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 that a broadcast of The Project discussing multiple musicians’ backlash to podcaster Joe Rogan, which mentioned his use of ivermectin to treat COVID-19, breached the fairness standard. The Authority found Rogan was not treated unfairly in the broadcast and, if any harm had arisen from the broadcast, it did not meet the threshold for regulatory intervention.

Not Upheld: Fairness

The broadcast

[1]  A broadcast of The Project on 31 January 2022 reported on Joe Rogan’s recent controversies, including his use of ivermectin to treat COVID-19. During the segment, while images of Rogan’s podcast and boxes of horse, cattle and pig ivermectin medication were shown on screen, a voiceover states:

‘These days, [Joe Rogan] is best known for his podcast, The Joe Rogan Experience, where he does pretty much whatever he wants, which during the pandemic, includes giving anti-vax campaigners a platform…. taking horse wormer ivermectin as a COVID treatment… and generally dishing out harmful advice’

The complaint

[2]  Nick Brennan complained report on The Project breached the fairness standard:

• The clip misled the audience in regard to Joe Rogan’s use of ivermectin as a COVID-19 treatment.
• ‘The clip contains a box [of ivermectin] with only references to animals.’
• ‘[CNN’s] own doctor has come on [Rogan’s] Podcast to discuss how this was wrong as it was prescribed by a doctor along with several other treatments.’
• ‘There needs to be a clarification of the story and just stick to facts and not misrepresentation which if you are doing a story on how Joe Rogan has "Propaganda" the same could be said of this story. Anything short of a correction will result in a BSA complaint.’

The broadcaster’s response

[3]  Discovery NZ Ltd (Discovery) did not uphold the complaint for the following reasons:

• ‘Mr Rogan promoting ivermectin as a treatment for Covid-19 has attracted global attention and the topic has been widely reported internationally. The drug is best known as a deworming treatment for horses and the Committee does not agree that featuring these two photographs, which portrayed the drug for the use it is best known for, led to any unfairness to Mr Rogan.’
• ‘The purpose of this standard is to protect the dignity and reputation of those featured in programmes. The Committee has not identified any material in the broadcast likely to harm or damage the dignity or reputation of Joe Rogan. We do not agree that the reference to ivermectin, with photographs of the drug showing animals on the boxes, resulted in any significant loss of dignity or harm to him.’

Jurisdiction

[4]  In their referral to the Authority, the complainant sought to rely on the accuracy and discrimination and denigration standards (in addition to the fairness standard).

[5]  Pursuant to section 8(1B) of the Broadcasting Act 1989, we are only able to consider a complaint under the standard(s) raised in the original complaint to the broadcaster. The High Court has clarified that in certain circumstances:¹

…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…

[6]  We do not consider the discrimination and denigration standard could be reasonably implied into the original complaint, nor do we consider it necessary to do so. We have also considered whether the accuracy standard can be reasonably implied into the original complaint (particularly as it suggested the broadcaster ‘stick to the facts and not misrepresentation’). However, on balance we find the complaint can be properly considered under the fairness standard originally raised, particularly as the accuracy of any content is relevant in assessing its ‘fairness’ to Rogan.

[7]  Accordingly, our decision addresses the fairness standard only.

The standards

[8]  The fairness standard² protects the dignity and reputation of those featured in programmes.³ It ensures individuals and organisations are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

[9]  We have watched the broadcast and read the correspondence listed in the Appendix.

[10]  Our task is to weigh the value of the programme, in terms of the right to freedom of expression and the public interest in it, against the level of actual or potential harm caused.

Fairness

[11]  Rogan is identified by the complainant as being treated unfairly in this broadcast. The fairness standard is concerned with preventing undue harm to the dignity and reputation of any person or organisation taking part or referred to in a programme.⁴  A consideration of what is fair depends on the nature of the programme and the context, as well as the nature of the individual or organisation referred to.⁵

[12]  It is well established in the Authority’s decisions that there is a higher threshold for finding unfairness in relation to a public figure that is used to being the subject of robust scrutiny and regular media coverage.⁶

[13]  We are satisfied that Rogan was not treated unfairly, taking into account the following factors:

• Several clips of Rogan’s podcast were included in the broadcast, including clips discussing his use of ivermectin and how he ‘got better pretty quick’.
• The broadcast made no claim that ivermectin had not been prescribed to Rogan by a doctor.
• It was not inaccurate or unfair to depict the animal version of ivermectin in the context of this story. This recognised that the most common use of the drug in New Zealand is in a veterinary setting.⁷ It also recognised the controversy surrounding use of ivermectin (as a number of people have been using the animal version of the drug in attempting to treat COVID-19).⁸
• The broadcast did not state Rogan was taking a version of the drug intended for animals. 
• Rogan is a high-profile media figure who has been the subject of frequent media coverage and commentary, particularly in relation to his discussions of COVID-19 and related issues. Rogan can reasonably expect his actions to be scrutinised by the media.
• In the circumstances, we do not consider the audience would have been left with an unduly negative impression of Rogan.

[14] The programme was also a valuable expression of free speech and concerned issues of public interest given the connection to misinformation regarding COVID-19. Should any harm have arisen from this broadcast, it did not meet the threshold for regulatory intervention.

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

Susie Staley
Chair
11 April 2022    

Appendix

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

1  Nick Brennan’s formal complaint – 1 February 2022

2  Discovery’s decision on the complaint – 22 February 2022

3  Brennan’s referral to the Authority – 22 February 2022

4  Discovery’s confirmation of no further comments – 23 February 2022

¹ Attorney General of Samoa v TVWorks Limited, CIV-2011-485-1110 at [62]
² Standard 11 of the Free-To-Air Television Code of Broadcasting Practice
³ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁴ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁵ As above
⁶ As above
⁷ See Powell and Television New Zealand Ltd, Decision No. 2021-127 at [12]-[13]
⁸ Mitch McCann “Medsafe warns people against using 'horse medicine' to ward off COVID-19” Newshub (online ed, 5 September 2021); “Ivermectin sales surge as consumers chase unproven Covid ‘cure’” Horsetalk <www.horsetalk.co.nz>; Emma Goldberg “Demand Surges for Deworming Drug for Covid, Despite Scant Evidence It Works” New York Times (online ed, 28 September 2021); Erin Woo “How Covid Misinformation Created a Run on Animal Medicine” New York Times (online ed, 28 September 2021)