproven nature of the effect of Lyprinol;
  • refer to the long developmental time needed to test new medicines;
  • clarify that Dr Betts’ research finding was but one of a number of results found by researchers around the world;
  • seek comment from independent commentators such as oncologists, researchers, or an authoritative agency such as the Cancer Society or the Ministry itself;
  • consider how the story would be received by people with cancer; and
  • acknowledge that most of the comment was from people who stood to gain from the marketing of the Lyprinol product.

To these points, TVNZ responded first that it had been made clear that Lyprinol was a natural product extracted from green-lipped mussels which was shipped to Germany for refining into an oil.

As for the absence of independent commentators, TVNZ responded that the emphasis in its initial coverage of the issue had been to get the facts to air as they were known, and that as the story developed, further reaction had been shown. It argued that the medical aspect was only half of this story, the other half being the possible economic benefits of the research findings. It defended the absence of independent expert reaction in the initial reports on the basis that this was a "breaking story" which had focused on the research and its implications for New Zealand. TVNZ concluded that it had complied with the requirement to provide balance because its subsequent programmes over the succeeding days canvassed a range of views.

The Authority turns first to the complaint that the item failed to make clear that Lyprinol’s curative properties were not yet proven. It notes the One Network News item’s introduction, which stated:

Good evening, we have exclusive details of how a shellfish found only in New Zealand could hold the key to a cancer cure.

and continued:

But first, the medical break-through. Researchers have found the lipids from green-lipped mussels have the ability to kill cancer cells. They are about to start human trials in a matter of weeks. Health reporter Lorelei Mason has this world exclusive.

Then, later in the item, reference was made to the economic benefits to mussel growers and it was predicted that mussel farming would "become the number one seafood industry in New Zealand".

As noted above, trailers for the Holmes programme signalled "a cure for cancer" and the introduction to Holmes stated "Australian researchers say there is a 90 per cent chance [green-lipped mussels] will [cure cancer]" and viewers were invited to consider "the enormous commercial possibilities for this country".

The Authority notes that the researchers themselves were more cautious. For example, when Professor Borland was asked by the Holmes presenter about the 90 per cent chance of success in Lyprinol curing cancer, he emphasised that clinical trials still had to be done, and that it would take 6-12 months to indicate whether the researchers were on the right track. Further, when asked whether it was "an absolute cure for everybody", he gave a cautious response, although he did indicate that the indications were "extremely exciting".

In spite of this cautious note, and the inclusion of comments from an independent oncologist and Hon John Luxton, the Authority concludes the emphasis of both items was on the product’s potential to cure cancer. The fact that it had not been clinically trialed was mentioned, but the optimism about its efficacy remained as the principal theme. Further, the Authority notes, speculation about the commercial implications of the product was premised on the assumption that it would effect a cure. In those circumstances, the Authority concludes that, in the items broadcast on 30 July, insufficient emphasis was given to the preliminary nature of the trials and the fact that the product itself was, as yet, unproven. It concludes that the items broadcast on 30 July raised issues which required balance and further comment to redress an other than impartial view.

In so saying, however, it acknowledges TVNZ’s point that the emphasis of the reports was on an event (promising laboratory findings) as opposed to reaction to that event, which would be expected to unfold over time. To that extent then, the Authority concedes that stories in many cases do not stand alone, but form a gradually evolving body of information as long as they remain in the public arena.

Subsequent programmes were said by TVNZ to have provided balance. Accordingly, the Authority sought additional information from TVNZ. As a result, it has viewed additional programmes – specifically, items on One Network News, Holmes, Tonight and Crossfire broadcast on 2 August, items on One Network News and Holmes broadcast on 3 August, and an item on One Network News broadcast on 4 August. In addition, it sought background information which would assist it to establish TVNZ’s understanding of the integrity and reliability of its information sources.

It is true that the broadcaster addressed the questions of accuracy and balance in these subsequent programmes. However, it is evident to the Authority that much of this coverage was needed to counteract the inaccuracies and lack of balance in the initial reporting.

TVNZ’s submissions have emphasised that there was no orchestrated campaign to create a news story to coincide with a product launch. The Authority is unable to reach a conclusion on this point.

But, given the nature of the material being compiled, the Authority considers the broadcaster could have been expected to anticipate the highly emotive response to a story which:

a)  made a major claim for the possible efficacy of a cancer treatment;

b) did so when that treatment was unproven;

c) stated the claim of the likelihood of success without independent validation;

d) presented the story on the eve of a product launch of the unproven possible remedy;

e) incorrectly claimed the existence of a body of scientific literature which supported the
    claim made; and

f) relied on sources who were connected to each other to some degree – financially or
    scientifically – in the project.

 The material was such that in the Authority’s view the need for the programmes to be impartial required close consideration. TVNZ argues, as noted above, that balance was provided in the programmes which followed. In this context, the Authority notes that the debate was picked up in all the media and in subsequent programmes broadcast in the week following. On the Monday following the initial broadcast (2 August) Dr Betts, the principal researcher, a spokesperson from the Ministry of Health, and a representative of the New Zealand Cancer Society were interviewed together on Holmes. Dr Betts expressed regret that the claims for lyprinol had been overstated, and emphasised that the researchers had not claimed that it was effective in curing cancer. What they had announced, he said, was that clinical trials were shortly to begin. He acknowledged that the message received by the New Zealand community was not what had been intended, and noted that people in Australia – where the product was not available in shops – had realised that the research was still of a preliminary nature. The spokesperson from the Ministry of Health questioned whether the media had been manipulated on this issue, and voiced the Ministry’s objection to lyprinol’s being marketed as a cure for cancer when it had not been registered as a medicine in New Zealand. The following day, a spokesperson for the company which marketed the product was interviewed, again with the representative of the Ministry of Health. The company denied that it had engaged in a "cynical marketing ploy" and that its promotion of the product had been misleading. It did acknowledge however, that its website which made claims relating to lyprinol’s efficacy with arthritis, asthma and possibly cancer was problematic and for that reason had been pulled. A One Network News item on 2 August emphasised that the therapy was unproven, while an item on 4 August introduced a scientist from the Malaghan Institute who suggested that lyprinol could possibly promote rather than prevent cancer. On each occasion, the Ministry of Health’s own spokesperson expressed the Ministry’s concern that extravagant claims had been made about an unproven product which was not registered as a medicine and that a vulnerable group of people had been misled into believing that a cure for cancer was at hand.

When it deals with the complaint that the items lacked balance, the Authority takes into account the provision in s.4(1)(d) of the Broadcasting Act 1989 which provides:

s.4 (1) Every broadcaster is responsible for maintaining in its programmes and their
           presentation standards which are consistent with:

The principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

This provision recognises that balance can be achieved over "the period of current interest". The Authority considers that the period of interest extended on into the week which followed the initial screening and concludes here that in the space of 6 or 7 days, viewers would have been given sufficient information about the product, its launch, and its status as a cure for cancer to realise that its efficacy was as yet unproven, and that serious concerns had been raised about the timing of the launch and the availability of the product in New Zealand.

As a result of those further broadcasts, the Authority is satisfied there was sufficient balancing material for the broadcasts to comply with the balance provision.

Next, the Authority turns to the complaint that the discovery itself was not put into a scientific context, in that it was not made clear that the trials had yet to begin, that it would take some time to do the testing, and that this research was but one of a number of projects occurring in hospitals and universities around the world. In addition, the complainant contended that comment should have been sought from independent commentators, and noted that in its view those who had been interviewed were those who stood to gain commercially from the discovery.

The Authority questions the adequacy of the independent expert commentary in the programmes broadcast on 30 July, but concludes that any deficiency was cured by subsequent programmes within the period of interest.

The Authority next considers the complaint that the items’ failure to acknowledge the commercial interest of those interviewed contributed to their lack of balance, and to a lack of objectivity and fairness.

As noted above, it has been suggested to the Authority that many of those interviewed on the programme were those who stood to gain commercially from the marketing of the product. While it makes no finding on this point, the Authority considers it was important that the product’s viability be independently assessed and commented upon. As the complainant notes, there were a number of possible authorities – including the Ministry itself – which could have been consulted for comment on the first programme. However, the Authority concludes, any shortcoming in that respect was addressed in the following week when the correct circumstances were explained.

The Ministry also contended that the items showed a lack of objectivity and fairness in a number of specific respects:

  • they were introduced as being a "world exclusive";
  • the language was emotive ("exciting", "cure", "potential cure", "90 per cent cure", and the Lotto analogy);
  • the claim that there was a 90 per cent chance of success was not attributed to anyone; and
  • that most of the comment was from people who stood to gain from marketing the product.

TVNZ’s response emphasised that, in its view, the language had been deliberately cautious, noting that the word "excited" and its derivatives had been used mainly by the interviewees. However, it argued, it was not wrong for it to indicate that those close to the work were excited by it, particularly as, balancing that, it had been made clear that the research was far from complete.

In denying that the items claimed that the researcher had discovered a cure for cancer, TVNZ wrote:

The emphasis throughout was on the possibility that a cure might emerge from this research and the link that potential cure had to a unique New Zealand shellfish.

The claim of a 90 per cent chance of success was, TVNZ noted, "attributed to scientific sources". When it was put to Professor Borland, he had been appropriately cautious, it continued, and his reaction to the "excited" scientific sources ensured the figure was placed in the correct context. Further, it argued, the Lotto analogy balanced the 90 per cent figure in that it suggested a smaller chance of success.

The Authority has referred to transcripts of the items, and is reinforced in its conclusion reached after viewing them that they conveyed the impression that a "medical break-through" had resulted in a potential cure for cancer, and that TVNZ had been invited to give the "world exclusive" report. On the basis of the scientific research completed at that time, the Authority’s view is that such optimism was not justified and that the language used in the trailers, the introductions and in questions put to the researchers, exaggerated the scientists’ more cautious claims.

Viewed on their own, the programmes put to air on 30 July cause the Authority concern. In that respect, it has considerable sympathy with the criticisms which the Ministry makes. But again it is persuaded that these were matters which were capable of cure by appropriate context and questioning in the programmes which followed. In particular, it considers those subsequent programmes, in various ways, challenged the issue of commercial interest and overstated claims earlier made. In the Authority’s view, a significant effort was made to put matters into perspective, and overall it concludes the earlier shortcomings relating to lack of balance were thereby overcome.

Conclusion

The Authority concludes that the One Network News and the Holmes items put to air on 30 July breached standard G1 (accuracy) and raised issues requiring balance in terms of standard G6 of the Television Code of Broadcasting Practice.

It accepts that the possibility of a product exclusive to New Zealand providing a cure for cancer was a significant news story. The ramifications of the discovery were exciting and far-reaching both for cancer sufferers and for those who hoped to reap the benefits of mussel farming. For that reason, the Authority considers it was incumbent upon the broadcaster to convey the news both accurately and in a balanced manner.

The accuracy breaches – the claim that 600 papers had been written about lyprinol in this context, and the claim made in the trailer for the Holmes item about a cure for cancer – are upheld as breaches of standard G1 for the reasons outlined.

The situation is different in relation to the balance breaches. Because of the Act’s provision that balance can be achieved "within the period of current interest", the deficiencies of the 30 July items were remedied, the Authority concludes, by the subsequent broadcasts. In reaching its decision on this aspect, the Authority again emphasises the particular context: this was a breaking story, it evolved over a period of time, and subsequent broadcasts provided the balancing perspective lacking in the original items. For these reasons, it declines to uphold the complaint that the 30 July items were unbalanced.

 

For the reasons set forth above, the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of items on TV One on One Network News and Holmes on 30 July at 6.00pm and 7.00pm respectively breached standard G1 of the Television Code of Broadcasting Practice.

It declines to uphold any other aspect of the complaints.

Having upheld a complaint, the Authority may impose orders under s.13 and s.16 of the Broadcasting Act. It makes no order on this occasion given that the deficiencies of the broadcasts on 30 July were for the most part addressed in subsequent broadcasts.

Signed for and on behalf of the Authority

 

Sam Maling
Chairperson
2 March 2000

Appendix

The following correspondence was received and considered when the Authority determined this complaint:

1.    Ministry of Health’s Complaint to Television New Zealand Ltd – 25 August 1999
2.    Letter from TVNZ to the Ministry of Health – 27 August 1999
3.    Letter from Ministry of Health to TVNZ – 9 September 1999
4.    Letter from TVNZ to the Ministry of Health – 13 September 1999
5.    Letter from Ministry of Health to the Broadcasting Standards Authority, 
       with attachments – 29 September 1999
6.    Letter from TVNZ to the Authority – 4 October 1999
7.    TVNZ’s Response to the Formal Complaint – 6 October 1999
8.    TVNZ’s Response to the Authority – 21 October 1999
9.     Ministry of Health’s Final Comment – 11 November 1999
10.   Letter from Ministry of Health to the Authority, with attachments – 26 November 1999
11.   TVNZ’s Response to the Ministry’s Final Comment – 29 November 1999
12.   Letter from New Zealand Medical Association to the Authority – 1 December 1999
13.   Letter from The Cancer Society of New Zealand Incorporated – 2 December 1999
14.   The Authority’s Letter to TVNZ – 7 December 1999
15.   TVNZ’s Letter to the Authority – 9 December 1999
16.   TVNZ to the Authority – 13 December 1999
17.    Ministry of Health to the Authority – 15 December 1999
18.   TVNZ to the Authority – 20 December 1999
19.   TVNZ to the Authority – 14 January 2000
20.   Ministry of Health to the Authority – 18 January 2000
21.   TVNZ to the Authority – 25 January 2000
22.  TVNZ to the Authority – 27 January 2000