BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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CanWest TVWorks Ltd became TVWorks Ltd on 15 June 2007. Because the programme complained about was broadcast prior to this date, the broadcaster is still named as CanWest TVWorks Ltd (CanWest) except for the purpose of orders.

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Table of Contents

SectionParagraph numbers Broadcast 1-7 Complaint 8-20 Standards 21 Broadcaster's Response to the Complainant 22-32 Referral to the Authority 33-45 Broadcaster's Interim Response to the Authority 46-48 Complainant's Response to the Broadcaster’s Interim Submission 49-53 Broadcaster's Response on the Complaint's Submissions 54-59 Broadcaster's Response on the Substantive Complaint 60-70 Further Submissions from Complainant 71-78 Further Submissions from Broadcaster 79-82 Submissions from Programme Makers 83-90 Complainant's Final Comment 91-99 Authority's Determination 100-155 Submissions on Orders 156-160 Decision on Orders 161-169 Appendix – Correspondence 161-169

Headnote

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Let Us Spray – investigation into the effects of the chemical 2,4,5-T in New Zealand – interviewed residents of Paritutu who believed that various illnesses and birth defects in their families were a result of exposure to the chemical – outlined the historical and present day action taken by the Ministry of Health in relation to the people of Paritutu – discussed a serum study which measured the amount of dioxin in their systems v alleged that the study was significantly flawed and down-played level of dioxin exposure – programme allegedly unbalanced, inaccurate and unfair

Findings

Standard 4 (balance) – broadcaster did not make reasonable efforts to present significant perspectives on the criticisms of the serum study – upheld

Standard 6 (fairness) – failure to present significant perspectives led to unfairness to ESR – upheld

Standard 5 (accuracy) – did not misrepresent Mr Leonard's qualifications – not upheld – all other aspects subsumed into consideration of Standards 4 and 6

Order

Section 13(1)(a) – broadcast statement
Section 16(1) – costs to the complainant $11,250

This headnote does not form part of the decision.

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Broadcast

[1]  A TV3 Special Investigation entitled Let Us Spray was broadcast on Monday 23 October 2006¹ at 7.30pm on TV3. The presenter/reporter introduced the programme as being the result of a year-long investigation into the chemical 2,4,5-T, and said:

For decades, the herbicides 2,4,5-T and 2,4-D were made in New Plymouth and sprayed all over New Zealand, and for decades many New Zealanders have blamed the dioxin contained in these chemicals for deaths, illnesses and birth defects. Successive government reports have said there’s not enough evidence to make a direct link, but that hasn’t washed with many people, especially those who lived near the Ivon Watkins Dow manufacturing plant. They have talked of a cover-up, one of the biggest cover-ups in New Zealand history.

[2]  The reporter conducted interviews with several Paritutu residents and their extended families, all of whom believed that their various illnesses and birth defects were a result of exposure to 2,4,5-T or 2,4-D. An "advocate for people who believe they've been poisoned by the Ivon Watkins Dow plant", Andrew Gordon-Gibbs, gave his view that the people of Paritutu simply wanted "healthcare and recognition" which, he said, "would probably cost less than what our government spent covering it up over the years".

[3]  The item stated that in February 2004, blood serum tests of Paritutu residents were taken, and in March 2005 the Ministry of Health (MOH) released "what would be the full and final report" showing that Paritutu residents on average had four times the dioxin levels of other New Zealanders. The reporter stated that the New Plymouth dioxin group believed that the serum study was "seriously flawed", so the programme had hired an "independent expert", forensic accountant John Leonard, to see if the concerns were warranted. Mr Leonard stated that he believed that they were, and the reporter said:

In brief, John Leonard found that there were participants in the wrong group, different data sets merged, a potential omission of a key participant and lack of certainty because of the reduced sample size.

[4]  Mr Leonard said that he was concerned about the accuracy of the report, and that he did not think that the residents of Paritutu had been well served by the study. He said:

My recommendation would be that somebody totally independent look at this. The data is there – why not let somebody else look at it? If it’s accurate then, fine, I’m wrong. But if it’s not accurate then we will find out the correct position.

[5]  The reporter interviewed Dr Mark Jacobs from MOH and conveyed Mr Leonard’s concerns about the study. Dr Jacobs said that if there were issues around the study then MOH would like to know about them, and the item included the following exchange:

Reporter:      [Mr Leonard's] recommendations are that the serum study is reviewed with the                     raw data by an independent…by a statistician, preferably someone
                    off-shore. Will you agree to this?                    

Dr Jacobs:    Well, certainly, in fact we’ve already had the study and its methodology and
                    its findings reviewed by a number of independent experts off-shore...

Reporter:      Did they have Appendix O? Did they have the raw data?

Dr Jacobs:    I think they got all of it, yes.

Reporter:      Well, I’ve asked them and they didn’t. They didn’t have Appendix O, which has
                    got the anonymous serum results in it.

[6]  The reporter put to Dr Jacobs that there were issues with the data, and she noted that MOH had not released Appendix O under Official Information Act requests. Dr Jacobs stated that the document would be released if the Ombudsman and the Privacy Commissioner indicated that there were no privacy concerns.

[7]  The reporter asked Dr Jacobs whether he understood "why people think this has been one heck of a cover-up when it comes to dioxin, Paritutu, 2,4,5-T, Ivon Watkins Dow", and he stated that he could understand the concern that there had been delays and studies with inconclusive results.

Complaint

[8]  The Institute of Environmental Science and Research Ltd (ESR) made a formal complaint about Let Us Spray to CanWest TVWorks Ltd, the broadcaster, alleging that it was unbalanced, inaccurate and unfair. It noted the programme’s reference to a 2005 serum study by ESR that had been commissioned by the Ministry of Health. The ESR report, it said, had been described in the programme as being "significantly flawed" and as misrepresenting the exposure to dioxin of people living in the community.

[9]  By way of background information, ESR stated that it was an independent Crown entity contracted to undertake scientific studies for a range of government clients, including the Paritutu Study. The single objective of the study was to "assess only the potential exposures to dioxin in the community through measuring blood levels of dioxin". ESR wrote:

All stages of the study, from design, methodology, results through to final report, were peer-reviewed to the highest international standards. Ethical considerations were given the highest priority.

[10]  The complainant gave details of the four original peer-reviewers who were, it said, leaders in their field.

[11]  Referring to the "independent expert" commissioned by the broadcaster, ESR contended that Mr Leonard lacked knowledge and understanding of scientific processes. In the complainant’s view, Mr Leonard did not have the professional scientific knowledge to make "appropriate, relevant, accurate, and informed comments" on the ESR report.

[12]  Based on Mr Leonard’s review, the complainant said, the programme described the ESR report as "seriously flawed", with the data wrongly interpreted, and the level of dioxin exposure down-played. It added:

These are extremely serious criticisms of ESR, the authors of the ESR report and those that peer-reviewed the ESR report, particularly when based solely on the view of a forensic accountant. They are tantamount to allegations of gross incompetence, bias, partiality, and lack of objectivity and independence. The overall inference was that the ESR report was just part of the cover-up. It is difficult to think of more serious or destructive allegations which could be made about a scientific organisation such as ESR.

[13]  Despite these criticisms, ESR noted that CanWest had not contacted ESR prior to, or after, the broadcast. It contended that the broadcaster must have known that the issues raised by Mr Leonard were contentious, "particularly given his complete lack of experience in the area". ESR said that it should have been apparent to CanWest that some, if not all, of Mr Leonard’s assertions would be disputed.

[14]  ESR maintained that Mr Leonard’s criticisms in his role as "independent expert" were an integral part of the programme and its thesis that there had been a cover-up. In these circumstances, it wrote, CanWest was under an "absolute obligation to provide ESR with an opportunity to consider and comment" on his criticisms and to include ESR’s comment in the programme.

[15]  The complainant contended that viewers should have been made aware that Mr Leonard did not have any science or biostatistics qualifications, in order to assess the validity of his criticisms. Equally, it said, viewers should have been told that the ESR’s three-year study and report was at all stages subject to "the most robust scientific scrutiny and peer review by qualified and respected international experts in the scientific field".

[16]  In ESR's view, CanWest should have had Mr Leonard’s criticisms independently reviewed by a suitably qualified third party. It contended that if ESR or the peer-reviewers had been given an opportunity to comment on Mr Leonard’s report, his lack of qualifications and expertise would have been exposed. This, ESR said, would have also exposed the "fallacy of the programme’s contention that the ESR report was seriously flawed and therefore by inference ESR itself was somehow involved in a grand conspiracy or cover-up".

[17]  The complainant noted that the General Manager of Environmental Health at ESR, Dr Fiona Thomson-Carter, was interviewed on camera for approximately half an hour, along with Dr Mark Jacobs, by 3 News on 24 October 2006, the day after Let Us Spray screened. She had responded in detail to Mr Leonard’s report and criticisms of ESR, it noted. However, the news item broadcast that night did not include any of this interview; in fact, it incorrectly attributed Dr Thomson-Carter’s name to a woman who claimed her family had been poisoned by dioxin.

[18]  In summary, ESR said that despite the controversial issues covered in the programme, CanWest had made no efforts to provide ESR with an opportunity to present its significant point of view in response to the criticisms made. CanWest, it said, had failed to obtain or include views or facts which it knew would run counter to the thrust of its story. Even when a contrary view was obtained, ESR noted, CanWest had failed to include it in subsequent broadcasts. As a result, it contended, the programme lacked balance and impartiality.

[19]  The complainant maintained that ESR and the report were an integral part of the programme, and serious criticisms had been made about the report, its authors, peer reviewers, and ESR itself. CanWest had failed to treat each of these people or organisations justly and fairly, it wrote.

[20]  ESR was of the view that the criticisms of the ESR report were "totally inaccurate", and the broadcast lacked editorial independence and integrity. It argued that the broadcaster had failed to ensure that Mr Leonard was a reliable source to provide expert comment on the ESR report.

Standards

[21]  CanWest assessed the complaint under Standards 4, 5 and 6 and guideline 4c of the Free-to-Air Television Code of Broadcasting Practice. They provide:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards 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.

Guideline 4c

Factual programmes, and programmes shown which approach a topic from a particular or personal perspective (for example, authorial documentaries and those shown on access television,) may not be required to observe to the letter the requirements of standard 4.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[22]  CanWest stated that the introduction to the documentary had made it clear that the programme was approaching the issue from the viewpoint of those people who believed that they suffered from exposure to 2,4,5-T, 2,4-D and dioxin. The reporter had said "their views, and their personal struggles, are at the heart of this story". Essentially, the broadcaster asserted, the documentary fitted within the framework envisaged by guideline 4c because it clearly identified the focus of the programme.

[23]  Against that background, CanWest considered that the programme had included sufficient material to inform viewers that there were significant points of view contrary to those expressed by those "at the heart of the story". It had also included enough information so that viewers would understand, in broad terms, the nature of those contrary views.

[24]  Referring to ESR’s complaint that its views were not sought, CanWest said that it had asked the documentary makers to comment on this issue. They had taken the view that the Ministry of Health was "clearly the party responsible for comment on the Paritutu blood serum study" because:

• MOH had commissioned the report, and had promoted and publicly presented it.
• MOH documents stated that after round one of the serum tests, in August 2004, the dioxin issue had gained greater "political significance", and as a result MOH would be in charge of communications and the “strategy/presentation” of the Paritutu blood serum report.
• When various MPs had addressed questions in the House about the blood serum study to the relevant Minister, that Minister was the Hon Pete Hodgson, Minister of Heath.
• In a draft letter obtained by the documentary makers, ESR had stated: "ESR conducted this study on behalf of the Ministry of Health who thus own the data" and "As a consequence of this all requests for individual data must be made to the Ministry of Health directly".

[25]  During negotiations with MOH for an interview, the documentary makers stated that it was clear that MOH accepted it would be the official body responding to any allegations. An email from a senior advisor at MOH had stated that "we agree you won’t also need to interview Labour and Environment officials".

[26]  In the broadcaster's view, MOH had clearly assumed responsibility for commenting on the ESR report for the programme and, in those circumstances, CanWest did not consider it a breach of Standard 4 (balance) to seek comment only from MOH. It also found that MOH had sufficient notice of the subject matter and sufficient opportunity to present its point of view which necessarily represented the ESR point of view.

[27]  CanWest maintained that viewers would have understood that MOH and ESR did not accept the viewpoints expressed by the individuals interviewed for the programme. It found that the balance standard was not breached.

[28]  Turning to Standard 5 (accuracy), the broadcaster stated that ESR had not provided any details of the inaccuracies it alleged had occurred as a result of using John Leonard to analyse the serum studies. It noted that Mr Leonard was a forensic accountant who was experienced and skilled in reviewing calculations of the nature that were being examined in the programme. CanWest considered that it was reasonable for the programme to seek advice from someone with his expertise. It found that no inaccuracies arose as a result of Mr Leonard’s contribution to the programme.

[29]  With respect to Standard 6 (fairness), CanWest contended that many of ESR’s concerns had been addressed as an aspect of Standard 4 (balance). It was not unfair to seek comment from MOH in relation to the study, it said. As for an allegation of a cover-up, CanWest stated that this was the opinion of many of the programme’s participants and it had been presented as such. The programme, it wrote, had also presented some of the evidence supporting their view.

[30]  CanWest said the documentary makers had commented that there was an MOH memorandum describing one 2,4,5-T test as a "public relations exercise" which would be carried out even though the chemical would "not be found after such a time". Further, MOH’s unwillingness to provide CanWest with Appendix O to the serum studies "may be indicative of a cover-up". MOH’s concerns about ethical considerations seemed to be without logical foundation, it added, because the Ethics Committee had no such concerns.

[31]  The broadcaster maintained that there had been no unfair criticism of the peer review panel as suggested in ESR's letter. The programme had pointed out that they had not been given the base data or the ability to check that it had been extrapolated accurately. This had been specifically put to Dr Jacobs in his interview, the broadcaster noted.

[32]  CanWest concluded that the item was not unfair in the manner suggested by ESR. It declined to uphold the complaint.

Referral to the Authority

[33]  Dissatisfied with CanWest’s decision, ESR referred its complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989.

[34]  Looking first at Standard 4 (balance), ESR disagreed with CanWest's assertion that the programme fitted within guideline 4c. The programme and subsequent broadcasts, it said, went well beyond the "personal struggles" of those who believed they had suffered from dioxin exposure. It had purported to be a detailed analysis of recent events and had addressed a number of controversial issues of public importance. As such, the complainant said, Standard 4 applied without limitation.

[35]  ESR reiterated its concerns that CanWest had not given it an opportunity to respond to the serious criticisms made about the organisation and the ESR report. ESR wrote:

...there was grossly insufficient material to inform viewers that there were significant points of view contrary to those expressed, particularly in respect of the ESR report.

...All that was presented to the viewers was Mr Leonard’s serious criticisms and the various descriptions of the report as being "flawed" or "seriously flawed", such descriptions being based entirely on Mr Leonard’s criticisms.

[36]  The complainant then referred to CanWest’s explanation that it had not sought ESR’s view because MOH had assumed responsibility for commenting on the report. It contended that the allegations against and criticisms of ESR were of such a serious nature, being a direct challenge to ESR’s scientific knowledge and skill, integrity and objectivity, that CanWest was obliged to seek a response directly from ESR.

[37]  In addition, it wrote, CanWest's response failed to refer to the fact that, two weeks prior to the broadcast, it had interviewed Dr Mark Jacobs from the MOH and he had explained to the broadcaster that because the criticisms of the ESR report were so serious they should be put to ESR. MOH had asked ESR to answer a list of questions as a result of the interview, and this information was provided to CanWest prior to the broadcast. MOH had also provided the contact details for the key author of the report and the Project Director, ESR said.

[38]  ESR contended that CanWest should be required to advise the Authority as to what steps it had taken to contact those people or indeed any of those who peer-reviewed the ESR report. It maintained that there was nothing in the programme to indicate to viewers that ESR rejected Mr Leonard’s comments.

[39]  Turning to Standard 5 (accuracy), the complainant noted that CanWest had not explained why it had selected a forensic accountant to critically analyse the ESR report. Subsequent to the broadcast, ESR stated that it had requested that Mr Leonard’s criticisms be reviewed by two independent reviewers² who were asked to assess:

• Does the Paritutu Study 2006 Report fulfil its objective? (i.e. to assess "the potential exposures to dioxins in the community through measuring blood levels of dioxin")
• Do the comments made by Mr Leonard affect the findings and the recommendations of the Paritutu Study 2005 Report?

[40]  A third reviewer (Dr Marie Sweeney), nominated by the World Health Organisation, had also been engaged by MOH to review the Paritutu Study 2005 report, ESR wrote.

[41]   ESR stated that all three reviews had upheld the integrity and robustness of the ESR report and had effectively rejected Mr Leonard’s criticisms. It enclosed a copy of the relevant media release for the Authority’s information, and said that it could make copies of the three reports available if requested.

[42]  Noting CanWest's argument that it was reasonable to seek advice about "calculations" from someone with Mr Leonard’s expertise, ESR reiterated its view that Mr Leonard was not qualified to analyse such a highly specialised scientific study. It contended that CanWest sought to down-play the role he played. Mr Leonard was described in the programme as an "independent expert" who concluded that the concerns about the serum study were valid. Based on his concerns, ESR noted, the report was described as being "seriously flawed".

[43]  ESR maintained that CanWest's conclusion that no inaccuracies had resulted in the programme from Mr Leonard’s contribution was plainly wrong. The statement in the item that the ESR report was “seriously flawed” was grossly inaccurate, it said, and if CanWest had sought comment from ESR at the outset this would have been readily apparent. The inaccuracy was hugely damaging to ESR and to the scientists involved with the report, the complainant wrote, all of whom were well known and readily identifiable within both the New Zealand and international scientific community.

[44]  Looking at the Standard 6 (fairness) complaint, ESR noted CanWest’s reference to the fact that the peer review panel had not been given the base data or the ability to check that it had been extrapolated accurately. What the broadcaster had failed to understand, it argued, was that, in line with international scientific best practice, the original study by ESR – including its design, conduct, methodology, preliminary and final drafts – was extensively peer reviewed by four international experts. CanWest was aware of this, it added, and knew how to contact at least some of the reviewers. Further, in line with standard scientific practice the peer reviewers were not provided with the raw individual data, and none of the reviewers had requested the data to complete their peer review.

[45]  ESR noted that the three subsequent reviewers, following the Let Us Spray programme, had been provided with all appendices including Appendix O.

Broadcaster’s Interim Response to the Authority

[46]  Prior to providing its submissions on the substantive referral, CanWest wrote to the Authority questioning whether ESR’s complaint should continue, or at least in its current form. It contended that MOH had now accepted the accuracy of the essential criticism of the serum study contained in the programme. As the broadcaster understood the position, the head of the serum study had reviewed his report in light of the concerns expressed in the programme. He had recalculated the conclusions reached, and acknowledged that the people who participated in the study were exposed to peak levels of dioxin as early as the 1960s.

[47]  In CanWest’s view, this information had serious implications as it meant that those people had been exposed to much higher levels of dioxin than had previously been acknowledged by any government agency.

[48]  The broadcaster contended that MOH (on behalf of all government agencies including ESR) had commissioned a firm called Allen and Clarke to review the serum study, and this report was not due until after October 2007. It suggested that it would be reasonable to ask the complainant to reformulate its complaint, or to await the outcome of the commissioned report before proceeding.

Complainant’s Response to the Broadcaster’s Interim Submission

[49]  ESR maintained that the information released by MOH had no substantive relation to its referral to the Authority. That information, it wrote, related to new analysis of data (both data collected by ESR and international data). The Allen and Clarke report would be looking at possible inclusion criteria for eligibility for health services, it said, which was quite a different issue from that which ESR was required to investigate.

[50]   The complainant reiterated that the ESR study had one primary objective – to assess only the potential exposures to dioxins in the community through measuring blood levels of dioxin. The report did not include an assessment of possible health effects related to dioxin. ESR wrote:

The fact that a further study has been undertaken to answer additional and different questions has no bearing whatsoever on the critical reporting of the study by TV3.

[51]  Referring to CanWest’s contention that Allen and Clarke had been commissioned to "review the serum study and report back", ESR contended that this was "categorically and demonstrably incorrect". In fact, it said, the correct position was available on the MOH website which said:

The Ministry of Health has commissioned Allen & Clarke to undertake the design of, and consultation on, a health support programme for groups exposed to dioxins. ... At the time of the release of the serum survey results, the Ministry of Health undertook to address health needs for those residentially exposed to dioxin at Paritutu. ... Allen & Clarke Policy and Regulatory Specialists Limited is the provider selected for this project. Allen & Clarke will develop and consult on options for a health support service for residents and former residents who may have been significantly exposed to dioxin from the Ivon Watkins Dow plant in New Plymouth between 1962 and 1987, and on the provision of health information and advice to medical practitioners and other health professionals supporting exposed persons.

[52]  ESR said that CanWest’s response demonstrated that it failed to understand the objectives of the serum study and, specifically, what it excluded. As stated in the final ESR report: "A statistically significant elevation in serum TCDD [dioxin] compared to national TCDD serum concentrations was found in the combined study group of 52 participants". The complainant referred to a section of the report which said that several questions "remained unanswered by the study", including:

• The temporal variation in exposures during the period 1962 to 1987
• The potential health impact in people significantly exposed.

[53]  The complainant maintained that nothing had changed from its original referral to the Authority, and it was not necessary to wait for the outcome of the Allen and Clarke report. It included a press release from the Minister of Health, the Hon Pete Hodgson from 24 January 2007 in which he released three reviews of the serum study which concluded that it was fit for purpose and its conclusions were valid.

Broadcaster’s Response to the Complainant’s Submissions

[54]  CanWest provided a response from the Let Us Spray reporter which addressed ESR’s latest response. The reporter wrote that ESR had wrongly suggested that it had confused Allen and Clarke’s brief with the purpose of the ESR serum report. She contended that the admission about peak exposures had a huge effect on the levels of exposure in Paritutu and ESR and MOH would "clearly have to revisit and readjust the serum study findings of 2005". The reporter noted that the Allen and Clarke document said:

The technical group agreed that it was likely that variations in the intensity of exposure occurred and, based on available evidence, it is likely that exposure was more intense for a period in the mid to late 1960s than for any other period. The available evidence included:

• Further and ongoing analysis of the serum dioxin study results which suggests exposure was most significant in the years 1965 to 1968.
• Data on the volume of 2,4,5-T produced at the Ivon Watkins Dow plant and the concentration of dioxin within this 2,4,5-T that suggests that potential exposure to TCDD was greatest for the years 1962 to 1972.

[55]  In other words, the reporter said, following a reanalysis of the data the technical advisory group had determined the likely peak exposure was from 1965 to 1968. She contended that ESR did not understand the implications of the recent admission, adding:

...it has a profound effect on the issues central to the Let Us Spray programme, it confirms Leonard’s report findings and it is crucial to the ESR complaint.

[56]  The reporter maintained that the ESR report was "flawed" because the data was not correctly used, and this led to the serum study missing the peak exposure period. She noted that dioxin has a half life in the body, and for this reason exposure levels back-calculated to the 1960s were many times higher than the levels found in the report, which were back-calculated only to 1987.

[57]  The reporter provided tender documents for the study which said that the purpose of the study was to "collect and analyse samples of blood serum from selected past and current residents of Paritutu to ascertain possible exposure to dioxins...in particular, this is to assess the levels of dioxin...in the blood serum of a group of Paritutu residents living in close proximity to the Ivon Watkins Dow factory at peak emission times, and therefore most likely to have been highly exposed".

[58]  In the reporter’s view, a key requirement of the serum testing was to target those most likely to have been highly exposed. What the serum study did, however, was to target those least likely to be exposed – residents who lived in Paritutu after 1973. This was confirmed by the results in March 2005, the reporter said, and had a major bearing on the final outcome.

[59]  CanWest enclosed a bundle of documents including the corrected raw data collected from the Dioxin Investigation Network. It noted that after this raw data had been presented to the principal author of the serum study, he had been forced to change his position on the peak exposure period.

Broadcaster’s Response on the Substantive Complaint

Standard 4 (balance)

[60]  CanWest stated that it did not contend Standard 4 had no application to the programme. However, it did argue that guideline 4c applied, as the programme considered a controversial issue from a particular perspective. This meant that the programme did not require the same degree of coverage of other significant perspectives as might have been the case in other current affairs programmes.

[61]  The broadcaster contended that the questions for the Authority were whether a viewer, watching the programme for the first time, understood:

1. that there were other significant points of view on the controversial issue
2. broadly the essence of the other significant points of view.

[62]  In framing the controversial issue of public importance, CanWest stated that it was important that the Authority recognised that the issue under discussion was not the historical use of dioxin in New Zealand. The issue, it said, was "whether the authorities' response to concerns expressed by residents and others about the possible negative health impacts was adequate".

[63]  The broadcaster contended that viewers "could not help but be aware" that MOH (on behalf of all government agencies involved) did not accept that the adverse health impacts suffered by the interviewees were caused by dioxin exposure, and did not accept that the government response had been anything less than adequate and appropriate.

[64]  With respect to the involvement of ESR in the programme, CanWest maintained that this was primarily an issue of fairness. It contended that the programme met the test formulated in paragraph [61] above, and it was not critical who presented the essence of other significant points of view. It wrote:

As long as the audience can appreciate who holds those points of view and what, in general terms, the significant viewpoints are, balance is achieved.

[65]  Looking at John Leonard's evidence, the broadcaster remained adamant that the "overwhelming weight of evidence is that the serum study was flawed". As such, it said, the requirement for balancing statements was "much reduced".

Standard 5 (accuracy)

[66]  CanWest maintained that the only inaccuracy specified in the complaint was the allegation that the serum study contained serious flaws. It remained satisfied that the study was indeed flawed, and it appeared that MOH had begun acknowledging and rectifying those flaws.

Standard 6 (fairness)

[67]  The principle issue of fairness, CanWest wrote, was whether or not the programme should have interviewed ESR about the serum study. Having read the evidence that MOH was "running, controlling and driving the serum study", it concluded that the programme was not unfair to ESR.

[68]  The broadcaster noted that reporters or producers always had to make a decision about who to interview to represent a particular point of view. In this case, it said, they had chosen the government agency which "owned" and managed the media presentation of the study.

Documentary team response

[69]  CanWest provided detailed responses from the Let Us Spray documentary team. The team emphasised that the latest review of the study, by Allen and Clarke, had identified a peak exposure period from 1965 to 1968, which confirmed Mr Leonard's findings. The team therefore maintained that the ESR report was flawed, and disagreed with ESR's view that the serum study was not concerned with peak exposure, though it understood that the study did not include any assessment of possible health effects.

[70]  The programme makers also rejected the argument that Dr Jeff Fowles, the lead author of the serum study, had now discovered a peak exposure period due to new analysis and international data. The information came about when MOH and Dr Fowles were confronted with the corrected raw data, they said, and the author was forced to change his position. They had evidence that ESR would have been aware as early as March 2005 that there was in fact temporal variation in exposure, i.e. a peak exposure period.

Further Submissions from Complainant

[71]  The complainant noted that CanWest had referred to reports and other material which post-dated the broadcast by many months, and considered they were irrelevant. It was not the Authority’s role to be an arbiter in some highly scientific and complex debate, ESR said, but to determine whether the programme breached broadcasting standards.

[72]  ESR emphasised that its complaint primarily related to the serious criticisms of its study and the study’s authors, ESR and the peer reviewers. ESR pointed out that the serum study had undergone six independent reviews by world-acknowledged experts – three before the programme and three after – and they all concluded that Mr Leonard’s criticisms did not invalidate the study. Each reviewer endorsed the study, ESR said.

[73]  The complainant attached a response to Mr Leonard from the principal author of the serum study, Dr Jeff Fowles. This was the response TV3 would have received if it had approached ESR before the programme and asked for comment in order to achieve balance, it said, and that would have exposed how unqualified Mr Leonard was in criticising such a specialised scientific study. ESR refuted CanWest’s contention that Dr Fowles had accepted Mr Leonard’s criticisms.

[74]  With regard to balance, ESR maintained that CanWest made no effort to provide balance for the criticisms made about the study. CanWest claimed there was sufficient material included for viewers to understand the contrary views. However, ESR argued, there was nothing in the programme that indicated that ESR did not accept the viewpoints expressed by the interviewees or that it rejected Leonard’s view.

[75]  In response to CanWest’s reasons for interviewing MOH rather than ESR, the complainant argued that the allegations about ESR were quite specific: that it was part of a cover-up and its study was flawed. The broadcaster could not delegate its responsibility under the balance standard to a third party, the complainant said. CanWest could not rely on MOH to fulfil its obligation; it was obliged to seek ESR’s response. Further, the broadcaster was wrong to suggest that the onus was on Dr Jacobs to go to ESR; TV3 was obliged to put the allegations directly to ESR.

[76]  ESR noted that, five days before the programme, MOH had provided CanWest with an extensive response from ESR to a number of issues raised in the interview with Dr Jacobs, including Appendix O. None of this information was included in the programme. It was standard for programmes such as 60 Minutes to "pre-announce or back-announce", ESR said, or a crawl could have been used during the programme setting out ESR’s response. It rejected CanWest’s contention that ESR’s perspective was "comparatively well-known". It also denied that ESR knew of Mr Leonard’s criticisms 12 months before the programme.

[77]  ESR considered TV3 had had at least three opportunities to provide balance to Mr Leonard’s criticisms. First, the programme makers could have approached ESR or the study authors or reviewers in the year they spent preparing the programme. Second, TV3 could have utilised the detailed response from ESR provided by MOH on 19 October 2006. Third, TV3 interviewed ESR’s Dr Fiona Thomson-Carter the day after the programme and did not include any of the interview or ESR's response in the news item aired that night.

[78]  The complainant concluded by saying it agreed that the Authority should not curtail brave, carefully researched journalism, but disagreed that this programme was carefully researched as ESR’s point of view was neither sought nor included.

Further Submissions from Broadcaster

[79]  CanWest maintained that the programme fitted under guideline 4c to the balance standard, because the introduction made it clear that the topic was approached from a particular perspective, and this was reinforced by the emphasis on the stories of the interviewees. Standard 4, it said, was about the rights of viewers, and whether a first time viewer new to the subject would have understood the relevant significant points of view on the topic discussed. It reiterated that the issue discussed was whether government authorities’ response to Paritutu’s concerns about possible negative health effects was adequate.

[80]  With regard to that issue, the significant perspectives were that of the residents, and of the government to whom the residents expressed their concerns. The residents’ concerns were put to Dr Jacobs, and his response clearly set out the government perspective, which was that if more information came to light they would revisit the issue. Viewers would have understood that perspective as it was given significance in the programme, the broadcaster said. CanWest reiterated its contention that Dr Jacobs on behalf of MOH was the right person to express the government’s position, and it was not necessary to present separately ESR’s perspective.

[81]  The broadcaster concluded that more than sufficient material was included in the programme to meet the requirements under balance.

Standard 6 (fairness)

[82]  CanWest maintained it was difficult to see how the programme was unfair to ESR. It said sufficient information was given to MOH of the overall subject matter of the proposed interview and the nature of the topic to be addressed. Prior to the interview, time was provided for preparation and briefing of Dr Jacobs, and following the interview, time was allowed for providing additional material. Further, adequate excerpts of the interview were included in the programme to present the agencies’ perspective.

Submissions from Programme Makers

[83]  CanWest attached a detailed response from the documentary team.

[84]  The programme makers noted that the programme did not directly criticise ESR or even mention the study’s authors. It also did not criticise the peer reviewers, only pointing out that they did not have the necessary raw data. They argued that ESR was wrong to think the change in peak exposure period did not alter the original findings. The study was unreliable because the exposure levels were down-played, largely because of the failure to identify a peak exposure period. This was also because MOH had redirected the study halfway through.

[85]  The real question for the Authority, the documentary team submitted, was whether the serum study could appropriately be described as "unreliable" and whether the later peer reviews supported that. The team reiterated that the reviewers did not have the necessary raw data.

[86]  The team said MOH showed no concern about the study-related questions in the interview, and Dr Jacobs and MOH’s communications team left the interviewer with the impression if there was anything to add it would contact the documentary team. It did not do this until one working day before the broadcast, when MOH sent the response from ESR, which highlighted the fact that the study had been conducted according to international scientific best practice, and had been peer-reviewed throughout.

[87]  The programme makers considered that if ESR had been "unduly alarmed" by the criticisms as conveyed by MOH it would have contacted TV3 directly. They disagreed with ESR’s suggestion of a "crawl" conveying its perspective; serious documentaries do not have contradictory information crawling across the screen, they said. In a programme of this magnitude, any statement had to be carefully checked and researched. There was no time to verify ESR's response, and the team had doubts as to whether it would add to viewers' understanding of the issues. Instead of including it in the programme, ESR’s entire response was posted on the programme’s web page.

[88]  Further, with regard to the interview with Dr Thomson-Carter for a news item on 24 October 2006, CanWest maintained that Dr Jacobs’ comments were a fair reflection of the actual position of the "whole of government" approach to the issues discussed.

[89]  The documentary team emphasised that MOH agreed to be interviewed, it was the subject of the documentary and ESR was barely mentioned, and the study author not at all. The inclusion of views from various other government agencies would have made the programme unwatchable and confusing for viewers, it said. Instead, the criticisms of the study were put to Dr Jacobs as the owner of the study, and he agreed to have the study reviewed. For reasons of clarity, those criticisms were kept general and brief. The team also pointed out that it had worked with scientists before and after the programme, one of whom had compiled a report which supported Mr Leonard’s criticisms.

[90]  The programme makers considered it was completely incorrect to suggest that the programme took a position based on Mr Leonard’s opinion alone, and equally inaccurate to say that the documentary alleged the study flaws were part of a government cover-up. The team and its advisors had analysed facts and found evidence it was flawed, and the main flaw had been admitted and corrected, they said.

Complainant’s Final Comment

[91]  ESR considered that the broadcaster had not advanced any new matters in its latest response. With regard to balance and guideline 4c, ESR referred to its submission in its referral dated 12 February 2007.

[92]  The complainant argued that TV3 had contradicted itself in outlining the controversial issue discussed by the programme. In its letter of 31 October 2008, it stated that the controversial topic being considered was not the science or the health effects relating to dioxin. It considered this was at odds with the documentary team’s response to MOH dated 7 August 2007, which said:

...the only areas requiring balance are the contemporary issues – namely the serum study, the cancer study and related matters... the section of the documentary under serum study was not so much about the health risks as about the study’s fundamental flaws...

[93]  In response to CanWest’s argument that balance was about what a first time viewer would have understood to be the significant points of view on the issue discussed, ESR considered a first time viewer would have believed that ESR’s study was fundamentally flawed. There was nothing in the programme to suggest that ESR and its scientists rejected that suggestion, the complainant said. It disagreed with CanWest that it was sufficient for balance to refer in general terms to Mr Leonard’s criticisms and then obtain a commitment from Dr Jacobs to have the study reviewed; TV3 was obliged to obtain and include ESR’s perspective.

[94]  With regard to fairness, the complainant claimed it was never made aware of the criticisms being made of it and the study, or that the thrust of the programme and subsequent broadcasts was that the study was seriously flawed. It therefore considered it had been "ambushed, reviled", and that its scientists had had their reputations blackened.

[95]  Due to its concern for its own reputation and that of its scientists, ESR had ensured Dr Thomson-Carter was interviewed in an attempt to set the record straight and emphasise, "albeit somewhat belatedly", that ESR completely rejected the allegations about and criticisms of the study. TV3 could have achieved balance in that way, ESR said, but it chose not to broadcast any of the interview. The complainant disagreed that Dr Jacobs’ comments were a fair reflection of the whole of government approach; "viewers could not possibly understand from Dr Jacobs' comments that ESR rejected absolutely the criticisms", it said.

[96]  Looking at the latest response from the documentary team, ESR rejected the team’s assertion that the programme did not accuse ESR of a cover-up. The programme clearly advanced the theory that there had been “one of the biggest cover-ups in New Zealand’s history” (page 2 of the transcript for the programme). The reporter asked Dr Jacobs if he understood "why people think this has been one heck of a cover-up". ESR considered that viewers would "inevitably conclude, as was intended, that the ESR study was part of the cover-up referred to at the opening and then immediately after a detailed reference to the ESR study".

[97]  The complainant also objected to the contention that Dr Jeff Fowles, the study’s author, had accepted the criticisms and allegations made about the study. It noted the rebuttal written by Dr Fowles, attached to ESR’s submissions of 10 September 2008, and that the post-broadcast reviewers shared his views.

[98]  ESR rejected the programme makers' argument that the programme had not directly criticised ESR or mentioned the study’s author. The story directly criticised the ESR study, it said, and therefore the scientists who performed the study. The complainant accepted ESR was only mentioned once in the programme, but emphasised that ESR is a well known scientific body and would have been known to the majority of viewers.

[99]  With regard to the suggestion of a "crawl", ESR considered the documentary team’s reasoning was "unconvincing at best. There is no explanation as to why the follow up programme the following day could not have referred to ESR’s response or indeed could not include Dr Thomson-Carter’s interview of that day".

Authority's Determination

[100]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Preliminary Matters

[101]  The Authority wishes to note for the record that the determination of this complaint has been delayed for over two years. The delays are linked to a complaint about Let Us Spray by the Ministry of Health, and are fully outlined in Appendix 1 to that decision (see Decision No. 2007-012). The parties and the Authority agreed that ESR’s complaint should be determined at the same time as MOH’s complaint, as both complaints raised essentially the same issues.

The Nature of the Programme

[102]  Before dealing with the substantive complaint, the Authority considers that it would be helpful to give its account of the programme in question.

[103]  Let Us Spray was a 90-minute programme which screened at 7.30pm on a Monday evening, a slot usually reserved for the current affairs programme 60 Minutes. It was billed as a TV3 Special Investigation, and was presented by a well-known journalist and regular reporter for 60 Minutes, Melanie Reid, who introduced the programme as being "the result of a year-long investigation". She went on to describe it as "a 90-minute special documentary". This framing is important to the Authority’s consideration of balance.

[104]  What followed, in the Authority's view, was a powerful, gripping and at times emotionally harrowing programme. Few viewers would have been unmoved by the images of babies with shocking deformities, and the painful accounts of those whose families had suffered a seemingly disproportionate number of birth defects, illnesses and early deaths.

[105]  At the core of the story, as the reporter said, were the views and personal struggles of the people of Paritutu, New Plymouth. They believed that they and their families had been poisoned by their exposure to the chemicals 2,4,5-T and 2,4-D, which was produced in Paritutu by Ivon Watkins Dow between 1962 and 1987. The residents claimed that successive governments had failed them by not taking their claims seriously, and by putting economic interests before their health needs. In the Authority’s view, this was an important story which deserved to be told.

[106]  However, while the Authority agrees that the personal stories of the people of Paritutu were at the heart of the programme, it considers that the programme had two other distinct strands.

[107]  First, the programme outlined the historical context to the concerns of Paritutu residents and workers at the Ivon Watkins Dow plant. This included the history of 2,4,5-T and 2,4-D production and use in New Zealand, the growing international concerns about the effects of dioxin, and the importance of agricultural exports to the economy. It also encompassed the attitudes and responses from successive governments and their agencies, particularly the health authorities, to the growing health concerns of the people of Paritutu.

[108]  Second, the programme looked at the more recent responses of current health authorities. This included the serum study report which was commissioned by the Ministry of Health, conducted by ESR, and released in 2005. The most significant aspect of ESR’s complaint lies in the broadcaster’s handling of the contemporary issues – most importantly, John Leonard’s critique of the serum study.

[109]  Having outlined its view of the programme and how this affects the determination of this complaint, the Authority now proceeds to determine each aspect of ESR’s complaint under the standard or standards which it considers are most relevant and appropriate.

Standard 4 (balance)

[110]  Standard 4 requires broadcasters to maintain standards 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. In the Authority’s view, Let Us Spray discussed the issue of whether public health authorities had adequately investigated, reported and acted on the beliefs of people who lived or worked in Paritutu that dioxin exposure had caused serious health effects (such as illness, deformity, and death) for them and their families. This was clearly a controversial issue of public importance.

Authorial documentary

[111]  CanWest has argued that Let Us Spray was about the "personal stories" of the people who believed they had been poisoned by dioxin, and therefore it fell within guideline 4c because it approached the topic from a particular perspective. Guideline 4c to the balance standard states:

Factual programmes, and programmes shown which approach a topic from a particular or personal perspective (for example, authorial documentaries and those shown on access television), may not be required to observe to the letter the requirements of Standard 4.

[112]  As outlined in paragraphs [106] to [108] above, the Authority disagrees with the broadcaster’s view. It finds that the programme clearly went beyond the personal stories of Paritutu residents, discussing historical facts and allegations about the conduct of government agencies in relation to dioxin. It also looked at the adequacy of the response by current public health authorities, questioning why they did not take action sooner, and whether the serum study was flawed.

[113]  Further, the way the programme was framed would have given viewers a definite expectation that it would be a serious, detailed and comprehensive report on the effects of dioxin poisoning in New Zealand. The programme was introduced as being "the result of a year-long investigation" and described as "a 90-minute special documentary". The reporter did not state that the programme was a personal view or a one-sided investigation.

[114]  For these reasons, the Authority finds that viewers were entitled to expect that all significant perspectives would be provided so that they could reach an informed decision about the issue under discussion. Accordingly, it concludes that Let Us Spray was not the sort of programme covered by guideline 4c, and therefore the usual requirements of the balance standard applied

[115]   Bearing this in mind, the Authority now turns to consider ESR’s complaint under the balance standard.

The Serum Study

[116]  Part of the programme discussed the dioxin serum study which was conducted by ESR and released by the Ministry of Health in 2005. The reporter said that the final report showed that "Paritutu residents on average had four times the dioxin levels of other New Zealanders". The following exchange took place between the reporter and John Leonard, a forensic accountant hired by the broadcaster to "crunch the numbers":

Voiceover:      But the New Plymouth dioxin group and some of the test’s participants
                     believe the serum study is seriously flawed. They claim the data has been
                     wrongly interpreted and this down-plays the degree of the dioxin
                     contamination problem.

Leonard:        What I understand they’re saying is, "We don’t know what the hell happened".

Voiceover:     So we hired an independent expert to see if these concerns are warranted.

Leonard:        I think they are, yes. The...

Voiceover:     John Leonard, a forensic accountant, studied the data we obtained along with
                     the Government’s own documentation.

Reporter:       Your figures are quite a lot different to their figures. Your figures show this
                     [holding her hands up at different heights to indicate the difference]; their
                     figures are more like this [holding hands up closer together].

Leonard:        That’s correct, yes. That’s because they’ve got two people in the wrong place.
                     Now if you take that...

Voiceover:     In brief, John Leonard found there were participants in the wrong group,
                    different data sets merged, a potential omission of a key participant and lack
                    of certainty because of the reduced sample size.

Leonard:       What I’m saying is there is enough information here for me to have concerns
                    about the...the accuracy of it.

Reporter:      How concerned are you about the accuracy of it?

Leonard:       Academically it’s...it is concerning and I guess for the people in Paritutu it
                    would be emotionally very concerning.

Reporter:      So you don’t think the people of Paritutu have been well served by the study?

Leonard:       No, I don’t think they have. My recommendation would be that somebody
                    totally independent looks at this. The data is there why not let somebody else
                    look at it? If it’s accurate then, fine, I’m wrong. But if it’s not accurate then we
                    will find out the correct position for the people of Paritutu.                       

[117]  In addition to the allegations outlined above, the programme also referred to Appendix O of the serum study in the following exchange between the reporter and Dr Jacobs:

Voiceover:    We put to Dr Jacobs the conclusion from our independent expert John
                    Leonard.

Reporter:      His recommendations are that the serum study is reviewed with the raw data
                    by an independent... by a statistician, preferably someone off-shore. Will you
                    agree to this?

Jacobs:         Well, certainly. In fact we’ve already had the study and its methodology and its
                    findings reviewed by a number of independent experts off-shore [interrupted]

Reporter:      Did they have Appendix O? Did they have the raw data?

Jacobs:         I think they got all of it, yes.

Reporter:      Well, I’ve asked them and they didn’t. They didn’t have Appendix O, which has
                    got the anonymous serum results in it.

Jacobs:         Well, I mean my assumption is that they had received it, I mean we can double
                    check that.

Reporter:      Does that concern you?

Jacobs:         Well, I mean, I would have assumed that the independent reviewers would get
                    access to the full report so they can...you know, they can make a considered
                    judgment on whether there’s issues with the methodology.

[118]  In the Authority’s view, these segments of the programme raised concerns about the accuracy, validity and integrity of the serum study. Further, the critique was clearly linked to the controversial issue discussed in the programme – whether the response by public health authorities to the concerns about dioxin had been adequate. Accordingly, the Authority finds that CanWest was required to make reasonable efforts, or give reasonable opportunities, to present significant points of view on specific points raised in relation to the serum study.

[119]  The following discussion took place in the programme between the reporter and Dr Mark Jacobs from MOH, directly after the exchange with Mr Leonard:

Jacobs:        And if you’ve got that advice we want to see it. I mean if there’s issues
                    around the methodology, we want to know. I mean, that was why we
                    [interrupted]

Reporter:      Well, I’ll tell you what, since October 2005 this [holding up piece of paper] has
                    been sent to the Health and Disability Commissioner, the Minister of Health,
                    the ESR study team from people in the community. The issues have already
                    been canvassed.

Jacobs:        Well, I mean, I’m aware of issues like concerns being raised by different people
                    in the community [interrupted]

Reporter:     These exact issues have been raised by people in the community.

Jacobs:        I mean, all we can do is go away and look again to see whether there’s new
                    issues that are being raised that haven’t been dealt with previously.

[120]  The Authority finds that the above exchanges were insufficient to provide balance on the criticisms of the serum study. CanWest has argued that MOH was the appropriate body to respond to the criticisms of the serum study, because it commissioned the study and drove the communications strategy. However, the Authority notes that the questions put to Dr Jacobs were not about the management and communication of the study; they were technical and specific questions about the way the study was conducted. These questions required a level of expertise and familiarity with the serum study and its methodology that Dr Jacobs clearly did not have. He did not know the significance that the programme makers had attached to Appendix O. He was not sufficiently acquainted with the methodology of the report to answer questions about mixed data sets, or whether the peer reviewers received the raw data. In other words, in order to achieve balance, input was required either from the organisation that conducted the serum study, ESR, or from someone able to speak on ESR’s behalf.

[121]  The Authority considers that it was reasonable for CanWest to approach MOH in the first instance. It notes that the broadcaster gave MOH only a general indication of the subject matter, and it was on this basis that MOH agreed to be interviewed about the serum study. It is acceptable journalistic practice not to provide interviewees with a specific question line in advance of an interview. However, as noted above, it is clear from the exchanges between Dr Jacobs and the reporter that Dr Jacobs did not have sufficient detailed knowledge of the serum study to provide the significant perspective that would have satisfied the requirement for balance.

[122]  The Authority considers that if MOH were to be given a reasonable opportunity to give a response on ESR’s behalf, it needed to be given enough information about the criticisms of the study to allow a considered response to be prepared. In the Authority’s view, neither ESR nor MOH could respond effectively without either a copy of Mr Leonard’s report, or an adequate summary of his criticisms.

[123]  The Authority notes that, following the interview, MOH asked ESR to respond to the questions which had been put to Dr Jacobs; ESR’s response was subsequently relayed to CanWest, but CanWest maintained that it arrived too late for inclusion in the programme.

[124]  The broadcaster contended that it was given no indication by MOH that it should have approached ESR for comment on the serum study, or that a further response from MOH was forthcoming. However, the Authority notes that Dr Jacobs indicated in the interview that MOH wanted to see Mr Leonard’s analysis. He said "if you’ve got that advice we want to see it. I mean if there’s issues around the methodology, we want to know". The Authority also points out that the responsibility for ensuring that a programme complies with broadcasting standards lies with the broadcaster.

[125]  From the broadcaster’s correspondence, it appears that the programme makers were so confident that Mr Leonard’s findings were correct that they deemed it unnecessary to seek an alternative perspective. However, following the broadcast, the serum study and John Leonard’s comments were reviewed by ESR and by a number of other reputable people (see paragraphs [72] to [73] above). While acknowledging the presence of two minor errors in the report, the consensus of the reviewers appears to be that these were inconsequential to the report’s findings. Without making a judgment about who is right or wrong, the Authority considers that there was clearly an alternative significant perspective on Mr Leonard’s specific criticisms that the broadcaster should have sought and included in Let Us Spray. Without this, viewers would have been unable to make an informed judgment as to whether the serum study was flawed in the way suggested by the programme.

[126]  This was not a situation where the broadcaster was rushing to meet a nightly news deadline; on the contrary, the programme’s reporter acknowledged that it was the result of a year-long investigation.

[127]  The Authority also acknowledges that Standard 4 allows for balance to be provided within the period of current interest. At no stage in the two years since the broadcast has CanWest broadcast an alternative perspective on the specific criticisms of the serum study that were contained in Let Us Spray.

[128]  In these circumstances the Authority finds that CanWest did not make reasonable efforts, or give reasonable opportunities to present significant perspectives on this part of the controversial issue under discussion, within the programme or within the period of current interest.

[129]  The Authority acknowledges that CanWest was exercising its right to freedom of expression (section 14 of the New Zealand Bill of Rights Act 1990) in broadcasting the programme which questioned the actions of a government department. The Authority has acknowledged the importance of section 14 and the values underlying the right to freedom of expression.³ However, "the right of freedom of expression is not an unlimited and unqualified right".⁴ The Authority must ensure that, if it is considering upholding this part of the balance complaint, the restriction on the broadcaster's right to freedom of expression is prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).

[130]  In Decision No. 2008-014, the Authority determined that upholding a complaint under Standard 4 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 4 in the following terms:

The Authority has previously stated that the balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion. The standard only applies to programmes which discuss "controversial issues of public importance", and therefore this objective is of vital importance in a free and democratic society. Accordingly, the Authority considers that upholding a complaint under the balance standard would place a justified limitation on a broadcaster's right to freedom of expression.

[131]  The Authority must now consider whether it would be a reasonable and proportionate limit on CanWest's freedom of expression to uphold a breach of the balance standard on this occasion. As discussed above, the significant perspective which was omitted from this programme was important to viewers' ability to reach an informed view on whether MOH had responded adequately. Upholding this part of the balance complaint would signal the importance of providing the public with all significant sides of a controversial issue under discussion. Accordingly, upholding this part of the complaint would clearly promote the objective of Standard 4 (as outlined in paragraph [130] above).

[132]  In these circumstances, the Authority upholds the balance complaint.

Standard 6 (fairness)

[133]  The Authority notes that there was only one reference to ESR throughout the Let Us Spray programme. This was by the reporter, when she told Dr Jacobs that the community's concerns about the study had been raised with various agencies including "the ESR study team". However, the serum study criticised in the programme was conducted and written by ESR. The Authority considers that members of the research and scientific community would have been aware that ESR was the author of the study being criticised in the programme. Further, any member of the public could have easily accessed this information via the internet. For these reasons, the Authority concludes that ESR was an organisation "taking part or referred to" in Let Us Spray.

Unfairness to ESR

[134]  In its consideration of Standard 4 (balance) in paragraphs [116] to [132] above, the Authority found that the broadcaster failed to provide viewers with an alternative significant perspective on John Leonard’s critique of the ESR serum study. It noted that the broadcaster did not need to approach ESR directly for this perspective if it believed that MOH had taken ownership of the study, but it was clear that Dr Jacobs was unable to give a meaningful response to Mr Leonard’s report. The Authority has concluded that the broadcaster needed to at least give MOH sufficient details about Mr Leonard’s criticisms so that it could have sought a response from ESR. If this had occurred, viewers would have been advised that ESR – and a number of other credible people in the field – found that Mr Leonard had only identified minor and inconsequential flaws in the study.

[135]  Conducting research is a core part of ESR’s work,⁵ and the Authority considers that strongly criticising the validity and integrity of a study conducted by ESR would have had a negative effect on the professional integrity of the organisation. The Authority considers that ESR was treated unfairly by the broadcaster because Mr Leonard’s conclusions were broadcast without obtaining ESR’s response to his specific criticisms. It reiterates that the broadcaster was not under any time pressure which may have limited its ability to seek that perspective; the investigation had been ongoing for over a year before the broadcast.

[136]  Accordingly, the Authority finds that CanWest treated ESR unfairly by broadcasting forceful and specific criticisms of its study without presenting ESR's perspective.

[137]  As discussed above in relation to the balance standard, the Authority acknowledges that upholding the fairness complaint would place a limit on the broadcaster's right to freedom of expression. In Decision No. 2008-014, the Authority determined that upholding a complaint under Standard 6 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 6 in the following terms:

One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.

[138]  The Authority must now consider whether it would be a reasonable and proportionate limit on the broadcaster's freedom of expression to uphold a breach of the fairness standard on this occasion. It has found above that the item reflected negatively on ESR’s reputation through the omission of a key perspective which led to ESR's work – and consequently ESR itself – being unfairly portrayed.

[139]  Upholding a breach of the fairness standard on this occasion would not prevent broadcasters from questioning the quality of research conducted on behalf of government agencies. Rather, it would ensure that such research is portrayed in a fair manner. Had ESR’s perspective on Mr Leonard’s criticisms been included in the programme, the Authority considers that viewers would have been left with a very different impression about ESR's performance. In this respect, upholding this complaint clearly promotes the objective of Standard 6 as described above.

[140]  In these circumstances, the Authority finds that upholding this part of the fairness complaint places a justified and reasonable limit on CanWest’s freedom of expression. It therefore upholds the complaint that ESR was treated unfairly in this respect.

Cover-up allegation

[141]  The Authority does not agree with the complainant that ESR was portrayed as being involved in a cover-up of the dioxin issue in Paritutu. In the Authority’s view, the question of whether there had been a historical and ongoing cover-up in the programme was raised solely in relation to MOH. Throughout the programme, MOH was portrayed as being responsible for all of the historical actions that had been taken in relation to dioxin, for the serum study and the subsequent peer review.

[142]  In the Authority's view, the programme would not have left the reasonable viewer with the impression that ESR was involved in a cover-up of the dioxin serum levels in Paritutu. It declines to uphold this part of the complaint.

Unfairness to the peer reviewers of the serum study

[143]  The complainant also argued that the peer reviewers of the serum study were not treated fairly by the broadcaster. The Authority disagrees, for the following reasons.

[144]  ESR's concern about the peer reviewers relates to the following exchange in the programme:

Jacobs:         ...we've already had the study and its methodology and its findings reviewed
                    by a number of independent experts off-shore [interrupted]

Reporter:      Did they have Appendix O? Did they have the raw data?

Jacobs:         I think they got all of it, yes.

Reporter:      Well, I’ve asked them and they didn’t. They didn’t have Appendix O, which has
                    got the anonymous serum results in it.

Jacobs:        Well, I mean, my assumption is that they had received it, I mean we can double
                    check that.

Reporter:      Does that concern you?

Jacobs:         Well, I mean, I would have assumed that the independent reviewers would get
                    access to the full report so they can...you know, they can make a considered
                    judgment on whether there’s issues with the methodology.

[145]  ESR argued that, in line with standard scientific practice, the peer reviewers were not provided with the raw individual data. None of the reviewers had requested the data to complete their peer reviews, it said.

[146]  However, from the above exchange, the Authority considers that the ordinary viewer would have been left with the impression that the peer reviewers – through no fault of their own – were not provided with all of the material which they needed to review the serum study properly. This did not reflect negatively on the peer reviewers, because it suggested that the raw data had been held back from them.

[147]  In addition, any viewer who knew that the peer reviewers did not require the raw data (as ESR said, in line with standard best practice) would also not have regarded the reviewers in a negative light. Either way, the Authority finds that the peer reviewers of the serum study were not dealt with unfairly by the broadcaster.

[148]  It declines to uphold this part of the complaint.

Standard 5 (accuracy)

John Leonard's qualifications

[149]  ESR argued that, as a chartered accountant, John Leonard was not qualified to review the serum study. It said that viewers should have been told that he had no scientific training or understanding, and was not qualified at all to analyse or criticise such a highly specialised study. In the Authority’s view, the programme was entirely honest about Mr Leonard’s area of expertise. He was described as a forensic accountant; the programme did not give a false or misleading impression that he had any science-related qualifications. Further, Mr Leonard himself suggested that a different sort of expertise was needed to check his conclusions.

[150]  The Authority declines to uphold this aspect of the accuracy complaint.

Other aspects of the Standard 5 complaint

[151]  The Authority considers that its decision in respect of balance and fairness adequately and appropriately addresses all other aspects of ESR’s complaint. For example, the Authority is not the appropriate body to determine the merits of John Leonard’s critique of the ESR serum study, but it has considered whether the programme should have presented alternative perspectives on that issue, and whether this was unfair to ESR.

[152]  In these circumstances, the Authority subsumes these parts of the Standard 5 complaint into its consideration of balance and fairness.

Conclusion

[153]  In conclusion, the Authority has found that aspects of the broadcast of Let Us Spray breached standards of balance and fairness. The broadcaster failed to make reasonable efforts to include significant perspectives on the serum study and the health effects of dioxin, and this in turn led to ESR being treated unfairly.

[154]  These matters were critical to the overall presentation of the controversial issue of public importance: whether public health authorities had adequately investigated, reported and acted on the beliefs of people who lived or worked in Paritutu that dioxin exposure had caused serious health effects (such as illness, deformity, and death) for them and their families.

[155]  The Authority points out that its findings on this occasion should not be viewed as restricting legitimate investigation and criticism of actions by government departments. It has commented above that this was an important story which deserved to be told; the people of Paritutu were entitled to express their beliefs about dioxin and how the government had failed them. However, it is essential that investigations into controversial issues of public importance be presented in a fair and balanced way. This ensures that viewers are adequately informed of the issues, and that the people and organisations being criticised have a reasonable opportunity to put forward their side of the story.

 

For the above reasons the Authority upholds the complaint that the broadcast by CanWest TVWorks Ltd of Let Us Spray on 23 October 2006 breached Standards 4 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

Submissions on Orders

[156]  Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. It invited submissions on orders from the parties.

[157]  ESR submitted that the Authority should order the broadcast of a statement containing a comprehensive summary of the Authority’s decision during 60 Minutes. It also argued that the statement should be published in each of the four daily metropolitan newspapers in New Zealand.

[158]  The complainant sought legal costs and submitted invoices totalling $33,541.52 including GST for this complaint and for its complaint about a related 3 News item (see Decision No. 2007-013). ESR’s lawyer estimated that three quarters of those legal fees were charged for work on the Let Us Spray complaint. ESR argued that the broadcaster should be ordered to pay costs in excess of the amount (namely, one-third of costs reasonably incurred) identified in the BSA’s Advisory Opinion on Legal Costs as the amount likely to be awarded in the absence of special circumstances.

[159]  The complainant also argued that the broadcaster should be ordered to pay $5,000 costs to the Crown.

[160]  The broadcaster submitted that the only order the Authority should make was for the broadcast of a statement. It noted that Let Us Spray was not a 60 Minutes report but a 3 News Special, and therefore a more appropriate time for a statement would be at the end of 3 News at approximately 7pm.

Authority's Decision on Orders

[161]  The Authority has considered the submissions on orders from both parties. It is of the view that it is appropriate to order TVWorks to broadcast a statement containing a comprehensive summary of the upheld aspects of its decision. The statement must be presented verbally and also visually on screen, within one month of the date of this decision.

[162]  The Authority has also ordered a statement to be broadcast in respect of Decision No. 2007-012, which relates to a complaint by the Ministry of Health about Let Us Spray. In the Authority’s view, the statements for these two complaints should be combined as they cover much of the same material.

[163]  In previous instances where the Authority has ordered a broadcast statement in relation to a one-off programme or one which does not have a regular timeslot, it has directed that the statement be broadcast during a similar timeslot on the same day of the week as the original broadcast (see, for example, Decision No. 2007-138). It follows that approach in this case, and orders that the statement must be broadcast on a Monday evening on TV3 directly prior to the 7.30pm programme.

[164]  The Authority notes ESR's submission that the broadcaster should publish a statement in several major newspapers. This order has previously been made only in exceptional circumstances. On this occasion, the Authority believes that the on-air statement and the publicity attracted by the publication of its decision will be sufficient.

[165]  With respect to legal costs, the Authority refers to its Advisory Opinion which was issued in April 2006.⁶ The primary purpose of an award under section 16(1) of the Broadcasting Act 1989 is to partially recompense a successful complainant for costs justifiably incurred in bringing a complaint. The Authority notes that the major planks of ESR's complaint were upheld (breaches of Standards 4 and 6 relating to the broadcaster’s omission of ESR’s perspective), and it considers that it was not unreasonable for ESR to be concerned about protecting its professional reputation and to seek legal advice in pursuing this complaint.

[166]  The Authority’s policy is that costs awards will usually be in the range of one-third of costs reasonably incurred. This amount may be adjusted upwards or downwards depending on the circumstances. In determining "reasonable costs" in this case, the Authority has had regard to the:

• the complexity of the factual background in this case
• the number of issues raised
• the number of substantive submissions that needed to be made
• the long time span of the complaint.

[167]  Having considered these factors, the Authority is of the view that $22,500 would be a reasonable amount of legal costs for the Let Us Spray complaint.⁷ It does not, however, consider that awarding one-third of this amount would be an adequate reflection of the circumstances of this case. The nature of the allegations in the broadcast would have affected ESR’s professional reputation, thereby affecting its commercial interests. In the Authority’s view, an appropriate award of legal costs in this case would be 50% of ESR's reasonable costs, or $11,250.

[168]  The Authority does not consider that an award of costs to the Crown is appropriate on this occasion.

[169]  The Authority has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 in making the above orders. The Authority considers the orders it has made on this occasion are consistent with the New Zealand Bill of Rights Act's requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

Orders

The Authority makes the following orders pursuant to sections 13 and 16 of the Broadcasting Act 1989:

1. Pursuant to section 13(1)(a) of the Act, the Authority orders TVWorks Ltd to broadcast a statement approved by the Authority. That statement shall:

• be broadcast within one month of the date of this decision
• be presented both verbally and visually on screen
• be broadcast on TV3 on a Monday evening directly prior to the 7.30pm programme, on a date to be approved by the Authority
• contain a comprehensive summary of the upheld aspects of the Authority's decision.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

2. Pursuant to section 16(1) of the Act, the Authority orders TVWorks Ltd to pay to the complainant costs in the amount of $11,250, within one month of the date of this decision.

The order for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

 

Joanne Morris
Chair
5 August 2009

Appendix

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

1. Institute of Environmental Science and Research Limited’s formal complaint –
   20 November 2006
2. CanWest’s decision on the complaint – 22 December 2006
3. ESR’s referral to the Authority – 12 February 2007
4. CanWest’s response to the Authority – 28 March 2007
5. CanWest’s interim submissions – 30 July 2007
6. ESR’s response to interim submissions – 6 August 2007
7. CanWest’s response to ESR’s referral – 8 August 2007
8. Further submissions from ESR – 10 September 2008
9. Further submissions from CanWest – 31 October 2008
10. Submissions from documentary team – 31 October 2008
11. ESR’s final comment – 10 February 2009
12. ESR’s submissions on orders – 14 July 2009
13. CanWest’s submissions on orders – 22 July 2009

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¹The reasons for the delays in processing this complaint are outlined in Appendix 1 to Decision No. 2007-012 which relates to a complaint by the Ministry of Health about the same programme.

²Professor Allan Smith of the University of California and Dr Chris Frampton, Associate Professor Biostatistics, Christchurch School of Medicine and Health Sciences, University of Otago.

³See Decision No. 2008-040

⁴P v D and Independent News Auckland Ltd [2000] 2 NZLR 591, per Nicholson J

⁵See http://www.esr.cri.nz/research/Pages/default.aspx

⁶/complaints-costsawards.php

⁷This figure is based on the Authority's assessment that a combined total of $30,000 (including GST) in legal costs was reasonable for the Let Us Spray and 3 News complaints combined.