BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.] 

The Authority has upheld two complaints from Action for Smokefree 2025 (ASH) about two items on ThreeNews reporting concerns about ASH, including alleged conflicts of interest and its stance on vaping. The Authority agreed the first item (26 July 2024), presented as a ‘special investigation’ into concerns about alleged links between ASH and the ‘pro-vaping’ lobby in Australia, breached the fairness, balance and accuracy standards: the reporter did not fairly inform ASH about the nature of the story or ASH’s contribution to it; ASH’s comments on the issues were not fairly presented, meaning the item was unbalanced; and, collectively, a number of statements and the presentation of ASH’s position created a misleading and unfairly negative impression of ASH. The Authority also found the second item (30 July 2024), reporting a school had ‘refused to allow’ its students to take part in ASH’s annual Year 10 Vaping Survey due to concerns about ASH’s stance on youth vaping, was misleading and unfair to ASH and its Director: the broadcaster did not make reasonable efforts to ensure accuracy, by failing to report important factual context which would have significantly altered viewers’ understanding of the item; and the single comment that was included from ASH failed to respond to the issues and unfairly portrayed ASH in a negative light.

ThreeNews, 26 July 2024 – Upheld: Fairness, Balance, Accuracy.

ThreeNews, 30 July 2024 – Upheld: Accuracy, Fairness.

Orders: Section 13(1)(a) - statement published on air, and online (to the extent reasonably within the broadcaster’s control); Section 16(1) - costs to the complainant $1,710.62; Section 16(4) - $3,000 costs to the Crown 

Introduction

[1]  In the last week of July 2024, ThreeNews (recently re-launched on 6 July 2024, and produced by Stuff following the disestablishment of Newshub) aired two stories on its 6pm bulletins reporting concerns about Action for Smokefree 2025 (ASH). ASH is described on its website as ‘an incorporated society that has been campaigning since 1983 to achieve the vision to eliminate the death and harm caused by tobacco’ and ‘a leading independent campaign voice for high quality tobacco control measures, [that] undertakes research including the ASH Year 10 Survey – the largest survey of its type in New Zealand’.¹

[2]  The first item on 26 July 2024, described as a ‘special investigation’, reported on concerns about alleged links between ASH and the ‘pro-vaping lobby’ in Australia. The item discussed the relationship between ASH and an alleged ‘pro-vape lobbyist’ who was reported as having received funding from vaping companies and having facilitated a trip by ASH’s Director, Ben Youdan, to Australia to ‘promote’ New Zealand’s vaping policies. The item included comments from an academic and a spokesperson for an anti-vape organisation expressing their concerns, as well as excerpts from an interview with Youdan.

[3]  Four days later, on 30 July 2024, ThreeNews broadcast another story about ASH, this time reporting ThreeNews ‘can reveal’ a Wellington school ‘refused’ to allow its students to take part in a Ministry of Health-funded survey on vaping among Year 10 students, run annually by ASH. The reason for this was reported as being that the school considered ASH was yet to publicly acknowledge the significant harm vaping causes to young people.

[4]  ASH lodged complaints about both broadcasts with the broadcaster, Warner Brothers Discovery (WBD).

[5]  For reasons which are explained below, we have found both broadcasts breached broadcasting standards and fell well short of the journalistic standards we believe New Zealand audiences expect from news programmes. For clarity, we have addressed each broadcast in turn as Parts 1 and 2 of our decision, although we consider together, they demonstrated a continued narrative favouring perspectives that were strongly critical of ASH, while failing to fairly present the other side of the story.

PART 1: THREENEWS, 26 JULY 2024

The broadcast

[6]  The first item was introduced as follows:

To a special investigation now, and concerns are being raised over links between anti-smoking organisation ASH and the pro-vaping lobby. ASH Director Ben Youdan visited Australia in February as the country looked to ban disposable vapes. ThreeNews can reveal his trip was coordinated by the founder of a group which has taken money from vape businesses and whose founding chair has advocated for vaping areas in schools.

[7]  The item continued:

Bridie Witton: Parents Against Vaping and public health academics are raising concerns about ASH’s links to the pro-vaping lobby in Australia.

Professor: Well, that would be a question that we would definitely want to have investigated. And I’m sure they – ASH – would want to have that question investigated as well.

[8]  The item included short clips from an interview with Youdan, interspersed with voiceover commentary by the reporter, as follows:

Witton: ASH runs the Year 10 Survey into smoking and vaping attitudes and behaviours with funding from the Ministry of Health. Its next survey is due at the end of the year, but its views towards vaping are outliers in New Zealand, which has invited backlash.  

Youdan: I’ve been in this 25 years and there’s levels of conflict and toxicity and nastiness that I’ve never experienced in anything. We’re facing constant kind of abuse and attack.  

Witton: Youdan travelled to Australia, where he promoted New Zealand’s vaping policies in February, and ThreeNews can reveal the trip was coordinated by Dr Alex Wodak, a man described over the ditch as a pro-vape lobbyist. Youdan first met him at a Māori public health symposium in Wellington.  

Youdan: I first met Alex when he came over to a workshop at a symposium we did with Hāpai te Hauora at the Beehive going back a few years ago, and that was when the sector was really beginning to talk about harm reduction.  

Witton: Wodak’s organisation, the Australian Tobacco Harm Reduction Association, or ATHRA, was paid nearly $20,000 from e-liquid and e-cigarette companies in 2018. [A] spokesperson for Vape Free Kids is concerned about ASH’s relationship with ATHRA.  

Vape Free Kids Spokesperson: There’s two words in their name that automatically rang alarm bells to us. We’ve learned that the words ‘harm reduction’ are a battle cry for the tobacco industry and their friends.  

Witton: Earlier this year, the association used paid-for stock images for testimonials, praising vaping as a tool to help give up smoking. But the people in the images spoke out to say the testimonials weren’t theirs. Ben Youdan claims the testimonials were real; that he met the people behind the quotes, even if the pictures were actually of different people.  

Youdan: People just don’t want to be out there and have their face out there publicly because they just receive such horrendous treatment.  

Witton: In April, ATHRA also advocated for vaping areas in schools.  

 … 

Youdan: I don’t agree with that. Yeah. Look… I don’t represent ATHRA, I don’t talk for ATHRA.

[9]  The latter part of the item briefly discussed comments Deputy Prime Minister Winston Peters had made in the House of Representatives, praising ASH. The item concluded with comments noting concerns about alleged links between New Zealand First and the tobacco industry, including that ‘parents and academics are now calling on [Casey] Costello, New Zealand First and the Government to be more transparent about the evidence that it’s basing its decisions on.’

Summary of the complaint and the broadcaster’s response

[10]  ASH complained the broadcast breached the balance, accuracy and fairness standards of the Code of Broadcasting Standards in New Zealand because: the broadcast misrepresented ASH’s position on the issues; it was unbalanced as ASH was not given a right of reply; and ASH was not given a fair opportunity to comment, nor fully informed of the nature of the story.

[11]  WBD did not uphold the complaint, finding: ASH was provided with ‘sufficient information about the nature of the planned broadcast and ample opportunity to comment’; many of the allegations made in the broadcast were put to Youdan for comment; and the broadcast otherwise included a range of perspectives on vaping to provide balance.

[12]  More detailed submissions from the complainant and the broadcaster are discussed in our consideration of the nominated standards below.

Our analysis and findings

[13]  In considering this complaint, we have watched the ThreeNews broadcast. We have also seen the full interview between the reporter and Youdan, which we requested from the broadcaster. We have read the correspondence listed in the Appendix.

[14]  We have carefully considered the right to freedom of expression, which includes both the broadcaster’s right to offer a range of information and content, as well as the audience’s right to receive that. This is the starting point when we determine a complaint that broadcasting standards have been breached.

[15]  Our task is to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. Freedom of expression is an important right in a modern democracy like New Zealand, and we may only intervene where the harm is at such a level that limiting the right to freedom of expression is demonstrably reasonable and justified in a free and democratic society.²

[16]  Media play a vital role in scrutinising the actions of organisations which carry out public health objectives and receive public funds for that purpose, in this case, Action for Smokefree 2025, which receives significant funding from the government to carry out public health work on its behalf. This broadcast raised questions and explored concerns about potential conflicts of interest and how that may cause harm to young people, with respect to vaping, which carried value and public interest.

[17]  However, there is also public interest in ensuring the audience has the benefit of both sides of the story, and that relevant parties (and their views) are represented accurately and fairly.

[18]  We do not consider the broadcaster met its obligations with respect to this first broadcast. The broadcast created a misleading, unbalanced and unfairly negative impression of the complainant, by favouring particular (critical) perspectives, while failing to adequately present ASH’s position in response, despite this having been discussed at length during an un-aired 30-minute interview. This undermined the public interest in the story as the audience did not have the benefit of hearing both sides to enable them to reach their own informed opinions.

[19]  We therefore concluded the 26 July 2024 broadcast had the potential to cause harm under each of the three standards nominated – fairness, balance and accuracy – which outweighed the broadcaster’s freedom of expression and is significant enough to warrant our intervention.

[20]  Our reasoning is similar for each standard raised. We began by analysing the elements contributing to unfair treatment and portrayal of ASH. This in turn supported our findings that the item was unbalanced and misleading by omission.

Fairness

The complaint

[21]  ASH’s concerns under this standard were that ASH was not adequately informed about the nature of the broadcast, did not get a right of reply to the allegations, and the broadcast misrepresented ASH’s position in a way that undermined its integrity and credibility. ASH submitted:

• ‘The nature and purpose of the story was not fairly communicated to ASH. The initial call to [Youdan] by Bridie Witton was framed as some early research for a political story. It was only when pushed during a later Google Meet video call that it was admitted the story was about ASH rather than a generic story about diverse views on vaping.’
• The reporter did not identify herself as being from ThreeNews, but from Stuff: ‘It was not disclosed in advance of, or during the Google Meet in which the ASH Director was interviewed, that it was for a television broadcast [rather than a general fact-finding discussion]’. Had he been aware of this, Youdan said he would have dressed more formally and conducted the interview in a different setting.
• ASH was not given a right of reply to negative comments and accusations made by others.

The broadcaster’s response

[22]  WBD did not uphold the complaint under the fairness standard, saying:

• ‘In recent years, vaping has come under increased scrutiny and public debate. As an advocate of vaping, the Committee maintains ASH can expect to be the subject of robust media scrutiny.’
• ‘The initial call and Mr Youdan’s responses about the February trip were a springboard for further work and research by Ms Witton who then found links to Dr Wodak which were being questioned by other experts. The next day Ms Witton requested an interview with Mr Youdan, on that same email chain about the Australia trip… the Australia trip was clearly included in the subject areas Ms Witton wanted to cover.’
• ‘Ms Witton informed Mr Youdan before recording the video interview that everything was being recorded because Stuff now operated across platforms including the television bulletin, ThreeNews. The interview was conducted fully on the record in agreement with Mr Youdan.’
• ‘Despite being told it could be used on the bulletin, Mr Youdan mentioned to Ms Witton that he thought the discussion would be used for “long form”. Stuff has advised WBD that it would be happy to attach the full video to the written story on its online platform if ASH would like all of Mr Youdan’s comments on record in “long form”.’
• ‘The Committee maintains that the ThreeNews reporter provided ASH with sufficient information about the nature of the planned broadcast and ample opportunity to comment.’

The standard

[23]  The fairness standard³ protects the dignity and reputation of those featured in programmes.⁴ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage. Guidelines relevant for the purposes of this complaint include:

• Guideline 8.2: Participants and contributors should be informed, before a broadcast, of the nature of the programme and their proposed contribution, except where justified in the public interest, or where their participation is minor in the context of the programme.
• Guideline 8.4: If a person or organisation referred to or portrayed in a broadcast might be adversely affected, that person or organisation should usually be given a fair and reasonable opportunity to comment for the programme, before the broadcast. What is ‘fair and reasonable’ will depend on the circumstances.⁵
• Guideline 8.6: Edited excerpts should fairly reflect the tenor of the overall events or views expressed.

Our analysis

[24]  The key issues with respect to fairness are: whether the way the interview with Youdan was set up and framed by the reporter was justified and fair, so that ASH was adequately informed as to the nature of their participation before the broadcast; whether ASH was given a fair and reasonable opportunity to comment prior to the broadcast; and whether its comments were fairly presented in the programme.

Contact between the reporter and Youdan before the broadcast

[25]  Based on information provided to us by ASH and the broadcaster, the timeline of contact between the reporter and Youdan was:

• 22 July 2024: An initial phone call was held between the reporter and Youdan. The parties agree the reporter advised ASH the purpose of the call was that she was ‘trying to get [her] head around the heated tobacco products issue and Winston Peters had said in the House that they got their advice from ASH’. In its response to the complaint, WBD said the initial call to ASH was about researching a political story and the questions related to that. However, the reporter also asked Mr Youdan about his February trip to Australia, including who facilitated and paid for it.
• 22 July 2024, 2:20pm: The reporter then emailed Youdan, ‘I wondered if there was any other research you could point me to on the benefits of heated tobacco products and how they can be used as a smoking cessation tool? Also wondering if you recalled the name of that group that brought you over to Australia in February – can you ping that to me?’
• 23 July 2024, 10:50am: Youdan responded with a lengthy email pointing to various research into heated tobacco products as a smoking cessation tool. The last two paragraphs said:

My trip to Australia was coordinated by Dr Alex Wodak, a seasoned drug harm reduction expert. It came off the back of ASH and Hapai te Hauora hosting him for a Parliamentary workshop on tobacco harm reduction at the Beehive in 2019.
You’ll hopefully understand that tobacco harm reduction is a very divisive topic that has split public health. While I can categorically say that there was no funding or association with tobacco or nicotine industries, I was supported by donations organised by Alex from private individuals who had lived experiences struggling with nicotine addiction, smoking, social justice and harm reduction. My only reticence in naming people is not that I have concerns about funding sources, but that people have faced quite unpleasant personal attacks as the debate in Australia has been quite feral at times.

• 23 July 2024, 4:24pm: The reporter replied asking, ‘would you be able to be interviewed either tomorrow or Thursday about this?’
• 26 July 2024, in the morning: The interview took place via Google Meet, lasting approximately 30 minutes. During the interview, Youdan specifically asked the reporter about the angle of the story numerous times:

Youdan: Hey, I just want you to tell me a bit more about the story. 

Witton: … we're sort of looking into quite a few things. So, the sort of main thrust is trying to understand sort of what the vaping picture is in New Zealand and what positions and views people are holding. This is a very contestable area at the moment with lots of new evidence coming and obviously we've got a government that's making changes in policy. So just try to understand, you know, all the main players and what their views are…

…

Youdan: … because Alex Wodak contacted me last night as well and he said you'd been in touch and just obviously that you'd had said to him, you're doing a story on ASH. So, I just want to understand a bit more about what the story's on and kind of where it's come from, because… the dynamic changes, if it's a story about ASH versus a story about the kind of nature of vaping…. I was just – I wanted to understand with you a bit more about kind of where the story was coming from and where you saw it going. And was it about ASH or was it about the wider thing? …

Witton: I think when ASH is playing such an important role and as you know, helping to shape government policy, all of those questions are intertwined. 

…

Youdan: So, can I just ask because, I mean, again, coming back to my questions [at the] start… What's been the genesis? The story? I'm interested in who else you've spoken to…

Witton: … All this information’s pretty available online… There’s sort of quite a few people that are concerned about potential links. 

Youdan: Yeah. 

Witton: In the various groups and just making sure that… as you pointed out, that the conversation is all, you know, transparent and honest and that sort of thing, that everyone knows where people are coming from. 

Youdan: Yeah. No, I just… I mean, I’m intrigued because, you know, I do everything I can to sustain my independence and integrity, and that’s really important… you’ll understand, that I feel a little bit like that, I’m on the receiving end of some tenuous kind of ways of trying to kind of link me to somehow being funded or serving the interests of some insidious force, which is categorically – and I do everything I can to categorically not do. Okay. And so that's where I'm kind of coming from, is. But, you know, I guess I want a bit of transparency back about where… some of the allegations about me come from. 

Witton: Well the allegations that – well they're not. I've just given you an opportunity to respond to these links that are in the public sphere already. 

Youdan: Yeah. 

Witton: There's no specific, you know. No. No one’s accusing you of anything. There is, as I’ve explained to you, a comment that in this environment where things are so divisive, and it is really unclear, and we do have all these groups purporting to be grassroots organisations when they’re not. And it’s really important that people are very clear and transparent. And I’ve put to you what people have said and the links that exist and given you the opportunity to talk. 

Youdan: Yeah… So, I guess again, sort of from transparency… where have those [allegations] come from?

Witton: They’re publicly available – I actually found these videos on YouTube. 

Youdan: Yeah, yeah but I guess my question is, has someone actually said, ‘what are these links with ASH’…

Informed participation 

[26]  The first question for us was whether ASH and Youdan were fairly informed of the nature of the programme and their proposed contribution.

[27]  The Authority has previously found broadcasters are not required to divulge all interviewees to be featured in a broadcast, or all questions that will be asked in an interview, for a participant to be fairly informed.⁶ However, the Authority has also held that where a broadcast shifts away from a general discussion of an issue to make specific allegations against a participant, in fairness, the broadcaster should inform the participant of that shift.⁷

[28]  It appears it was Youdan who initially mentioned Dr Wodak and stated the Australia trip was not funded by tobacco companies, at the end of a lengthy email responding to the reporter’s request for research on heated tobacco products for smoking cessation and the name of the group who brought Youdan over to Australia. The reporter responded asking to interview him ‘about this’, which could be read as relating to Youdan’s email in its entirety. Dr Wodak had then apparently told Youdan the story was ‘about ASH’ (mentioned by Youdan during the interview), meaning Youdan was on notice to an extent that the reporter may be more interested in ASH than he anticipated.

[29]  However, the onus is on the broadcaster to ensure a participant is adequately and fairly informed of the nature of their participation. Youdan explicitly asked the reporter numerous times during the interview what the angle of the story was and whether the focus of the broadcast was on ASH or on vaping more generally. The reporter did not, in our view, give Youdan a straight answer about the nature of the intended broadcast, or the shift in focus from ‘researching a political story’ on the vaping landscape, to being more focused on the links between ASH and Dr Wodak. Regardless of whether Youdan may, by the end of the interview, have had some awareness of the topics the reporter was interested in, we think it was unfair for the reporter to dodge his questions and overall, we do not consider this amounted to ‘informed participation’ as envisaged by the fairness guidelines.

[30]  We next considered ASH’s submission that Youdan was not aware the interview was for television and was under the impression the reporter was from Stuff, not ThreeNews, and therefore conducted himself and the interview differently or less formally than he might have. WBD states the reporter did inform Youdan that Stuff now operated across platforms including ThreeNews. No notes or recording were made by the reporter of that call, so we are not able to determine exactly what Youdan was told. However, noting this broadcast took place in the first few weeks of ThreeNews adjusting to a new format and production led by Stuff, we do not think all participants would know or expect that Stuff content may be broadcast on ThreeNews. We encourage the broadcaster to remain alert to this when ensuring people are fairly informed.

Opportunity to comment

[31]  It was clearly foreseeable ASH may be ‘adversely affected’ by the item, which scrutinised concerns about an alleged connection or conflict of interest between ASH and ‘pro-vape’ lobby groups in Australia.

[32]  The following statements in particular contributed to a negative impression of ASH (our emphasis):

• ‘To a special investigation now, and concerns are being raised over links between anti-smoking organisation ASH and the pro-vaping lobby. ASH Director Ben Youdan visited Australia in February as the country looked to ban disposable vapes. ThreeNews can reveal his trip was coordinated by the founder of a group which has taken money from vape businesses and whose founding chair has advocated for vaping areas in schools.’
• ‘This is Ben Youdan, director of ASH Action for Smokefree 2025, warning Australians about their government banning vapes except under prescription’.
• ‘ASH runs the Year Ten survey into smoking and vaping attitudes and behaviours with funding from the Ministry of Health. Its next survey is due at the end of the year, but its views towards vaping are outliers in New Zealand, which has invited backlash’.
• ‘Youdan travelled to Australia, where he promoted New Zealand’s vaping policies in February, and ThreeNews can reveal the trip was co-ordinated by Dr Alex Wodak, a man described over the ditch as a pro-vape lobbyist…’

[33]  Given ASH was likely to be adversely affected by the broadcast, the broadcaster’s obligation was to give ASH a fair and reasonable opportunity to comment for the programme.⁸ Despite our view that the reporter did not fairly inform Youdan of the nature of the story or ASH’s contribution to it, we were satisfied with the level of contact between the reporter and Youdan, the time periods given for ASH’s responses, and the opportunity for ASH to be interviewed.

[34]  We consider ASH was given a fair and reasonable opportunity to respond to the key concerns and allegations about links to the pro-vaping lobby, framed in the introduction as being the focus of the item. Youdan engaged willingly for the duration of the interview and responded capably to the reporter’s questions.

[35]  In the full interview, the reporter asked Youdan several times using variations of the following wording:

[Can you] see, though, the sort of tension there when Alex Wodak has, his company, you know, ATHRA organisation, you know, it did come out that it was started with this initial funding from vape businesses… but do you see why there are sort of concerns about, you know, potential links or links with yourself and someone like that when he has this history?

[36]  Youdan’s responses on this point, and more broadly regarding ASH’s stance on vaping, included the following: 

• ‘I was very, very clear that I wouldn’t do anything that was funded by tobacco or vaping, including, you know, that I wasn’t going to go forward with whatever… I was absolutely clear, and I tried every assurance there was no conflict with any of that, that funding or who was hosting me’.
• ‘I seek the assurance that I’m not being funded by vape companies and I won’t take money off vape companies and I would never have, or tobacco companies as well. Actually, pharmaceutical companies too… You know, I’ve explicitly asked those things before I do anything. And you know, I’ve, I get asked to talk at, at forums, which I, you know turn them down… just don’t care for it.’
• [On concerns about ASH’s links with Wodak] ‘Look, I can understand how people would want to make that look like I’m being funded by vaping companies, which is absolutely not true.’
• [Regarding ASH’s stance on vaping as a means of helping adults to quit smoking and harm reduction] ‘…our view is very much that the evidence is that vaping is substantially less harmful than smoking… we’ve seen an acceleration in the number of people who are stopping smoking and have success to stop smoking as a result. We’ve always been very clear that we want it to be available to adults to stop smoking and we’ve always wanted much stronger controls over how young people access it’.
• [On vaping areas in schools] ‘I don’t agree that there needs to be vaping areas in schools. I do think we failed quite badly in terms of not regulating or controlling vaping ‘til very late in the piece… You know, our schools are smoke- and vape-free and that’s a really good thing. But I think we have to be much, much better about supporting schools with evidence-based social competency strategies…’
• ‘I do everything I can to sustain my independence and my integrity and that’s really important… an observation world-wide with lots of colleagues worldwide who’ve done this for a very long time, now we’re in a space where we’re dealing with a spectrum of harm, and it’s no longer this sort of tobacco/no tobacco debate. There’s increasing attacks on integrity or seeking to discredit views rather than actually looking at the evidence or the science. So, you’ll understand I feel like I’m on the end of some… tenuous ways of trying to link me with some insidious force – [which I] do everything I can to categorically not do’.
• ‘Some groups of people who’ve been consolidated together get picked up and funded by commercial conflicts of interest, which is frustrating, and a symptom of having been abandoned by the health system and by others, which makes it incredibly challenging to navigate when we want to hear experiences of people but they’re being appropriated and used by industries.’

[37]  ASH’s position and response to these issues was not, in our view, adequately or fairly presented in the broadcast.

[38]  Responding to ASH’s original complaint under the balance standard, the broadcaster’s view was the broadcast ‘included relevant parts of the interview with Mr Youdan representing ASH’s views’. We disagree.

[39]  Besides a brief clip of a television interview with Youdan in Australia, showing Youdan saying ‘in New Zealand, where I’m from, we’ve seen that hundreds of thousands of people have switched to vaping from smoking’, and one brief second-hand comment that Rt Hon Winston Peters had ‘praised’ ASH in the House of Representatives, we note the following comments by Youdan in the interview were selected for inclusion in the item:

• ‘I’ve been in this 25 years and there’s levels of conflict and toxicity and nastiness I’ve never experienced in anything. We’re facing constant kind of abuse and attacks.’
• ‘I first met Alex when he came over to a workshop, a sort of symposium we did with Hāpai te Hauora at the Beehive going back a few years ago and that was when the sector was really beginning to talk about harm reduction.’
• ‘People just don’t want to be out there and have their face out there publicly because they’ve just received such horrendous treatment.’
• [Responding to ATHRA’s position on vaping areas in schools] ‘Yeah, I don’t agree with that. Yeah, I don’t represent ATHRA, I don’t talk for ATHRA.’

[40]  These comments did not fairly reflect the tenor of the overall views expressed by Youdan, including those quoted above (paragraph [36]).

[41]  We acknowledge the broadcaster’s submission that the threshold for finding unfairness to public figures or public-facing organisations is higher, because they are expected to be familiar with dealing with the media – and, in this case, working in an area which is divisive and can reasonably be expected to be subject to robust scrutiny. However, having presented the item as a ‘special investigation’ into concerns about ASH, and interviewed the ASH director at length, the broadcaster did not ensure ASH’s position was fairly included in the story. We also acknowledge Stuff’s offer (conveyed in WBD’s decision) to post Youdan’s full interview alongside the written article online but note this would not reach the same audience as the original ThreeNews broadcast.

[42]  There was public interest in the story and the concerns raised, but the interview excerpts chosen for the broadcast did not respond to the main issues or focus of the item. This undermined the public interest in the story as a whole and was unfair to ASH and Youdan, portraying them negatively without also presenting their defence to the allegations.

[43]  Accordingly, we find the potential harm to ASH and Youdan outweighed the broadcaster’s right to freedom of expression, and we uphold the fairness complaint. It would not unreasonably restrict the broadcaster’s freedom of expression to require WBD to fairly present Youdan’s responses to the concerns raised, which in turn would better serve the audience and the public interest.

Balance

The complaint

[44]  ASH identified two aspects of the programme it considered breached the balance standard:

• ASH was not provided with a right of reply to the broadcast, making it unbalanced.
• There has been no balance over time in relation to the story and its allegations around funding of the Australia trip.

The broadcaster’s response

[45]  WBD did not uphold the complaint under the balance standard, saying:

• It was ‘satisfied that appropriate viewpoints were sought and presented on the focus of the issue under discussion. The Broadcast included relevant parts of the interview with Mr Youdan representing ASH’s views. The story also included opinions of people who have different views from ASH – both the Public Health Coalition and Vape-Free Kids.’
• Even if balance was not achieved in the broadcast, WBD referred to BSA guidance that programmes cannot be perfectly balanced, and the standard allows for balance to be achieved over time, within the period of current interest in an issue. WBD considered it was possible balance could still be achieved within the period of interest, which it considered was ‘current and ongoing as the wider societal conversation around vaping continues.’ 

The standard

[46]  The balance standard⁹ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.¹⁰ When controversial issues of public importance are discussed in news, current affairs, and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest (unless the audience could reasonably be expected to be aware of those from other coverage).

Our analysis

[47]  The broadcaster has accepted the broadcast discussed a ‘controversial issue of public importance’, triggering the requirements of the standard, and we agree – particularly in the context of recent political discussions on tobacco regulation in New Zealand.¹¹ It questioned the conduct and integrity of ASH, an organisation which carries out significant public health work on behalf of the Ministry of Health and provides advice to Ministers on tobacco regulation. The discussion included alleged inappropriate links or conflicts of interest between ASH and the pro-vaping lobby or the tobacco industry.

[48]  The next question is whether the broadcaster ‘made reasonable efforts or gave reasonable opportunities’ to present significant viewpoints in the circumstances, so audiences could arrive at an informed and reasoned opinion. We do not believe WBD did demonstrate reasonable efforts.

[49]  The broadcast carried public interest, and it was in the public interest to hear ASH’s response, especially given the framing of the item as a ‘special investigation’. ASH’s viewpoint was clearly significant in the context of discussing allegations against it and concerns about its alleged links to the pro-vaping lobby.

[50]  Apart from a comment by Youdan saying he did not agree with vaping areas in schools, the broadcast did not include any other comments from ASH responding directly to the issues or allegations covered in the broadcast (despite many being available in the full interview).

[51]  WBD has not pointed us to any other coverage fairly presenting ASH’s viewpoint.¹² The second ThreeNews item broadcast on 30 July 2024 focused on a different concern about ASH’s stance on youth vaping, did not revisit the issue of alleged inappropriate links or conflicts of interest, and has also been held to be in breach of the accuracy and fairness standards (see Part 2 below).

[52]  As to whether balance is likely to be achieved over time or by other outlets, the broadcaster relies on the period of current interest being ongoing as ‘wider societal conversation around vaping’ continues. Although tobacco regulation continues to be a topic of political discussion in New Zealand, we note the broadcast in question concerned specific allegations that ASH has significant ties to the pro-vaping lobby. We do not think it can be reasonably expected that the wider conversation around vaping will at some point present ASH’s viewpoint on alleged links to the pro-vaping lobby.  

[53]  We therefore find the potential harm under the balance standard outweighed the public interest in the story. It is a reasonable restriction on the broadcaster’s right to freedom of expression to require reasonable efforts to convey ASH’s perspective on this issue, to ensure viewers were sufficiently informed.

[54]  Accordingly, we uphold the balance complaint.

Accuracy

The complaint

[55]  ASH complained the programme breached the accuracy standard because:

• The broadcast ‘inaccurately suggests the purpose of the [Australia] trip was Australian government plans to ban disposable vapes, and to promote New Zealand’s laws. Neither are accurate [nor] reflect what was provided to [Stuff].’
• ‘[T]he story failed to provide balance by singling out ASH’s relationship with Australian academics labelled as ‘vaping lobbyists’. This is misleading to the audience, suggesting ASH is exceptional for doing so… several New Zealand academics have published research with the same Australian academics, or their collaborators.’
• The broadcast stated ASH is an outlier in its views on vaping, which is ‘an unsubstantiated opinion, and one [ASH] disagree with. ASH has a position on vaping that is informed by the highest standard of evidence, and is consistent with much of the health sector, Ministry of Health and independent global experts.’
• The item implied ASH takes funding from tobacco companies.

The broadcaster’s response

[56]  WBD did not uphold the complaint under the accuracy standard because:

• ‘The Broadcast did not state or suggest that ASH has taken any funding from tobacco, vape, nicotine or pharmaceutical companies or interests. ThreeNews reported on links that public health experts had raised concerns about, and that Ben Youdan’s trip was coordinated by Alex Wodak, which is what Mr Youdan told the reporter by email.’
• ‘The broadcast did not suggest the purpose of Mr Youdan’s trip was the Australian government’s proposed ban on disposable vapes, only that Mr Youdan was in Australia ‘in February as the country was looking to ban disposable vapes’. The broadcast was not about the purpose of the trip, but about links between ASH and Dr Wodak and the concerns raised by public health experts.
• ASH’s argument that the purpose of the trip was to share New Zealand’s learnings from a regulatory policy model was ‘illustrated in the first line of the broadcast: ‘This is Ben Youdan, director of ASH – Action for Smokefree 2025 – warning Australians against their government banning vapes except under prescription.’
• It was not misleading to refer to ASH’s relationships with Australian academics being labelled as pro-vaping and the audience was not materially misled. 

The standard

[57]  The purpose of the accuracy standard¹³ is to protect the public from being significantly misinformed.¹⁴ Broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact and does not mislead. Being ‘misled’ is defined as being given a ‘wrong idea or impression of the facts’. Programmes may be misleading by omission, or by the way dialogue and images have been edited together.

[58]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was materially inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure the programme was accurate.

Our analysis

[59]  For the reasons we have already discussed in relation to the fairness and balance standards, we also found the programme overall was misleading, and the broadcaster did not make reasonable efforts to ensure it did not mislead.

[60]  In our view, the cumulative effect of the points identified in the complaint was to create an overall misleading impression of ASH, its conduct, including the Australia trip, and its position on vaping generally by omitting an adequate presentation of Youdan’s comments in response. The funding and purpose of the Australia trip, ASH refusing funding generally from the industry and being alert to potential conflicts of interest, the nature of ASH’s relationship with Dr Wodak and ATHRA, alleged inappropriate links with the pro-vaping lobby, and ASH’s position on vaping generally, were all points covered in Youdan’s email and comments to the reporter. Had more of those comments been accurately presented, we consider it would have significantly altered viewers’ understanding of the story.

[61]  We therefore find the item was materially misleading by omission and had potential to cause harm sufficient to outweigh the broadcast’s public interest and the broadcaster’s right to freedom of expression.

[62]  We recognise the broadcaster’s right to editorial discretion. We are not suggesting the story should have been told from another angle or should not have been broadcast at all. However, ASH’s viewpoint and direct responses to the issues provided important factual context – these responses were available but were left out of the broadcast. Including more of ASH’s comments to ensure the audience was sufficiently informed does not, in our view, represent an unreasonable restriction on the broadcaster’s editorial discretion.

[63]  We therefore uphold the accuracy complaint in relation to the 26 July 2024 ThreeNews broadcast.

PART 2: THREENEWS, 30 JULY 2024

The broadcast

[64]  Four days after the 26 July broadcast another, much shorter, item was broadcast on ThreeNews. The 30 July 2024 item discussed a Wellington school’s decision not to allow students to participate in ASH’s annual Year 10 survey on youth vaping, which was funded by the Ministry of Health. The item comprised an introduction followed by a live cross to the reporter, Bridie Witton, as follows (in its entirety):

Lloyd Burr: ThreeNews can reveal a Wellington high school has refused to allow its students to take part in a Ministry of Health-funded vaping survey. It’s due to concerns they have about ASH, the anti-smoking lobby group which conducts the survey. Bridie Witton joins us now with the details, and Bridie what more can you tell us?

Witton: Kia ora, Lloyd. So, every year ASH does a survey of Year Ten students across the country. So, these are 14–15-year-olds. It’s a massive survey and it gets tens of thousands of dollars from the Ministry of Health in order to do so. But ThreeNews has obtained this email from [the school] saying it does not want to participate in the survey until ASH acknowledges the harm that vaping is causing for young people. Says this harm is significant and totally separate to the harm that smoking causes. It says, quote, ‘principals have spoken out on this issue in the media, but I have not heard you, ASH, do the same’. We put this to ASH Director, Ben Youdan, who said he can only recall three schools in the past seven years who have asked for more information about its stance on vaping, and only one school which decided against participating in the survey. But of course, the organisation’s stance on youth vaping is that young people, most young people who vape are not addicted, they are simply experimenting.

Burr: Interesting stuff, thank you very much for that. That is Bridie Witton, live at Parliament.

Summary of the complaint

[65]  ASH complained the broadcast was ‘extremely misleading’ by omitting important information and presenting the story as current or recent. It failed to mention the relevant email from the school was from 2021, and misrepresented ASH’s position on youth vaping, which had been provided to the reporter.

[66]  WBD addressed the complaint under the accuracy standard and did not uphold it, noting it was the reporter’s first live cross in a television broadcast format and she had forgotten to mention the email was from 2021 in this high-pressure environment. It considered that ‘even without the 2021 date included in the live cross, the audience was not materially misled nor lacking in context.’

[67]  On referring the complaint to the Authority, ASH also nominated the fairness standard as having been breached. For reasons explained below, we consider this additional standard was reasonably within the scope of the original complaint and within our jurisdiction to consider.

[68]  Submissions from both the complainant and the broadcaster are discussed in our consideration of the two nominated standards below.

Our analysis and findings

[69]  We have watched the broadcast and read the correspondence listed in the appendix.

[70]  As with the first broadcast, we considered the important right to freedom of expression and weighed the level of value and public interest in the broadcast against the potential harm caused.

[71]  The second broadcast, in our view, carried significantly less public interest than the first, meaning the threshold for finding a breach of standards was also lower. We found this broadcast created a misleading and unfairly negative impression of ASH and Youdan, by omitting to include important contextual information and a fair presentation of ASH’s position, which had been provided by ASH before the interview. This item demonstrated a continuation of the narrative about ASH that was set up by the 26 July broadcast: favouring facts and perspectives that supported that narrative while omitting a fair presentation of ASH’s defence. It had the potential to cause further damage to the integrity and reputation of ASH, its board, and Youdan, and to undermine public trust in ASH as an organisation working in public health.

[72]  We concluded this potential harm outweighed the broadcaster’s freedom of expression and justified our intervention. The failure to include relevant and important information, and to adequately include comment from ASH that responded to the thrust of the story, demonstrates shortfalls in editorial processes and oversight on this occasion, in breach of the accuracy and fairness standards.

Accuracy

The complaint

[73]  ASH said the broadcast left out important information about when the school raised concerns with ASH, and misrepresented ASH’s position on youth vaping:

• The 2021 email was presented as current, including the school’s comment that they have not heard ASH speaking out about youth vaping, despite the reporter knowing it was from three years ago.
• ASH had informed the reporter that since 2021, ASH has repeatedly spoken out against youth vaping, including presenting evidence-based actions. ‘Our response to Bridie Witton was very clear that we have seen excellent engagement by schools when we have participated in seminars and workshops. All that work has been since 2021.’ ASH also informed Witton they have successfully advocated for youth prevention measures such as banning disposable vapes.
• ASH had told the reporter in writing that of the three schools that had contacted ASH, two of them had participated after understanding ASH’s position. This was summarised in the broadcast by simply saying three schools had contacted ASH, failing to mention two of those schools had later participated. Audiences would interpret this as three schools not participating, a misrepresentation through omission.
• ‘ASH provided our evidence-based position on youth vaping to Bridie Witton. The summary of this was reduced to a vague and misquoted comment about “addiction”. The story omits the evidence-based actions ASH has called for, that are consistent with many in public health, in favour of misquoting our position on nicotine dependence…’
• The reference to ASH’s comments about the majority of young people not being addicted to vapes, taken out of the context of discussions about successful engagement ASH has had with schools through seminars and workshops, suggests ASH is unconcerned about young people’s use of nicotine. The statement provided to Stuff clearly stated a proportion of young people are dependent or addicted and need support.
• ASH considers WBD’s response that the date was accidentally missed by the reporter is an admission that it was an important piece of information that was intended to be included in the broadcast.
• ‘We accept that accidents happen with nerves, but such a key piece of information should have been put into the introduction of the story, especially if the editors knew that this was the reporter’s first live cross and important information vital to the story shouldn’t be missed out.’

The broadcaster’s response

[74]  WBD did not uphold the complaint under the accuracy standard because:

• The story was the reporter’s first live cross into a television broadcast. Although the script she had written included the fact the letter was from 2021, in the pressure of a live TV environment she forgot to mention it.
• WBD considered even without the 2021 date included in the live cross, the audience was not materially misled nor lacking in context.
• The reporter’s confidential source had informed her that their concerns about ASH’s views on vaping were current, therefore the audience would not be materially misled by the omission of the 2021 date.
• The fact two of the other schools joined the survey was conveyed in the reporting.
• ASH’s position¹⁵, which WBD said had been repeated in press releases¹⁶, is that ‘most young people who vape are not dependent on nicotine, but are experimenters, or occasional users, vaping weekly or less. Some will experience cravings that start to interrupt their thinking, and a minority will struggle with withdrawal to a point that it affects daily functioning’. This was represented accurately in the live cross with the reporter saying, ‘the group’s longstanding position is that it doesn’t believe most young people who vape are addicted, it says most are experimenting’.

Our analysis

[75]  The wording and objectives of the accuracy standard are outlined in Part 1 at paragraphs [57]-[58] above. For the purposes of this second complaint, the relevant limb of the standard is that which requires the broadcaster to make reasonable efforts to ensure news programmes do not mislead. Being ‘misled’ is defined as being given a ‘wrong idea or impression of the facts’. Programmes may be misleading by omission, or by the way dialogue and images have been edited together.¹⁷

[76]  The crux of the complaint is that the broadcast was misleading by:

(a)  reporting the school had ‘refused to allow its students to take part’ in ASH’s Year 10 Survey as if that was current, rather than ‘a snapshot from four survey cycles ago’

(b)  suggesting three schools had refused to take part (when two had ultimately decided to participate), and

(c)  misrepresenting ASH’s position on youth vaping by omitting it has repeatedly spoken out against youth vaping since 2021 and reducing its position statement to a ‘misquote’ about addiction which suggested ASH is unconcerned about youth vaping.

[77]  We do not consider the broadcast was misleading or breached the standard in respect of point (b). Witton stated during the live cross that Youdan ‘can only recall three schools in the past seven years who have asked for more information about its stance on vaping, and only one school which decided against participating in the survey’. In our view, this adequately conveyed the other two schools had decided to participate.

[78]  We do, however, agree with the complainant that the broadcast was materially misleading in respect of points (a) and (c).

The school ‘has refused to take part’ in the Year 10 Survey

[79]  ASH’s email to the reporter on 29 July, in response to the reporter asking for comment on the school’s 2021 email, said:

Schools don't 'opt out'. The survey invites 600 eligible schools to participate every year, and they opt in. They do not opt out. In the last 7 years I have worked on the survey I recall 3 schools getting in touch about where ASH stands on vaping to help them decide about participating. We always follow up, and two of those I spoke with participated fully in the survey after taking the time to understand the facts and our actual published position on youth vaping. Likewise, we have seen excellent engagement from schools who have participated in evidence-based seminars and workshop[s] we have run for them. Around half of eligible schools participate, and half of eligible students, making this the largest survey of youth smoking and vaping in NZ. The survey is run anonymously and using validated and cognition tested questions.

[80]  The item materially misled audiences that the school’s refusal to take part in the vaping survey was a recent, ‘breaking news’ type event due to the framing and presentation of the broadcast – when in fact the email on which the item was based was sent to ASH in 2021. This impression was supported by the live cross format and the use of Parliament as a background, which implied the issue was serious and current; live crosses are often used to discuss breaking or current news, or a new development in an ongoing story. The language used in the broadcast also supported an impression it was a new or current development, for example, ‘ThreeNews can reveal a Wellington high school has refused to allow its students to take part in a Ministry of Health-funded vaping survey.’

The item misrepresented ASH’s position on youth vaping

[81]  In Youdan’s email to the reporter on 29 July 2024, he provided a copy of ASH’s published position statement on youth vaping¹⁸:

I have attached our actual position on youth vaping. You’ll find it fully referenced, and largely consistent with other evidence-based groups. I trust any reference to ASH’s stance on youth vaping refers to our published and referenced position, and not on what others may wish to interpret it as.

[82]  The broadcast reported (our emphasis):

[The school said in the email] it does not want to participate in the survey until ASH acknowledges the harm that vaping is causing for young people. Says the harm is significant and totally separate to the harm that smoking causes. It says, quote, ‘principals have spoken out on this issue in the media, but I have not heard you, ASH, do the same.’ We put this to ASH Director Ben Youdan, who said he can only recall three schools in the past seven years who have asked for more information about its stance on vaping, and only one school which decided against participating in the survey. But of course, the organisation’s stance on youth vaping is that young people, most young people who vape are not addicted, they are simply experimenting’

[83]  The quoted response from Youdan referenced the school’s decision to not participate in the survey. However, the final sentence chosen to convey ASH’s stance on youth vaping did not reflect the response ASH provided. ASH’s position statement on youth vaping provided to the reporter states:

• ‘Action for Smokefree 2025 (ASH) shares concerns about increasing youth vaping in Aotearoa. We do not want young people, most of whom have never smoked, to vape.’
• ‘The preferred approach is to prevent young people from starting to vape in the first place, and at the same time supporting young people who vape to stop.’
• ‘New Zealand faces the challenge of balancing the public health benefits of encouraging people who smoke (mostly adults) to quit smoking through switching to vaping while discouraging others, particularly young people and people who have never smoked, from ever starting to vape. We strongly discourage punitive approaches or actions which ostracise young people. Decades of evidence from smoking, drug and alcohol interventions show that these approaches can increase harm by making the behaviour covert and discouraging young people from seeking help’.

[84]  The reporter was also aware, from the earlier interview with Youdan, of ASH’s work advocating successfully for ‘ending the widespread sale of disposable and single-use vapes, which are cheap and a low barrier to entry into vaping for young people…’

[85]  The statement chosen for the broadcast did not reflect ASH’s position adequately and had the effect of suggesting ASH was ‘unconcerned’ about youth vaping. It materially misrepresented ASH’s position on youth vaping as outlined in the statement provided to the reporter. Excluding a fair presentation of ASH’s response to the issues and including one sentence that made ASH look ‘worse’, would have significantly altered viewers’ understanding of the story.

Reasonable efforts

[86]  Having found two aspects of the broadcast were materially misleading, the next question is whether the broadcaster made reasonable efforts to ensure the accuracy of the programme.

[87]  As with the first broadcast, we do not consider WBD has demonstrated it made reasonable efforts.

[88]  We have considered the following relevant factors:¹⁹

• The source of material for the broadcast
  • The email that formed the basis for this item was sent in 2021, despite being presented, misleadingly, in our view, as ‘breaking news’.
  • The broadcaster said a confidential source had confirmed the school’s concerns about ASH and the Year 10 survey remained ‘live’ or ‘current’, despite the original email having been sent in 2021. We requested further information about the source and what they told the reporter and were advised the source is an employee of the school. However, we would expect the reporter to have contacted the school directly to confirm its current position or to at least be able to say the school was given an opportunity to comment.
• Whether the broadcast was live or pre-recorded
  • Despite being presented as current or breaking news, and in the format of a live cross which supported that currency, we do not consider there was any particular time pressure associated with this story that might mean there was insufficient time to adequately fact-check the information or script the introduction to ensure it included important factual context like the date of the email.
  • WBD advised several sub-editors reviewed the live cross script in advance meaning there was an opportunity to make a judgement about what was important to capture in the item and add that to the introduction. We consider adequate editorial oversight should have prevented such a mistake.
• Whether there was some obvious reason to question the accuracy of the programme content before it was broadcast
  • We consider it was obvious the 2021 date of the email was a material fact. If there was any concern this might not be captured in the live cross, it should have been written into the newsreader’s introduction.
• Whether the broadcaster sought and/or presented comment, clarification or input from any relevant person or organisation
  • The reporter contacted ASH for comment and ASH provided a response as described above. While the statement did include the ‘addiction vs experimentation’ point referred to in the broadcast, the selection of that statement as ‘representative’ of ASH’s position overall was misleading and left viewers uninformed. It did not directly address the thrust of the item, that ASH has yet to acknowledge the harm vaping causes to young people, and again portrayed ASH in a negative light, despite a wealth of other information about its stance on youth vaping being provided to the reporter in the position statement.²⁰ While comment was duly sought, again, as with the first broadcast, relevant comment has not been presented in the item.
  • As we have said above, we would expect the reporter to have contacted the school directly for comment, rather than relying solely on a 2021 email and comment from a staff member whose views may not represent the official position of the school.
• The extent to which the issue of accuracy was reasonably capable of being determined by the broadcaster 
  • The broadcaster had all relevant information needed to ensure the item was accurate. It was the selection of information for broadcast that created the inaccuracy.
• The effect of any subsequent or follow-up coverage
  • Despite acknowledging the 2021 date was omitted by mistake, there does not appear to have been any follow-up or subsequent correction by WBD or Stuff. It appears to be disputed whether the item was made available online and therefore whether there was an opportunity to correct it. ASH said it was ‘front page’ on Stuff for a week; when we asked WBD, it advised the live cross was not put on Stuff’s website. Although not on WBD platforms, the video version of the broadcast remains available on two other online articles from Stuff’s subsidiary imprint.²¹
• The level of the broadcaster’s editorial control over the content
  • There is no suggestion the broadcaster lacked the editorial control necessary to ensure accuracy. We note the broadcast in question was in the early weeks of production of Stuff’s ThreeNews bulletin. The new production model may have required an adjustment period from reporters and broadcasters getting used to new ways of working. However, we do not consider this excuses shortfalls in editorial oversight.

[89]  We consider the likely harm caused by the broadcast was significant enough to warrant our intervention and we uphold the complaint under the accuracy standard. It should have been straightforward to ensure relevant factual context and accurate representation of ASH’s position were included, and we do not consider this finding unreasonably restricts the broadcaster’s freedom of expression.

Fairness

The complaint

[90]  On referral to the Authority, ASH submitted the broadcast was unfair because the video remained on the Stuff website for at least a week on its front page, there was no attempt to correct the mistake by adding a new introduction with the date included, nor was there any follow-up or other correction on ThreeNews. ASH said any reasonable viewer watching the story would have thought the school’s decision not to take part in the survey had just happened. ASH considered this was totally unacceptable and led to its reputation being questioned.

Jurisdiction to consider the fairness standard

[91]  Under section 8(1B) of the Broadcasting Act 1989, the Authority can only consider complaints under the standard(s) raised in the original complaint to the broadcaster. The High Court has clarified that the Authority should not ‘enquire beyond the terms of complaint’, but that in certain circumstances²²:

… it is permissible [for the Authority] to fill gaps… or cross boundaries between Code standards… but only if these things can be done within the wording, reasonably interpreted, of the original complaint, and if a proper consideration of the complaint makes that approach reasonably necessary…

[92]  Although ASH’s original complaint did not explicitly refer to the fairness standard in the Code of Broadcasting Standards, we consider the fairness standard can be reasonably implied from the wording of the complaint. While it was focused on omission of important facts, the wording of the complaint did refer to the broadcast misrepresenting ASH’s position, as conveyed in the position statement provided to the reporter, and, in the concluding summary, referred to that misrepresentation impacting the ‘integrity of staff and Board’ at ASH. Allegations of undue harm to dignity and reputation of individuals or organisations are the focus of the fairness standard. The original complaint also referred to ‘Media Council Principle 1. Accuracy, Fairness and Balance’.

[93]  We consider implying the fairness standard is reasonably necessary to properly address the issues raised in the complaint. The accuracy and fairness standards have different objectives and protect against different categories of harm. We do not consider the accuracy standard on its own – which is targeted at preventing harm to the general audience from being misled – can adequately address the potential harm to ASH’s and Youdan’s integrity and reputation. That harm is more appropriately addressed under the fairness standard which protects programme participants.

[94]  We therefore find the fairness standard was within the scope of the original complaint and is within our jurisdiction to consider in this decision.

The broadcaster’s response

[95]  Invited to comment under the fairness standard, WBD stated:

In the original complaint dated 31 July, all of the concerns noted about the 30 July broadcast were that the broadcast omitted facts and was misleading. On this basis, the WBD Committee considered the complaint under the Accuracy standard.

In its initial decision to the complainant dated 26 August, the Committee acknowledged the omission of the 2021 date in the live cross but maintained the audience was not materially misled by that omission; the decision explains the reasons for reaching that conclusion. On the basis that no breach of the Accuracy standard was found, we maintain the Broadcast was not unfair to ASH.

Our analysis

[96]  For reasons similar to those outlined in Part 1 of our decision relating to the first broadcast, we found the 30 July 2024 broadcast was unfair to ASH and to Youdan:

• The broadcast portrayed ASH and Youdan unfairly, by omitting relevant factual context and a fair presentation of their response.
• ASH was offered and took the opportunity to provide comment and ASH’s public position statement to the reporter, but this was not fairly presented in the broadcast. The only quote selected to convey ASH’s stance on vaping did not respond directly to the issue that was the focus of the item, and made ASH look worse.
• Viewers were not provided with any additional relevant context or aspects of ASH’s position on youth vaping, despite that being available in the statement provided to the reporter.

[97]  The overall effect of the broadcast was that viewers were unable to reach an informed opinion and would have been left with an unfairly negative impression of ASH.

[98]  We consider the potential harm to the reputation of ASH, and the integrity of ASH’s board and staff, was greater than the level of public interest or freedom of expression value in reporting that one school, out of 600 invited, had in 2021 refused to participate in the Year 10 vaping survey. As we have said already, it is not our role to dictate which stories or angles should be prepared for broadcast. However, it is reasonable to expect WBD to ensure programme participants are treated fairly, and in this case to ensure relevant factual context, and ASH’s position, were fairly presented to prevent undue harm to ASH’s and Youdan’s reputation.

[99]  Accordingly, we uphold the fairness complaint in relation to the 30 July 2024 broadcast.

For the above reasons the Authority upholds the complaints that:

• The broadcast by Warner Brothers Discovery Ltd of an item on ThreeNews on 26 July 2024 breached Standards 5 (Balance), 6 (Accuracy) and 8 (Fairness) of the Code of Broadcasting Standards in New Zealand; and
• The broadcast by Warner Brothers Discovery Ltd of an item on ThreeNews on 30 July 2024 breached Standards 6 (Accuracy) and 8 (Fairness) of the Code of Broadcasting Standards in New Zealand.

[100]  Having upheld the complaints, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We issued our provisional decision and invited submissions on orders from the complainant and the broadcaster.

The complainant’s submissions on orders

[101]  ASH welcomed the Authority’s decision and considered it to be fair and accurate. Commenting generally on the decision, ASH said:

As a long running health NGO with a public profile and entrusted to deliver research using public money, ASH should face appropriate scrutiny. We do not dispute the media’s right to ask questions and hold us to account. To this end we make every effort to be transparent in our practice, and in response to scrutiny. We believe we demonstrated this in our detailed responses to the [journalist’s] questions, both written and verbally. …our complaints stemmed from reporting and editorial decisions made by the broadcaster despite having this information, and the lack of disclosure about the nature of the story and purpose of interviews. …The result was the broadcast of two stories that were unbalanced, inaccurate and an unfair representation of ASH. The outcome being damage to the reputation of ASH and its Director, and the public being misled.

[102]  Describing in more detail the impact the broadcasts have had on ASH and its Director, ASH said:

• ‘We feel the cumulative negative impression made of ASH and Mr Youdan has been substantial. The two stories have remained published online since July 2024, and as of 10 February remain online on Stuff, and/or associated media. The story was shared by public health groups in media updates, and resulted in ASH having to do significant corrections across the sector we work in. Since the broadcasts, ASH continues to manage and mitigate inaccurate perceptions of our positions. This has included having to reassure funders and donors that the story was inaccurate and did not portray our actual position on youth vaping. The first story’s portrayal of Mr Youdan as being associated with vaping industry money was also inaccurate and extremely damaging to his longstanding professional reputation. The second story put a reputable national survey of youth smoking and vaping behaviour and attitudes at risk. Potential participating schools were concerned that ASH had different positions to the one they understood as correct. This has required efforts by ASH to remedy these misconceptions that are ongoing.’
• ‘The subject matter of the story means there is a sustained and ongoing impact of the stories on ASH and Mr Youdan. …We agree with the Authority’s view that it cannot be reasonably expected that the wider conversation around vaping will at some point present ASH’s viewpoint on alleged links to the pro-vaping lobby. We also agree the vaping discussion is ongoing and we consider that it has high public interest. For this reason, the stories remaining published as they stand is likely to increase the harm to ASH and Mr Youdan over time. Anyone seeking to research our position, including schools engaged in our survey will still be exposed to what is deemed to be an unbalanced, unfair and inaccurate portrayal of ASH’s position.’

[103]  Outlining its views on the seriousness of the breaches and the broadcaster’s conduct, ASH said:

• On reviewing past Authority cases, the findings of this decision appear rare in upholding breaches of three standards in relation to the first story, and two in relation to the second: ‘Whilst there is precedent for orders when one or two standards are breached, there is limited precedent for this number of breaches across a series of broadcasts as in this case. …the repeated nature of the breaches must be a consideration in deciding consequences.’
• ‘The breaches on two occasions felt particularly egregious as concerns were raised with the journalist at every opportunity.’
• ‘In previous Authority decisions, the response of the Broadcaster has informed the decision on orders [typically where a broadcaster has acknowledged the breach upfront]. …In this case WBD have systematically denied breaching any standards. …WBD acknowledged a mistake in omitting important context [in the 30 July item]. Despite this… WBD were unwilling to make any correction or amendment and have continued to claim that no standards were breached. This has informed our views on potential orders as we feel they need to reflect both the scale of the breach, and that WBD have failed to even correct a major editorial mistake they admit to. … It concerns us that WBD are behaving in a way that considers the potential repercussions of breaching standards as inconsequential. Therefore we fully endorse the strongest possible orders.’
• ‘Although WBD offered to publish the complete recorded interview with the reporter [for the first broadcast], we do not consider this to be a useful response. It still fails to address the fairness, accuracy and balance of the story given that our complaint stems from the fact we were not informed of the angle. It would lack the editorial bias that accompanied the story that was framed as a ‘special investigation’ into ASH. We agree with the Authority that it would not have an equal audience.’
• ASH maintained WBD’s responses on two points were untrue:
  • ‘It is very disappointing that WBD continue to claim full disclosure that the interview was for TV news. We dispute this in the strongest possible terms. …We feel that WBD’s ongoing insistence that they followed process despite evidence to the contrary justifies orders that will encourage better process and transparency in their future reporting and editorial policies.’
  • ‘The second claim we believe to be untrue is …that the live cross was never published on the Stuff website. …The live cross was published on www.stuff.co.nz/watch for several days. The video was embedded on the page. On June 30th, this link was shared by Mr Youdan with the ASH Board to update them [providing a screenshot of the relevant email]. Regardless… it also remains online on Stuff’s subsidiary imprint. Whilst it is an issue for us that it remains online, it is a bigger concern that WBD would claim so unambiguously in writing to the Authority that the live cross was not put on their website despite evidence to the contrary.’

[104]  Finally, on the question of what orders would be appropriate in these circumstances, ASH submitted:

• ‘We agree with the Authority that the media have a right to editorial freedom, and we do not wish to recommend orders that might be considered to limit that freedom. However, we do support orders that help maintain appropriate standards of reporting, and accountability for not meeting those standards.’
• ‘Our main objective… is to rectify the harm done to ASH, our reputation and that of Mr Youdan. This includes ensuring audiences are aware of the problems with the stories and how they fall short of standards and therefore mislead the audience about ASH’s position.’
• ‘Whilst an ideal outcome would be the complete removal of the stories, we understand this is outside the mandate of the Authority. Therefore our recommendations also consider how to ensure that all existing and future audiences are informed about the limitations of the reporting and stories. Although the full impact on ASH cannot be undone, we hope that the proposed remedies can undo some of the damage and mitigate against ongoing misrepresentation of ASH and our Director.’
• Accordingly, ASH would like:
  • A summary of the Authority’s findings to be broadcast with the same prominence as the original stories on ThreeNews, which should: acknowledge unambiguously the breaches of three standards and the misleading portrayal of ASH; refer viewers to the full decision; and also be made available online with the same prominence as the original stories (including on www.stuff.co.nz/watch).
  • Corresponding written summaries of the Authority’s findings to be published permanently at the head of online publications of the story (after the headline and before any video or text: ‘We would not be satisfied for the summary to be placed at the end of the story as this significantly reduces its prominence’).
  • A written summary of the findings to be published on the main www.stuff.co.nz homepage for as long as the Authority can mandate.
  • A summary of the Authority’s rulings to be embedded in online video content of both stories: ‘Both stories remain online and shared across social media platforms. We strongly recommend that the video content is edited to include subtitled text, scrolling text or a watermark noting that the Authority has ruled the stories breached broadcast standards and a summary of the ruling.’
  • A full apology to ASH and Youdan broadcast on ThreeNews alongside the findings of the Authority, recognising the story was misleading and misrepresented ASH and Youdan.
  • A full apology to ASH and Youdan on the www.stuff.co.nz homepage alongside the findings of the Authority.
  • An apology from the journalist (which it recognised is outside the Authority’s powers to order).

[105]  ASH noted it had not incurred any legal costs (although preparing the complaint internally had ‘diverted from our core business and impacted our work’ as a small charity). It did incur modest costs, less than $2,000, engaging an external media consultant to assist with its responses to WBD and the complaints process.

The broadcaster’s submissions on orders

[106]  WBD accepted the Authority’s decision, saying:

We accept the Authority’s decision, acknowledge this was a legitimate breach and would like to assure the Authority that both Warner Bros. Discovery and Stuff take this matter seriously.

We would like to take the opportunity to sincerely apologise to ASH and Ben Youdan for any distress the broadcast may have caused.

Stuff acknowledges the lack of editorial oversight in this instance. The editorial team will apply the guidance from the Authority's decision and consider the decision will provide useful learnings for the team.

[107]  On the question of appropriate orders, WBD submitted that ‘publication of this decision is sufficient as it publicly notifies the breach. Given the level of media attention and commentary this type of decision can and likely will attract, we maintain that the resulting media coverage of the Authority's decision significantly adds to the penalty.’  

Authority’s decision on orders

[108]  In determining whether orders are warranted and the type of order to impose, we consider the following factors:

• the seriousness of the breach and the number of upheld aspects of the complaint 
• the degree of harm caused to any individual, section of society or the audience generally 
• the objectives of the upheld standard(s) 
• the attitude and actions of the broadcaster in relation to the complaint, for example, whether the broadcaster upheld the complaint and/or took mitigating steps; or whether the broadcaster disputed the standards breach and/or aggravated the breach and any harm caused 
• whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters 
• past decisions and/or orders in similar cases. 

[109]  Drawing from our findings above, we consider the following factors are relevant in this case:

Aggravating factors

•  We have found the 26 July 2024 broadcast breached three standards, and the 30 July 2024 broadcast breached two standards. As noted in the complainant’s submissions, it is unusual for breaches of all the nominated standards to be upheld by the Authority.
• This, as well as the overall impact of the two broadcasts (which misrepresented ASH and Youdan and clearly carried the potential to cause harm to their integrity and reputation), places the breaches at the higher end of the spectrum.
• The broadcaster did not uphold either complaint in the first instance. Nor did it take any mitigating action despite acknowledging a mistake in the second story. The broadcaster did not apologise to ASH or Youdan until the stage of making submissions on orders to the Authority.
• To date, there has been no public acknowledgement of the breaches for ThreeNews’ or Stuff’s audiences. Publication of our written decision will not necessarily serve this purpose, nor, as previously mentioned, would merely publishing Youdan’s full interview alongside the 26 July item online.

Mitigating factors

• WBD has nevertheless now accepted our decision and acknowledged ‘this was a legitimate breach’, assured the Authority that WBD and Stuff take it seriously, apologised to ASH and Youdan in its submissions, and advised the editorial team will take on board the Authority’s guidance.
• Prior to this case, the last decision upholding an accuracy, balance or fairness complaint in relation to a news broadcast on channel Three was issued in January 2024 (regarding an item broadcast on 13 June 2023).²³

Broadcast statement – section 13(1)(a)

[110]  We agree with the complainant that ordering the broadcast of a statement summarising the upheld aspects of the decision, is an appropriate response to the breaches in this case. A broadcast statement will provide a public denunciation of the breaches, censure the broadcaster, and help remedy the harm caused by the broadcast, in particular to ASH’s and Youdan’s reputations – in the same forum and for a similar audience, which will not necessarily be achieved by our decision and any resulting publicity alone.

[111]  Consistent with the Authority’s usual practice, the broadcaster will draft a statement summarising the upheld aspects of our decision, for approval by the Authority. Noting we have upheld breaches of standards in two separate broadcasts, we consider in this case the statement should be broadcast at a similar time and on the same day of the week as the second broadcast (6pm Tuesday), to reach the broadest audience.

[112]  While the Authority has the power to require a broadcast statement, which may include an apology, we do not have the power to order the broadcaster, or the reporter to apologise to the complainant.²⁴ We note the broadcaster has now, only at the stage of making submissions on orders to the Authority, ‘sincerely apologise[d]’ to ASH and Youdan, so WBD may consider adding a similar apology into the draft broadcast statement in recognition of ASH’s requested remedies.

Online statement – section 13(1)(a)

[113]  We also agree with the complainant that in principle, an online statement would be warranted, to achieve some remedy against the ongoing availability of the content online, recognising, however, this content is on sites controlled by Stuff, rather than the broadcaster WBD.

[114]  The 26 July 2024 story remains available on Stuff’s website.²⁵ While the parties still dispute whether the 30 July 2024 video was initially made available on Stuff’s website, we consider ASH has provided compelling evidence for its position, showing Youdan emailed the ASH Board with a link to Stuff’s ‘Latest news videos’ at 8.56pm, less than three hours after ThreeNews aired that evening. Regardless, the 30 July 2024 item remains embedded in two articles in Stuff’s subsidiary imprint.²⁶ We agree with the complainant that their ongoing availability carries the clear potential to compound the harm to ASH and Youdan caused by the original broadcasts.

[115]  Upon asking Stuff to confirm its position regarding the ongoing availability of the content found to be in breach, we were advised, ‘Stuff is a responsible publisher and is waiting on the final decision from the BSA. Once we see that decision we’ll make a final call on what we do with the content on site.’ We do not have the power to order Stuff to remove the content or publish a statement, as our powers extend only to WBD as the broadcaster. However, we would expect, to the extent reasonably within its control, that WBD could arrange with Stuff to publish a statement prominently alongside each Stuff piece for as long as it remains available, or alternatively, endeavour to have the content removed. Any statement should acknowledge the content has been found by the Authority to breach broadcasting standards, with a summary of the upheld aspects and carry a link to this decision.

[116]  Given the ongoing damage caused to ASH’s and Youdan’s reputations, we consider this would be a reasonable response to the breaches of multiple standards and an appropriate remedy.

[117]  We do not consider it necessary, and we do not have the jurisdiction, to also require publication on Stuff’s main page or ‘Latest news video’ page, which will not have the same meaning in the absence of the relevant content, or editing of the online video on Stuff’s platforms as requested.

Costs to the complainant – section 16(1) 

[118]  Under section 16(1) of the Broadcasting Act 1989, ‘the Authority may, in any proceedings, order any party to pay to any other party such costs and expenses, including expenses of witnesses, as are reasonable, and may apportion any such costs between the parties in such manner as it thinks fit.’

[119]  Costs awards are ordinarily to recompense in part a successful complainant for legal costs which have been incurred but may be costs other than legal fees incurred during the complaints process.²⁷ In all but the most exceptional cases, the most that is likely to be recoverable in an award of costs is a contribution to the costs actually incurred.²⁸

[120]  ASH did not incur legal costs in this case, but said it incurred modest costs engaging an external media consultant to assist with its responses to WBD and the complaints. It has provided us with itemised invoices totalling $1,710.62 including GST for time spent on the original complaint and escalation of the matter to this Authority.

[121]  The factors to be considered in assessing whether costs are appropriate, and in what amount, include:²⁹

• the complexity of the issues raised
• the number of issues raised
• the complexity of the factual background
• the number of substantive submissions that needed to be made
• whether the proceeding required resolution of any interlocutory or procedural issues
• the need for the complainant to have incurred costs to the extent that costs were incurred or at all
• the amount of costs incurred
• the nature and importance of the complaint to the complainant
• the public interest in the complaint.

[122]  We consider the complainant’s costs were very modest given the gravity of the breaches and entirely reasonable to incur given the potential harm to ASH’s reputation and public perceptions of its work. As we have said, the breaches are at the higher end of the spectrum of seriousness; complaints were made about two separate broadcasts, under three standards in total, with breaches of all three standards upheld by us. The complaints are clearly of great importance to the complainant, and of high public interest given ASH’s public health work.

[123]  Given these factors, we consider this case falls within the exceptional category where ASH should be reimbursed in full, and we award $1,710.62 in costs to the complainant.

Costs to the Crown – section 16(4)

[124]  Costs to the Crown (up to $5,000) are usually ordered where a broadcaster’s conduct resulting in a breach of standards is at the medium-to-serious end of the spectrum, and the Authority determines a punitive response is required.

[125]  Reviewing past comparable cases where such an order was made in respect of serious reputational damage caused to a complainant and breaches of the accuracy, fairness and/or balance standards, we noted:

• The Authority made an order of $1,000 costs to the Crown in another case concerning two news broadcasts, where inaccuracies affected a complainant’s reputation, who similarly had a public profile as a local councillor, and the complainant was not given a fair and reasonable opportunity to respond. In that case, the broadcaster was reasonably capable of addressing the complainants’ concerns in follow-up broadcasts, but appeared to be dismissive of the complainant’s concerns and did not acknowledge the issues initially raised.³⁰
• The Authority ordered $1,000 costs to the Crown in relation to a story on Fair Go, finding the programme was inaccurate and misleading in its portrayal of the issues, the complainants were portrayed unfairly, and their views were not fairly reflected in the programme.³¹
• An order of $3,000 costs to the Crown was made in relation to a current affairs item and promos that suggested the complainant’s recycling company premises were unsanitary and rat-infested, in breach of the accuracy and fairness standards.³²
• In the most serious of cases, an order of $5,000 costs to the Crown was made for each of two broadcasts ($10,000 total) that incorrectly alleged the complainant’s café food was contaminated, also upheld under the accuracy and fairness standards.³³

[126]  Given our clear view these two ThreeNews broadcasts fell short of the standards the public expects of New Zealand broadcasters, with a serious impact on the reputations of ASH and Youdan, we consider the conduct and seriousness of the breaches justify an award of costs to the Crown in this instance. A punitive response is required to hold the broadcaster to account, deter future non-compliance, confirm our expectations around an appropriate level of editorial oversight, and ensure fairness to programme participants. Notwithstanding that this occurred in the early days of Stuff’s ThreeNews production, the failures in editorial processes and in ensuring fair, balanced and accurate reporting in not one, but two broadcasts, representingcore journalistic standards expected of both broadcast and online news outlets, ought to have been foreseeable and prevented. As we have discussed in our findings above, these stories appeared intentionally slanted against ASH and the broadcaster persisted with that narrative despite having information to the contrary, causing serious damage to the reputation of a charitable entity and its director.

[127]  For these reasons, and comparing the past cases outlined above, we consider a costs order in the amount of $3,000 is appropriate.

Orders

1.  Under section 13(1)(a) of the Act, the Authority orders Warner Brothers Discovery Ltd: 

• to broadcast a statement. The statement shall: 
  • summarise the upheld aspects of the Authority’s decision in relation to the 26 and 30 July 2024 ThreeNews broadcasts
  • be approved by the Authority prior to being broadcast 
  • be broadcast during ThreeNews on the same day of the week and at the same time as the second broadcast (Tuesday at 6pm)
  • be broadcast within one month of the date of this decision.
• to the extent reasonably within WBD’s control, also liaise with Stuff to publish a statement online, on the 26 July 2024 story on stuff.co.nz and embedded video of the 30 July 2024 story on The Press and The Post online. That statement shall:
  • note the Authority upheld a complaint that the items breached the accuracy, balance and/or fairness standards
  • provide a link to where the full decision can be found online
  • remain displayed online for as long as the stories remain available
  • be published within one month of the date of this decision
  • be approved by the Authority prior to publication.

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 and the complainant of the manner in which the above orders have been complied with.

2.  Under section 16(1) of the Act, the Authority orders Warner Brothers Discovery Ltd to pay to the complainant costs in the amount of $1,710.62.

3.  Under section 16(4) of the Act, the Authority orders Warner Brothers Discovery Ltd to pay to the Crown costs in the amount of $3,000 within one month of the date of this decision. 

The orders for costs are enforceable in the District Court | Te Kōti-ā-Rohe.

Signed for and on behalf of the Authority

Susie Staley
Chair
26 March 2025

Appendix

The correspondence listed below was received and considered by the Authority when it determined these complaints:

Part One: ThreeNews, 26 July 2024

1  ASH’s formal complaint – 31 July 2024

2  WBD’s response to the complaint – 26 August 2024

3  ASH’s referral to the Authority – 13 September 2024

4  WBD providing correspondence between reporter and ASH – 10 October 2024

5  WBD providing full interview – 15 October 2024

6  ASH confirmation of no further comment – 21 October 2024

7  WBD providing comment from reporter confirming no notes taken of initial phone call with ASH – 6 November 2024

Part Two: ThreeNews, 30 July 2024

1  ASH’s formal complaint – 31 July 2024

2  WBD’s response to the complaint – 26 August 2024

3  ASH’s referral to the Authority – 13 September 2024

4  BD’s comments on the referral – 4 November 2024

5  WBD’s response to Authority’s request for further information (regarding confidential source, and whether item was available online) – 2 and 3 December 2024

Orders

1  ASH’s submissions on the provisional decision and orders – 12 February 2025

2  WBD’s submissions on the provisional decision and orders – 12 February 2025

3  ASH’s further comments on orders – 20 and 21 February 2025

¹ Action for Smokefree 2025, “About ASH” <www.ash.co.nz>
² Introduction, Code of Broadcasting Standards in New Zealand at page 4
³ Standard 8, Code of Broadcasting Standards in New Zealand
⁴ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
⁵ Guideline 8.4
⁶ For example, see Huriwai and Discovery NZ Ltd, Decision No. 2022-061 at [19] and Wilkinson and Radio New Zealand Ltd, Decision No. 2023-066 at [20].
⁷ Willcock and Television New Zealand Ltd, Decision No. 2009-056 at [45]-[46]
⁸ Guideline 8.4
⁹ Standard 5, Code of Broadcasting Standards in New Zealand
¹⁰ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 14
¹¹ Krystal Gibbens “Casey Costello under fire on links to tobacco industry, says govt still committed to Smokefree 2025” RNZ (online ed, 24 September 2024), Guyon Espiner “Leaked tobacco lobbying plan for ‘political pressure’ shows tobacco giant got its tax cut wish” RNZ (online ed, 23 August 2024), Kate Newton “The tobacco industry language that found its way into ministerial papers” RNZ (online ed, 04 March 2024), Bridie Witton “Public health experts reject Casey Costello’s tobacco claims” Stuff (online ed, 10 October 2024), Jenna Lynch “Ministry of Health has questions to answer over Costello conflict” Stuff (online ed, 26 October 2024), Glenn McConnell “Doctors claim NZ First links to big tobacco during heated meeting with minister” Stuff (online ed, 24 September 2024) 
¹² See New Zealand Greyhound Racing Association Inc and Discovery NZ Inc, Decision No. 2022-084 at [26] for a similar finding
¹³ Standard 6, Code of Broadcasting Standards in New Zealand
¹⁴ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
¹⁵ ASH Press Release “Raising Vape Sale Age To 21 Among Recommendations from ASH To Tackle Youth Vaping Numbers” 8 May 2023
¹⁶ WBD pointed to one press release dated 8 May 2023 (referenced at footnote 15), which included a link to ASH’s Position Statement and Recommendations on youth vaping, also provided by Youdan to the reporter in an attachment to his email on 29 July 2024.
¹⁷ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [98]
¹⁸ Action for Smokefree 2025 “Vaping and young people: ASH position statement” (May 2023)
¹⁹ Guideline 6.3 
²⁰ See New Zealand Greyhound Racing Association Inc and Discovery NZ Inc, Decision No. 2022-084 at [36]-[37] for a similar finding.
²¹ Brett Kerr-Laurie “Education Ministry plans ‘further action’ in nicotine fight” The Press (online ed, 14 August 2024), Eric Crampton “Difficult to see method in the Government’s moves to tackle youth vaping ” The Post (online ed, 26 August 2024)
²² Attorney-General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [62]
²³ Greyhound Racing New Zealand and Discovery NZ Ltd, Decision No. 2023-073 (31 January 2024) – concerning an item broadcast on Newshub Live at 6pm on 13 June 2023.
²⁴ Prager and Radio New Zealand Ltd, Decision No. 2020-033 at [52]
²⁵ “Concerns raised after anti-smoking group met vaping lobbyist” Stuff (online ed, 26 July 2024)
²⁶ “Education Ministry plans ‘further action’ in nicotine fight” The Press (online ed, 14 August 2024); “Difficult to see method in the Government’s moves to tackle youth vaping” (Opinion: Dr Eric Crampton) The Post (online ed, 26 August 2024)
²⁷ Guidance: Costs awards to complainants (Broadcasting Standards: Resources) <www.bsa.govt.nz>
²⁸ As above
²⁹ As above, page 67
³⁰ Harvey and Lorck and MediaWorks TV Ltd, Decision No. 2018-036
³¹ Morrison and Television New Zealand Ltd, Decision No. 2021-150
³² Paper Reclaim Ltd and TVWorks Ltd and RadioWorks Ltd, Decision No. 2010-133
³³ Williams and Wilkinson and TVWorks Ltd, Decision No. 2009-113A/B