BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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

A documentary called Jungle Rain reported on the use of Agent Orange in the Vietnam War, and the long-term effects of this on New Zealand veterans and their families. The Authority did not uphold the complaint that the documentary was alarmist and misleading. The documentary largely comprised the personal opinions and experiences of the interviewees, and contained balancing comment.

Not Upheld: Accuracy, Balance

Introduction

[1]  A documentary called Jungle Rain reported on the use of herbicides including Agent Orange in the Vietnam War, and the long-term effects of this on New Zealand veterans and their families. The documentary was broadcast on TVNZ Heartland on 13 March 2014.

[2]  Rex Barron made a formal complaint to SKY Network Television Ltd (SKY), alleging that the documentary was ‘alarmist, misleading and untrue both in its presentation of hearsay rumour as facts and its supposed location’.

[3]  The issue is whether the broadcast breached the accuracy and balance standards, as set out in the Pay Television Code of Broadcasting Practice.

[4]  The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Was the broadcast inaccurate or misleading?

[5]  The accuracy standard (Standard P8) says that significant errors of fact should be corrected at the earliest opportunity.

[6]  The documentary contained interviews with New Zealand veterans who recounted their experiences serving in the Vietnam War, and specifically, they talked about being exposed to harmful herbicides, including being sprayed with Agent Orange. The documentary looked at the impact of exposure on the health of the veterans and their children, and it compared the different responses of the New Zealand, Australian and American governments to this issue.

[7]  Mr Barron’s original complaint was specific to the claim that New Zealand soldiers were ‘directly sprayed with herbicide’; he did not take issue with the claim they were exposed by means other than spraying, or that this was linked to health problems. He maintained that ‘The last Agent Orange mission flown in Phuoc Tuy province was on 28 June 1968, before the bulk of New Zealanders arrived in Phuoc Tuy’. Later in the complaints process, Mr Barron raised other issues he had with the documentary – for example, he alleged the programme was inaccurate in relation to veteran mortality rates compared to non-veterans, and the level of toxicity of Agent Orange – but as these were not raised in the original complaint we do not have jurisdiction to consider them now.

[8]  SKY said the war veterans interviewed in the documentary recalled being sprayed with herbicides, and argued that they were entitled to express their recollection of events and opinions in accordance with the right to free speech guaranteed by the New Zealand Bill of Rights Act 1990. It also referred to an extract from the Health Select Committee Report 2004, endorsed by the New Zealand government:¹

The advice we received notes there is overwhelming evidence that New Zealand defence personnel were exposed to Agent Orange and other herbicides containing dioxin both directly and indirectly during the Vietnam War. [our emphasis]

[9]  In our view, the documentary did not contain any significant errors of fact that should have been corrected by SKY. The interviewees’ comments about being sprayed directly during their time in Vietnam were clearly their personal recollections of their first-hand experiences. The equivalent standard in the Free-to-Air Television Code exempts comment and opinion from the requirement for factual accuracy.² These special categories of speech are protected by the right to freedom of expression under the New Zealand Bill of Rights Act 1990. We are not willing or able to dismiss the veterans’ version of events as factually inaccurate. Nor are we willing to say that the broadcaster should have discounted their views as incorrect. We note, however, that the documentary did recognise and reinforce that the veterans’ views were their own opinions and personal recollections, which were refuted by successive governments. For example, the presenter said:

Veterans had high hopes that their experiences would at last be vindicated, but instead were outraged at [the McCloud report’s] conclusions. The McCloud report starts with one key sentence which says, “The information available to the authors was that ANZAC Forces generally served in Phuoc Tuy province where there was no aerial spraying”.

[10]  Accordingly, viewers were not misled in the manner alleged, as the documentary presented perspectives which countered the recollections of the interviewees (also see additional comments in paragraph [18]).

[11]  In any case, we do not think that the distinction between direct exposure (specifically though spraying) and indirect exposure (for example through contact with contaminated soil, water and food) was material or would have significantly altered viewers’ understanding of the programme. The key point and focus of the documentary was that New Zealand soldiers were exposed in one way or another to herbicides and particularly Agent Orange during their time in Vietnam, which has had long-term health implications for the soldiers and their children. The documentary chronicled the struggle of veterans to gain recognition and support for their families, and widespread denial of exposure by successive governments around the world. Whether or not the exposure was direct or indirect was not something that was dwelt on in the broadcast.

[12]  Mr Barron also argued that the ‘dramatic shots of the bullet pockmarked house and rubber trees that give the impression the film crew were in Vietnam were in fact in East Timor’. We have not seen any evidence of this. Regardless, the location of filming was not material to the programme overall. At no stage did the presenter claim to be in Vietnam, and the footage was merely used as visual wallpaper for the documentary. Some of the archive footage of aerial spraying and villages affected by Agent Orange – being the key focus – was clearly shot in Vietnam, so viewers were not misled.

[13]  Accordingly, we decline to uphold the accuracy complaint.

Was the balance standard breached?

[14]  The balance standard (Standard P4) states that news and current affairs content dealing with controversial issues of public importance should be balanced, with significant sides to these issues presented in as fair a way as possible. The standard exists to ensure that competing arguments are presented to enable viewers to arrive at an informed and reasoned opinion.³

[15]  Mr Barron argued that ‘this very one-sided “documentary” lacked balance’ and had ‘a political agenda thinly disguised as a documentary’. He reiterated his view that it was inaccurate to claim that New Zealand soldiers were sprayed with Agent Orange.

[16]  A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The balance standard in the Pay TV Code applies only to news and current affairs which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’, and it must be ‘discussed’.⁴

[17]  Jungle Rain was a one-off special documentary originally released in 2005, and largely comprised the personal opinions and experiences of war veterans. We do not think this comes within the category of ‘news and current affairs’ as envisaged by the balance standard in the Pay TV Code.⁵

[18]  Even if the standard did apply, we are satisfied that sufficient balance was provided. The documentary made it clear this was a vexed issue, and there were two sides to the story. The documentary acknowledged on numerous occasions that many denied there was any exposure to Agent Orange, or if there was exposure, that it had any ongoing effects on health. The programme also clearly referred to reports which had concluded there was no exposure, or specifically, no spraying of Agent Orange. For example, the documentary contained the following comments:

• ‘Denial that Agent Orange had caused health problems in New Zealand veterans and their children continue.’ (presenter)
• ‘Veterans had high hopes that their experiences would at last be vindicated, but instead were outraged at [the McCloud report’s] conclusions. The McCloud report starts with one key sentence which says, “The information available to the authors was that ANZAC Forces generally served in Phuoc Tuy province where there was no aerial spraying”.’ (presenter)
• ‘Here in Australia there was a denial that we’d sprayed herbicides in Vietnam, there was a denial that we’d been exposed to American spraying of herbicides, there was a denial that even if we had been sprayed with those herbicides that they had any effect. In America, they couldn’t deny that herbicide was sprayed, but they did deny, initially, that there were any effects.’ (interviewee)
• ‘Australia’s position slowly changed, from that of denial, to acknowledging the US model that proof of Vietnam service was proof of exposure. New Zealand, however, did not.’ (presenter)
• ‘Why has Veterans’ Affairs, the agency tasked with looking after veterans and their families, been so at odds with what their own soldiers witnessed and with what the Australians and Americans had already accepted?’ (presenter)

[19]  For these reasons, we decline to uphold the balance complaint.

Conclusion

[20]  This documentary carried very high public interest and was valuable in terms of the right to freedom of expression. It provided Vietnam War veterans – a group that has faced condemnation and little sympathy for their involvement in the war – a platform to recount their experiences and to air their grievances. Not only did it educate viewers on historical events but it also humanised these veterans, and in doing so offered a broader perspective. We do not think that these types of programmes should be stifled without very good reason, and there is no reason for us to interfere here.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
21 August 2014

Appendix

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

1            Rex Barron’s formal complaint – 15 March 2014

2            Mr Barron’s referral to the Authority – 23 April 2014

3            SKY’s response to the referral – 27 May 2014

4            Mr Barron’s final comment – 2 June 2014

5            SKY’s final comment – 9 July 2014

6            Further submissions and supporting documentation from Mr Barron – 13 July, 24 July and 18 August 2014

1http://www.dia.govt.nz/Decommissioned-websites---Viet-Nam-Veterans-Working-Group  

²See Guideline 5a to Standard 5, Free-to-Air Television Code of Broadcasting Practice

³Bush and Television New Zealand Ltd, Decision No. 2010-036

⁴For further discussion of these concepts see Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010)

⁵The programme would, however, be categorised as a ‘factual programme’ to which the balance standard applied, if it was considered under the equivalent standard in the Free-to-Air Television Code.