BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Te Karere – item reported on the alleged closure of Whakatane Hospital’s Microbiology Department and the movement of all microbiology services to Tauranga – allegedly inaccurate

Findings
Standard 5 (accuracy) – item was inaccurate and misleading in creating the impression that Whakatane Hospital’s Microbiology Department was closing down and all microbiology testing services were being moved to Tauranga – broadcaster did not make reasonable efforts to ensure that item was accurate and did not mislead – upheld

No Order

This headnote does not form part of the decision. 

Introduction

[1]  An item on Te Karere, broadcast on TV One on 4 October 2011, reported on the alleged closure of Whakatane Hospital’s Microbiology Department and the movement of all microbiology services to Tauranga. The reporter interviewed a number of campaigners who opposed the alleged move, and the item contained the following comments (mostly in Māori with English subtitles):

• “Objections against the closing down of Micro Laboratory, a microbiology lab in Whakatane.” (presenter, introducing the item)
• “There could be deaths as a result of the decision to move Whakatane Hospital’s Microbiology Department to Tauranga, says medical expert Dr Sandy Milne...” (reporter)
• “There’s going to be serious mistakes. There are, in fact there already have been, serious mistakes made, and there will be increased morbidity and mortality. That means sickness and death.” (Sandy Milne)
• “The Whakatane Hospital has received millions of dollars, so why is it then that this service has been taken away to another hospital in Tauranga?” (Julian Tunui, Kaitautoko)
• “...31 doctors signed a petition, with 30 objecting to the move and one who was undecided.” (reporter)

[2]  Bay of Plenty District Health Board (BOPDHB) made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item contained a number of inaccurate statements. In particular, it asserted that Whakatane Hospital’s Microbiology Department had not closed down. BOPDHB considered that the incorrect reporting damaged the reputation of Whakatane Hospital and its staff, and it sought a correction and an apology from TVNZ.

[3]  The issue is whether the item breached Standard 5 (accuracy) of the Free-to-Air 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.

Nature of the programme and freedom of expression

[5]  We recognise the right to freedom of expression which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990, and acknowledge the importance of the values underlying that right. The right to free expression includes the freedom to seek, receive, and impart information and opinions of any kind in any form. Any restriction on the right to freedom of expression must be prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5).

[6]  The Te Karere item reported on an important issue regarding changes to public health services, specifically, the method and location of service delivery, and the potential adverse effect on the community. The accuracy of the information broadcast was particularly important, given that the item discussed issues that impacted directly on the health and wellbeing of those who lived in the Whakatane area. 

[7]  Taking into account the nature of the item and the importance of the speech engaged on this occasion, we consider that the accuracy of the information broadcast will determine the level of justification required to restrict the broadcaster’s right to freedom of expression.

Was the item inaccurate or misleading?

[8]  Standard 5 (accuracy) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.¹

[9]  The complainant argued that the item was inaccurate and misleading in a number of respects.

Closure of Microbiology Department

[10]  BOPDHB stated that the laboratory based at Whakatane Hospital (PathLab Whakatane) had not closed down. Rather, recent changes in September 2011 meant that the processing and reporting of non-urgent routine microbiology testing was transferred to Tauranga; all urgent microbiology testing continued to be done in the laboratory at Whakatane Hospital. There had not been a reduction in service, but simply a change in method and location of service delivery, it said.

[11]  In response to the Authority, TVNZ maintained that the item accurately reported the facts of the story as they were commonly believed at the time of the broadcast. It said:

...at the time of the Te Karere report this issue was one that caused confusion in the community and in the press, with the people involved genuinely believing that the lab was closing, and there were a number of reports that   presented the issue as it was addressed in Te Karere.

[12]  We are satisfied that the item made inaccurate statements, and created a misleading impression, that Whakatane Hospital’s Microbiology Department was closing down and all microbiology testing services were being moved to Tauranga (see paragraph [1]). This inaccuracy was compounded by suggestions that the quality of services would be compromised as a result of the alleged restructuring.

[13]  The issue therefore, is whether the broadcaster made reasonable efforts to ensure that the item was accurate and did not mislead.

[14]  TVNZ referred to, and relied on, an article from The Whakatane Beacon to support the information broadcast. The article, titled “Microbiology department to be axed”, reported on a public meeting held in August 2011, and stated that the department was to be disestablished. In addition, the broadcaster asserted that it made reasonable efforts to ensure that the facts in the story were accurate by talking to Iwi representatives who spoke in support of the Whakatane Hospital Board, as well as opponents of the “believed move”.

[15]  In our view, reliance on reporting of a local newspaper does not amount to reasonable efforts, as required by Standard 5. We agree with BOPDHB’s contention that, “Surely if at the time of airing there was a high level of confusion in the community then TVNZ had an even higher duty to ensure that their reporting was accurate and did not add to the confusion.” By relying only on the Whakatane Beacon for the information broadcast, TVNZ compounded the confusion, and consequently viewers were misinformed.

[16]  We accept that the item included comment from an Iwi representative, Pouroto Ngaropo, who stated, “It has not been about trampling anyone’s mana, but about striving to provide better services for the wider communities of Mataatua”. However, while Pouroto Ngaropo spoke in support of the hospital Board, he was not a spokesperson for the hospital, and in any event, his comments in the broadcast did not specifically relate to the details of the restructure.

[17]  As detailed in paragraph [11], TVNZ and Te Karere were aware of the confusion surrounding the issue. Reasonable efforts required, at the very least, an attempt to seek comment from the hospital or the DHB, which were in the best position to clarify the situation. This was reinforced by a press release issued by BOPDHB the day following the Te Karere item, which made the position clear and sought to dispel any confusion about the restructuring.

[18]  For these reasons, and taking into account our views at paragraph [6], we find that upholding the accuracy complaint would be a reasonable and justifiable limit on the broadcaster’s right to freedom of expression.

[19]  Accordingly, we uphold the complaint that the item breached Standard 5.

Other accuracy arguments

[20]  BOPDHB argued that the item contained inaccurate and “inflammatory” statements made by, or attributed to, Sandy Milne. In particular, it referred to the following comments:

• “There’s going to be serious mistakes. There are, in fact there already have been, serious mistakes made, and there will be increased morbidity and mortality. That means sickness and death.” (Mr Milne)
• “There could be deaths as a result of the decision to move Whakatane Hospital’s Microbiology Department to Tauranga, says medical expert Dr Sandy Milne...” (reporter)
• “This whole thing in my view is a scandal, and I want Māori leaders to wakey, wakey. What’s happened is that the Māori leaders at the hospital haven’t heard the evidence from myself and the doctors.” (Mr Milne)

[21]  These comments were clearly distinguishable as the comment and opinion of Mr Milne, and were therefore exempt from standards of accuracy under guideline 5a. This guideline excludes these types of speech from the requirements of Standard 5.

[22]  In addition, BOPDHB argued that it was inaccurate to refer to Mr Milne as a “doctor”, which it considered “highly relevant” to the issue under discussion.

[23]  The term “doctor” was used once in the item and appeared onscreen in English subtitles. While we accept that the use of the title was inaccurate and contributed to the perceived credibility attached to Mr Milne’s views, in our view it was not material in the context of the item and given the nature of Mr Milne’s participation. We agree with TVNZ that while Mr Milne was not a doctor, he was sufficiently qualified to speak on the issues under discussion.  

[24]  Accordingly, we decline to uphold these parts of the Standard 5 complaint.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of Te Karere on TV One on 4 October 2011 breached Standard 5 of the Free-to-Air Television Code of Broadcasting Practice.

[25]  Having upheld the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We do not intend to do so on this occasion. We consider that the publication of this decision is sufficient to correct the errors in the broadcast, and will serve as a reminder to broadcasters in terms of what amounts to reasonable efforts to ensure that programmes are accurate and do not mislead. 

 Signed for and on behalf of the Authority

Peter Radich
Chair
8 June 2012

Appendix

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

1                  BOPDHB’s formal complaint – 6 October 2011

2                 TVNZ’s response to the complaint – 4 November 2011

3                 BOPDHB’s referral to the Authority – 18 November 2011

4                 TVNZ’s response to the Authority – 8 March 2012

5                 BOPDHB’s final comment – 20 March 2012

6                 TVNZ’s final comment – 3 April 2012

¹Bush and Television New Zealand Ltd, Decision No. 2010-036