BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld complaints about a press conference by Prime Minister Jacinda Ardern and comments by Professor Michael Baker regarding restrictions for persons who do not have a COVID-19 vaccination. It found the discrimination and denigration standard did not apply to either broadcast and the balance and law and order complaints were not upheld in respect of the second complaint. The interview with Professor Baker was clearly signalled as approaching the issue from his perspective and there has been widespread discussion in other media about whether restrictions on people that are unvaccinated are justified. The Authority found listeners were in a position to arrive at informed and reasoned opinions regarding this issue. It also found the broadcast did not encourage any illegal or antisocial activity.

Not Upheld: Law and Order, Discrimination and Denigration, Balance

The broadcast

[1]  On 22 October 2021 Radio New Zealand Ltd (RNZ) broadcast a press conference by Prime Minister Jacinda Ardern which addressed the new Government framework for minimising the impacts of COVID-19. This included the use of vaccination certificates and consequent restrictions applicable to people not vaccinated against COVID-19.

[2]  On 26 October 2021 RNZ broadcast an interview with Professor Michael Baker during Midday Report concerning potential vaccine requirements for flights and other indoor spaces and the reasoning for this:

Presenter               At the weekend, an unvaccinated man tested positive for COVID-19 in Te Wai Pounamu, the South Island. Otago University epidemiologist Professor Michael Baker wants vaccine proof for passengers on flights and he joins me now. Tēnā koe Professor, now, does there need to be greater protection for those who can fly from level three areas?

Professor Baker     Yes well look, if you think about the example, obviously the infected person who flew to Blenheim, it does raise the question of what precautions we have in place to prevent movement of this virus around the country…

[3] The interview included the following commentary:

Presenter                How crucial is it to have to have proof for passengers on flights to show that they've been vaccinated? How can that contribute to tightening up our borders, especially around Tāmaki?

Professor Baker     Well, I mean, its three reasons. The first one is the obvious one that if someone's infectious on a flight, ...it is an indoor environment that does have reasonable ventilation when the aircraft’s flying, but it isn't great when people are getting on the flight and getting off. And even if you're wearing a mask, [there’s] still the potential for cross-infection in that environment. So it's really important that we stop infected people getting onto flights. That means measures like screening and also vaccination. I mean, Air New Zealand has already announced that it is going to introduce this requirement for international flights next year. But actually, we need this requirement now for domestic flights. So that's the first reason, protecting people on those flights. Second is this is how the virus will get around New Zealand. We've seen that the main way it will get from the North and the South Island is obviously via air travel. And of course, the third reason is that as part of this increasing focus on raising vaccine coverage in general, and I think there's a recognition now that you really can't be in an indoor environment unless you are vaccinated. I mean, we're heading towards that situation. 

The complaint

[4]  Simon Boyce made two complaints. He complained the press conference breached the discrimination and denigration standard:

• ‘In this press conference [Ms Ardern] introduced the most draconian and discriminatory measures ever seen in New Zealand, in peacetime.’
• ‘As well as having unionised public servants dismissed from employment, she went on to state that the unvaccinated would be prevented from entering hospitality venues, including cafes. She also indicated that the unvaccinated would be prevented from having a haircut in public places.’
• ‘The broadcast obviously involves official sanctions that discriminate, and the tone suggests denigration of the unvaccinated. Nothing that I'm aware of on RNZ National subsequently suggests that the media have any kind of problem with the discrimination and denigration that is coming from the highest office.’

[5]  He also complained the broadcast of Professor Baker’s comments breached the balance, discrimination and denigration, and law and order standards for reasons including:

Balance

• ‘Baker and other academics have been given hours and hours of broadcasting time by RNZ, based on their supposed expertise and the deference to it.’
• ‘No attempt at balance has even been attempted’.
• ‘…their statements have been assumed to be expert analysis when most of it is actually a form of advocacy.’
• RNZ is biased and did not feature ‘an equivalent expert in civil liberties or public law’.

Discrimination and denigration

• ‘a category of the “unvaccinated” has been created as a rhetorical category by Baker and the current Prime Minister, so as to suggest that they are carrying the Delta variant, and are therefore a threat to the “vaccinated”’ which is a ’deeply divisive political strategy’
• ‘Baker's smoothing words cannot cover the denigration of the ”unvaccinated” as threatening to health, as well as being ignorant and misguided.’

Law and order

• ‘The people who do not take either one or two doses of the experimental Pfizer drug are acting legally. Given that, it is not appropriate to create them as a category which is acting unlawfully, and can be prevented from using a public space, or that can be sequestered.’
• ‘…informed critics would have to accept that the Bill of Rights, or Human Rights legislation, would prohibit the banning of citizens from public space.’
• ‘…an extreme measure is just being proposed, and would undoubtedly breach civil rights.’

The broadcaster’s response

[6]  RNZ did not respond to the complaint concerning the 22 October broadcast within the required timeframe. In response to the referral it stated:

RNZ has a duty to inform the public of what it is that people in positions of responsibility are saying and the views they hold on matters of legitimate public interest. As a part of that function, RNZ broadcast live the Prime Minister’s press conference on the day that the complainant identified. RNZ has absolutely no control over what the Prime Minister says, but has a duty to inform the public of the views she holds and the announcements that she made that day. That simply cannot be a breach of any broadcasting standards.

[7]  RNZ did not uphold the complaint regarding the 26 October broadcast for the following reasons:

• Professor Baker is a recognised expert in the field of human epidemiology.
• He is entitled to his opinion and his right to express it is protected by the New Zealand Bill of Rights Act.

The standards

[8]  The balance standard¹ states when controversial issues of public importance are discussed in news, current affairs or 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.² The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.³

[9]  The discrimination and denigration standard⁴ protects against broadcasts which encourage the denigration of, or discrimination against, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief. The standard applies only to recognised ‘sections of the community’, which is consistent with the grounds for discrimination listed in the Human Rights Act 1993.⁵

[10]  The law and order standard⁶ states broadcasters should observe standards consistent with the maintenance of law and order, taking into account the context of the programme and the wider context of the broadcast. Its purpose is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity.⁷

26 October broadcast: Our analysis

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

[12]  The right to freedom of expression is an important right in a democracy and it is our starting point when considering complaints. We weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified, in light of actual or potential harm caused.

[13]  We have not upheld the complaint about the 26 October broadcast under any of the standards raised, for the reasons outlined below.

Balance

[14]  For the balance standard to apply, the subject matter must be an issue ‘of public importance’, it must be ‘controversial’ and it must be ‘discussed’ in a news, current affairs or factual programme.⁸

[15]  An issue of public importance is something that would have a significant potential impact on, or be of concern to, members of the New Zealand public. A controversial issue will be one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.⁹ The Authority is satisfied that implementation of restrictions for persons unvaccinated against COVID-19 is a controversial issue of public importance. Accordingly, the balance standard applies.

[16]  In assessing whether a reasonable range of other perspectives were presented, as required by the standard, we were influenced by the following:

• The broadcast was introduced as an interview with epidemiologist Professor Baker.¹⁰
• The broadcast did not purport to be a balanced examination of the issue and was clearly signalled as providing Professor Baker’s perspective.¹¹
• There has been other media coverage (including from RNZ) of the significant, ongoing debate as to whether or not restrictions for people that are unvaccinated are appropriate, and listeners can reasonably be expected to be aware of differing perspectives on this issue.¹²

[17]  Ultimately, the objective of the balance standard is to enable audiences to arrive at informed and reasoned opinions.¹³ We consider listeners were in a position to do so with regard to this issue.

[18]  We note the complainant’s suggestion that broadcast time given to Professor Baker’s views suggests RNZ is ‘biased’ on this topic. However, the balance standard is not directed at bias in and of itself.¹⁴ Provided the standard is not breached, broadcasters are entitled to present stories from particular perspectives or to take a strong editorial stance on one side of an issue. Application of the standard must reflect the present broadcasting environment in New Zealand including the proliferation of broadcast media available to audiences and a more discriminating public.¹⁵ Audiences do not expect to receive all relevant information from one broadcast or broadcaster.

[19]  Finally, we are not convinced there is any harm caused by failure, in this context, to address arguments regarding the civil rights implications of restrictions upon people that are unvaccinated. We are conscious of the important role broadcasters can play during a public health emergency, educating the public to enhance support for measures being designed and implemented to protect public health. For that reason, broadcasters must carefully balance the obligations under this standard and the risk of promoting content likely to ultimately undermine such measures, threatening the wellbeing of New Zealanders. While we have carefully considered the complainant’s arguments, we do not find that this balance was incorrectly struck in this case.

[20]  Due to the above factors, we do not uphold this complaint under the balance standard.

Discrimination and denigration

[21]  This standard applies only to recognised ‘sections of the community’, which is consistent with the grounds for discrimination listed in the Human Rights Act 1993.¹⁶ Like other broad groups previously considered by the Authority, we do not consider people that are unvaccinated to be a ‘recognised section of the community’ to which the standard applies.¹⁷ The standard accordingly does not apply.

[22]  In any event, a high level of condemnation, often with an element of malice or nastiness, is generally necessary for a finding of discrimination and denigration and the broadcast contained no content meeting this threshold.¹⁸

[23]  We accordingly do not uphold the complaint under the discrimination and denigration standard.

Law and order

[24]  The imposition of restrictions on people that are unvaccinated during a public health emergency is a decision for Parliament and the Government who create and enforce the law respectively. In this context, the broadcast is not likely to encourage or promote serious antisocial or illegal behaviour,¹⁹ including any potential breaches of civil rights.

[25]  We accordingly do not uphold the complaint under the law and order standard.

22 October broadcast: Our analysis

[26]  The complaint regarding this broadcast was also under the discrimination and denigration standard. For the same reasons set out in paragraphs [21]–[22], we do not uphold this complaint either.

For the above reasons the Authority does not uphold the complaints about the broadcasts of 22 and 26 October.
Signed for and on behalf of the Authority

Susie Staley
Chair
16 February 2022    

Appendix

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

1  Simon Boyce’s formal complaint (Dr Michael Baker) – 28 October 2021

2  Boyce’s formal complaint (PM press conference) – 29 October 2021

3  RNZ’s response to the complaint (Dr Baker) – 19 November 2021

4  Boyce’s comments on the decision on his formal complaint – 23 November 2021

5  Boyce’s referral to the Authority – 30 November 2021

6  RNZ confirming they had not responded to the complaint (PM press conference) – 30 November 2021

7  RNZ providing comments – 24 December 2021

8  Boyce response to RNZ – 13 January 2022

¹ Standard 8 of the Radio Code of Broadcasting Practice
² Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
³ As above
⁴ Standard 6 of the Radio Code of Broadcasting Practice
⁵ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
⁶ Standard 5 of the Radio Code of Broadcasting Practice
⁷ Commentary: Law and Order, Broadcasting Standards in New Zealand Codebook, page 15
⁸ Guideline 8a
⁹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹⁰ Guideline 8c
¹¹ Guideline 8c
¹² Guideline 8c; “Bus disruptions, road closures after Covid-19 protest in Wellington” RNZ (online ed, 16 December 2021); Claire Breen and Alexander Gillespie “Covid-19: Vaccine mandates for health and education workers are here, but has the law got the balance right?” Stuff (online ed, 16 November 2021); Ben Thomas “Vaccine mandates are too significant to be rushed through Parliament” Stuff (online ed, 25 November 2021); Damien Grant “Human cost to those who do not comply with the Covid-19 vaccine mandate is catastrophic” Stuff (online ed, 31 October 2021); “Ethicist on difficulties of vaccine mandates” Q + A with Jack Tame (TVNZ 1, 24 October 2021)
¹³ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹⁴ Drinnan and Radio New Zealand Ltd, Decision No. 2021-083 at [14]
¹⁵ As above; and Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹⁶ Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
¹⁷ See for example Donald and Television New Zealand Ltd, Decision No. 2021-033; Foster and Television New Zealand Ltd, Decision No. 2017-009 at [16]; Swinney and Radioworks Ltd, Decision No. 2014-021 at [15]; Truijens and Radio New Zealand Ltd, Decision No. 2019-012 at [16]
¹⁸ Guideline 6b
¹⁹ Guideline 5a