BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint about an episode of Saturday Morning, in which host Kim Hill interviewed physician journalist and COVID-19 expert Dr Norman Swan. The complaint was that Dr Swan’s comments distinguishing between Long-Haul COVID-19 and Chronic Fatigue Syndrome normalised stigmatisation of the latter and breached the discrimination and denigration standard. The Authority acknowledged the complainant’s concerns, but found the comments did not reach the high threshold of harm that justifies restricting freedom of expression under the standard.

Not Upheld: Discrimination and Denigration

The broadcast

[1]  During an episode of Saturday Morning, on 10 October 2020, host Kim Hill interviewed physician journalist and COVID-19 expert Dr Norman Swan about COVID-19 experiences, symptoms and responses around the world.

[2]  Dr Swan made the following comments about Long-Haul COVID-19:

So there's two things going on with Long-Haul COVID. One is a very real syndrome with heart problems, lung problems, mental health problems, but also brain problems, because your nose tissue that you smell through, the olfactory tissue, is an outcrop of the brain. So actually SARS does get into the brain. And so it's a very real phenomenon, but it's being also conflated with what's called Chronic Fatigue Syndrome, which – Post-Viral Fatigue – is a very common phenomenon. [With] Hepatitis, you get it. I once had Hepatitis A and I had it for months. But you do get over it. And what worries me is that people are thinking that they're going to be condemned to fatigue forever. So it's a serious issue, but it also is a bit of a mystery at the moment.

The complaint

[3]  Mr Andrew Barron complained the broadcast breached the discrimination and denigration standard on the basis the comments made by Dr Swan stigmatise Chronic Fatigue Syndrome (CFS) as a disability:

• ‘[Dr Swan] stated...Chronic Fatigue Syndrome is something you get for a few months, it is nothing to worry about and it goes away. This is outrageous, it is doubtful that any other chronic illness would be subject to this level of unchallenged misinformation’.
• ‘At best what he is describing is a post-viral fatigue. Chronic Fatigue Syndrome is only diagnosed after 6 months or more of a combination of symptoms. It is incurable, and there is no accepted treatment. It is a chronic illness, a quarter [of the sufferers] of which are largely house or bed confined and are unable to work or study.’
• ‘When the subject of an interview makes a comment that is factually incorrect, and also has the effect of further stigmatising a chronic illness, I would expect that this is addressed in some form.’
• ‘The comments from [Dr Swan] are harmful to those suffering from Chronic Fatigue Syndrome.’
• ‘Please be aware, the stigmatisation that CFS sufferers have in the workplace, insurance, government agencies and even friends and family is greater than any other chronic illness. It does not help that our public radio station adds to the stigmatisation and denigration of the illness.’
• ‘It should also be noted: I have been advocating to [Radio New Zealand] since April that Chronic Fatigue Syndrome is likely to be a widespread consequence of [COVID-19]. I have been shown to be correct on this, with most experts (including Dr Fauci and Time Magazine) grouping [Long-Haul COVID-19] as CFS.’

[4]  In his referral to the Authority, Mr Barron added:

• ‘It must also be noted, Dr Swan is very controversial regarding Chronic Fatigue Syndrome in Australia[;] this is especially because of using his ABC programme to promote two “treatments”, Graded Exercise Therapy and Cognitive Behavioural Therapy. These are very controversial as those with CFS, and almost all recognised specialists and scientist[s] have rejected the data from limited trials and have concluded that [Graded Exercise Therapy] and [Cognitive Behavioural Therapy] are harmful to CFS sufferers…’

The broadcaster’s response

[5]  RNZ did not uphold Mr Barron’s complaint:

• ‘Having listened several times to the interview and re-read your complaint I am afraid we cannot find what you complain of and must reluctantly suggest you misheard or misinterpreted [Dr Swan’s] words.’
• ‘Dr Swan suggested “long haul COVID” has been conflated with Chronic Fatigue Syndrome and Post-Viral Fatigue – the latter of which Dr Swan described as a very common phenomenon.’
• ‘Chronic Fatigue Syndrome (CFS) is widely understood to be a complicated disorder characterised by extreme fatigue that lasts for at least six months and that cannot be fully explained by an underlying medical condition. It is quite clear that Dr Swan did not mean he had CFS.’

The standard

[6]  The discrimination and denigration standard¹ states broadcasters should not encourage discrimination against, or denigration of, any recognised ‘section of the community’, consistent with the grounds for discrimination listed in the Human Rights Act 1993. It protects sections of the community from verbal and other attacks, and fosters a community commitment to equality.²

Our findings

[7]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[8]  We have also considered the important right to freedom of expression, which is our starting point. This includes the broadcaster’s right to offer a range of ideas and information and the audience’s right to receive the ideas and information. We may only intervene and uphold a complaint where the broadcast has caused actual or potential harm at a level that outweighs the right to freedom of expression. For the reasons below, we have not found such harm in this case.

Discrimination and Denigration

[9]  ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular group, to their detriment. Denigration is defined as devaluing the reputation of a particular section of the community.³

[10]  The importance of freedom of expression means historically we have applied a high threshold for finding a broadcast encouraged discrimination or denigration in contravention of this standard.⁴ 

Dr Swan’s comments

[11]  The broadcaster suggested the complainant misheard or misinterpreted Dr Swan’s comments which, it claimed, suggested Long-Haul COVID-19 has been conflated with Chronic Fatigue Syndrome and Post-Viral Fatigue, but clearly did not suggest he had suffered from Chronic Fatigue Syndrome himself.

[12]  Dr Swan’s comments appeared to use the terms ‘Chronic Fatigue Syndrome’ and ‘Post-Viral Fatigue’ interchangeably. His point appeared to be that Long-Haul COVID-19 can be either ‘a very real syndrome’ with heart, lung, brain and mental health problems on one hand, or CFS or Post-Viral Fatigue, on the other, and that people with the latter should not think ‘they're going to be condemned to fatigue forever’ because ‘you do get over it’.

Our analysis

[13]  The discrimination and denigration standard only applies to recognised ‘sections of the community’, consistent with the grounds for discrimination listed in the Human Rights Act 1993.⁵ These grounds include sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief. In the Human Rights Act, disability includes ‘physical illness’ and ‘any other loss or abnormality of psychological, physiological, or anatomical structure or function’.⁶ Consistent with this, we find CFS is a disability and CFS sufferers are a recognised section of the community to which the discrimination and denigration standard applies.

[14]  We acknowledge that views calling into question the seriousness and longevity of CFS are credibly disputed. For example, the United States of America Institute of Medicine, National Institutes of Health, and Centres for Disease Control have found CFS is not psychosomatic.⁷ Harvard Medical School defines the illness as ‘characterised by at least six months of extreme fatigue’ and by the fact that ‘only a small percentage of people recover full health’.⁸

[15]  We also acknowledge Mr Barron’s concerns, that broadcasting such views can normalise the stigmatisation of CFS. However, applying the relevant factors we concluded, on balance, the comments did not breach the discrimination and denigration standard:⁹

• The language used was unemotional, somewhat ambiguous, and highly qualified.
• The tone of the comments was reassuring rather than threatening or critical.
• The comments were made in the forum of a serious interview on Kim Hill’s Saturday Morning, a programme characterised by long-form, in-depth journalism on matters including current affairs and science. Dr Swan was engaged as a medical expert and the comments reflected his genuinely held medical opinion.
• The comments were not focused on the seriousness of Chronic Fatigue Syndrome or the credibility of the sufferers of the illness, but on Dr Swan’s view that those with COVID-19 related Post-Viral Fatigue, without corresponding heart, lung, brain and mental health problems, will recover.

[16]  Taken together, these factors mean the broadcast did not reach the high threshold of harm that justifies restricting freedom of expression.

[17]  Accordingly, we do not uphold this complaint.

For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority

Judge Bill Hastings

Chair

25 May 2021    

Appendix

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

1  Andrew Barron’s formal complaint – 30 October 2020

2  RNZ’s response to the complaint – 27 November 2020

3  Mr Barron’s referral to the Authority – 8 December 2020

4  RNZ’s response to the referral – 14 January 2021

5  Mr Barron’s further comments – 20 January 2021

6  RNZ confirming no further comments – 20 January 2021

7  Mr Barron’s final comments – 20 January 2021

8  RNZ confirming no further comments – 21 January 2021

¹ Standard 6 of the Radio Code of Broadcasting Practice
² Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
³ Guideline 6a
⁴ Guideline 6b
⁵ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁶ Human Rights Act 1993, s 21(1)(h)
⁷ Journal of Medical Ethics (5 March 2019) “It’s Time to Pay Attention to ‘Chronic Fatigue Syndrome’” <blogs.bmj.com>
⁸ Harvard Medical School (October 2018) “Chronic Fatigue Syndrome” <health.harvard.edu>
⁹ Guideline 6d