BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

An episode of The Detail explored the Productivity Commission’s recommendation the Government review Aotearoa New Zealand’s regulatory framework around genetically modified organisms to ensure they remain fit for purpose. The complainant stated the broadcast was unbalanced and misleading as it, among other reasons, overemphasised the benefits of GMOs, did not critique the Commission, was inaccurate in several respects, and suggested issues with GMOs were largely ethical rather than scientific. The Authority did not uphold the complaint, finding the broadcast was balanced, particularly as it was focusing on a single issue. It also found the broadcast was materially accurate and unlikely to mislead listeners.

Not Upheld: Balance, Accuracy

The broadcast

[1]  An episode of The Detail, which aired on 11 May 2022, explored the Productivity Commission’s recommendation the Government should review Aotearoa New Zealand’s regulations on genetically modified organisms (GMOs) to ensure they remain fit for purpose and support domestic innovation. In setting the scene, the presenter noted the terms ‘genetic modification’ and ‘gene editing’ would be talked about ‘under the same umbrella’, but identified the distinction between the terms (where modification involves the insertion of foreign DNA into an organism, and editing alters the genetic makeup of the specific organism).

[2]  The programme included interviews with the Chair of the Productivity Commission | Te Kōmihana Whai Hua o Aotearoa, Dr Ganesh Nana, and Associate Professor Māui Hudson (who has co-authored a number of publications examining indigenous perspectives towards genetic modification in Aotearoa). The broadcast included the following points:

• ‘Gene editing is one of the most controversial technological developments of the modern age. Through modifying the genes of organisms which have been sequenced, we can change fundamental characteristics of certain plants and organisms. We can create amazing things.’
• There are objections to GMO technologies, particularly around thoughts of ‘playing God’, or ‘seizing too much power over the natural world without properly understanding our responsibilities.’
• Genetic modification is tightly regulated in NZ but a new report from the Productivity Commission is calling for a full regulatory review of policies in this space.
• One of the downsides of our regulations is they focus on the process of producing GMOs, rather than outcomes, reflecting the precautionary approach taken. This approach to regulation has meant products with a form of modification are allowed to be imported into the country, but NZ cannot develop or progress such products here. Dr Nana stated:
  
  I think that's the difference, or the curious contradiction I would say that I think we need to get over or clarify because we have foods that are available in New Zealand that are imported, varieties of soya beans and rice, corn and indeed potatoes that are, strictly speaking are not genetically modified, but will have some form of gene editing happening through their development abroad and then imported into New Zealand
• In illustrating the above, the presenter referred to ‘growing grasses that have lower emissions for the animals that eat those grasses’. He confirmed with Dr Nana that NZ was able to develop the concept for this technology, but trials ‘for these sorts of grasses have to be done offshore unless we apply for permissions’.

• Dr Nana considered we were past the stage of ‘Frankenfoods’ arguments against GMOs and technology has overtaken the current regulations.
• When asked what ‘can we do with genetic modification and gene editing’, Dr Nana responded one of the key things is more productive use of land in terms of food, ‘whether it be the rice or the soya beans’. The broadcast then played excerpts from other news clips, including the following:
  
  Vitamin A deficiency is a pervasive and silent killer of malnourished children and pregnant mothers in the Third World. The human body converts beta-carotene into vitamin A.
  
  We are taking some aspects from the corn plant, which has beta-carotene and transferring those traits into rice.
• Dr Nana also referred to developing new pastures and grasses to help meet climate emission goals, more innovative use of disease resistant crops, crops requiring less herbicides and pesticides, and the medical uses of genetic modification. He noted the Productivity Commission is calling for ‘another conversation that takes on board those risks and those benefits so that we can regulate appropriately… this is not a critique of the regulations that we had 20 years ago. It is a let’s review them and let’s make sure that they’re appropriate for the next 20 years.’

• The interview with Associate Professor Hudson focused on Māori perspectives to GMOs, noting consultation and involvement in decision-making processes were important in this area as the value of these advances would depend on their proposed use. Associate Professor Hudson noted the current regulations create ‘a level of bureaucracy that’s not required for all of the contexts’ although ‘there’s a lot of places where you do want that level of rigour and that level of assessment to go on’.

The complaint

[3]  Jon Carapiet complained the broadcast breached the balance and accuracy standards of the Radio Code of Broadcasting Practice as, at a high level, ‘The science based issues for Gene Editing are ignored and inaccurately positioned as non-existent in’ the broadcast. His key arguments include:

• ‘Without the Detail and RNZ coverage at all giving visibility to these scientific concerns, listeners will be [misled] to thinking the fundamental debate is only Science versus “Sanctity of Life”, Values’ or Te Ao Māori.
• The broadcast did not provide background as to why GMOs were regulated by reference to their process of creation rather than the end product.
• The broadcast overemphasised the benefits of genetic developments without acknowledging issues such as the increased use of herbicides and pest resistance in countries where GE crops are grown.
• There was no criticism of the Productivity Commission’s findings or consideration of economic benefits achieved by avoiding GMOs.

[4]  The complainant also pointed to the following alleged inaccuracies made in the broadcast:

• Dr Nana claimed there were a lot of gene edited foods in New Zealand, when in fact all imports he had in mind were GMOs. (‘There are only 2 commercial Gene Edited products in the USA and not imported to NZ.’)
• Discussion around ‘gene edited grasses (plural)’ implied diversity when the broadcast was referring to ‘GE ryegrass… This was not balanced by clarity around known solutions of mixed forage and existing non-GE grasses already available to reduce methane.’
• ‘Golden Rice’ was represented ‘as a success. However, the FDA refused to allow any claim the product actually worked’ and the broadcast omitted arguments regarding indigenous groups’ opposition to the rice.¹
• The broadcast suggested gene editing was not transgenic, when the first commercially gene edited hornless cows were accidentally transgenic.²

[5]  With regards to perspectives that should have been included, the complainant also noted:

• The ‘broadcast failed to mention the fact that the Minister for the Environment announced a Review of medical uses of Gene Editing two weeks before this broadcast.’³ This was of ‘central relevance and responded to a major demand of the Productivity Commission report being discussed.’
• The broadcast did not refer to issues with GMOs.⁴
• The Commission did not conduct any work detailing returns or risks relating to GM, but rather based its findings on ‘anecdotal and industry-received commentary’. ‘Under OIA the Productivity Commission confirmed that they had not commissioned any modelling or evaluation of the economic assets of Non-GMO production and exports for New Zealand that might be at risk from deregulation of GE. The feedback used from industry was also 'anecdotal' about how hard current regulations make it to apply for GMOs. But again no analysis of potential updates to EPA methodologies for genome sequencing, or Liability insurance that would allow current settings to be more effective.’ Including this information ‘would have more accurately contextualised and balanced’ the broadcast.

The broadcaster’s response

[6]  RNZ did not uphold the complaint, acknowledging the complainant’s ‘broad dissatisfaction with RNZ’s coverage of GMO issues generally.’ RNZ explained the broadcast dealt with a specific question, ‘framed by [Dr Nana], as to whether New Zealand might be missing out on (a range of) “benefits” due to its policies and attitudes regarding genetically modified organisms. The choice of this editorial line is a journalistic decision and does not breach the broadcasting standards.’

[7]  While acknowledging the complainant’s right to their opinion, RNZ noted ‘the Authority has previously been reluctant to conclude that the absence of certain details can be considered misleading to an extent that would require regulatory intervention’.⁵

[8]  With regards to the standards raised:

Balance

• ‘RNZ accepts that genetic modification is controversial… The programme explores the law and historical and other factors influencing the formulation of policies about genetic modification and gene editing. Some of the more obvious objections to genetic modification/gene editing are explored in the programme – for instance, sanctity of life and Māori perspectives. But the programme does not attempt or purport to summarise all the significant points of view on the topic.’
• The producers ‘have chosen quite a narrow focus on [a] Productivity Commissioner’s views on the perceived risk vs benefits of GMO crops.’
• The views of the Chair of the Productivity Commission and Associate Professor Māui Hudson are significant and were included in the broadcast.

Accuracy

• Dr Nana ‘is an economist and makes clear in speaking to the issues raised in the programme that his is a “lay” perspective with lay interpretations of the science involved.’
• Dr Nana ‘is asked his personal view on gene editing during the programme, which he seems happy to provide but it is not possible to deduce from this that he is offering an official or scientific perspective and he is very careful not to mislead or obfuscate in this regard.’

The relevant standards

[9]  The balance standard⁶ 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.⁷ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.

[10]  The purpose of the accuracy standard⁸ is to protect the public from being significantly misinformed.[9] It states broadcasters should make reasonable efforts to ensure any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.

Our analysis

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

[12]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.¹⁰

[13]  In this instance, the value in the programme was the public interest in exploring the Productivity Commission’s recommendation that NZ should review its regulation of GMOs. The harm alleged is listeners would be misled due to the omission of key points.

[14]  Overall, we have not upheld the complaint under either standard. The complaint largely relates to the omission of material said to make the broadcast misleading. In general, we do not agree. The broadcast focused on a specific issue, being the regulation of GMOs in light of the Productivity Commission’s recommendations. Listeners would not have expected the level of additional detail contemplated by the complainant regarding the ‘science based issues’ highlighted by the complainant.¹¹

[15]  Further, the overall complaint amounts to the complainant’s personal preference on what content should be broadcast, and what questions should have been asked; this is an editorial discretion (as recognised by the complainant) that is not capable of being resolved through the complaints system.¹²

[16]  We expand on our reasoning under each of the standards and alleged breaches.

Balance

[17]  The broadcast discussed the Productivity Commission’s recommendation the Government review Aotearoa New Zealand’s regulatory framework around genetically modified organisms to ensure they remain fit for purpose. We consider the balance standard applies as the appropriate regulation of GMOs in NZ is clearly a controversial issue of public importance and recognised as such in the broadcast.¹³

[18]  We also consider the broadcast met the requirements of the balance standard with regard to this issue taking into account the following:¹⁴

• The broadcast was clearly signalled (in its introduction) as approaching the topic from a particular perspective (ie the regulatory issues with GMOs following a recommendation from the Productivity Commission’s report).
• The broadcast interviewed Dr Nana (Chair of the Productivity Commission and an economist) and Associate Professor Hudson (an interdisciplinary researcher with a focus on application of mātauranga Māori to decision making).¹⁵
• Although the potential benefits of regulatory review were illustrated by examples, these were broad references and did not go into the detail of mechanisms. For example, while there was mention of grasses that produce lower emissions from animals that eat those grasses, no further detail was given such as the name of the particular grass referenced or its mode of mechanism. The example was used to illustrate the broad point made by Dr Nana that concepts could be developed in NZ but would need to be tested overseas.
• We consider other significant perspectives were flagged both within the interview with Dr Nana, as well as in the subsequent interview with Associate Professor Hudson, allowing an audience to form their own views regarding the merits of regulatory review.

[19]  We acknowledge the complainant’s submissions the broadcast did not criticise the report. However, given the premise of the broadcast (which was to introduce and discuss the Productivity Commission’s findings), we do not consider omitting such detail made the broadcast unbalanced or otherwise justifies regulatory intervention.

[20]  We note the complaint is largely focused on the absence of material addressing safety and other issues with GMOs. However, the broadcast did not ‘discuss’ such issues as contemplated by the balance standard¹⁶ and, in the context described above, listeners would not expect detailed scientific analysis of such issues.

[21]  The simple mention of some examples of potentially positive GMO applications (such as the medical uses of GMOs) did not trigger the standard’s requirements for additional perspectives on those topics. Such a requirement would significantly constrain broadcasters’ ability to offer such programmes (at least within manageable timeslots) and present an undesirable limit on freedom of expression. In any event, we note the broadcast:

• acknowledged the ‘controversial’ nature of this technology
• acknowledged that ‘some of this [technology] has risks’ and there is a need to ensure any regulation is appropriate (the Productivity Commission was calling for ‘another conversation that takes on board those risks and those benefits so that we can regulate appropriately…’)

[22]  We also consider listeners are likely to understand that there are risks associated with such technologies and that any regulatory review in this area would involve an assessment of the sorts of safety and other concerns identified by the complainant.

[23]  Finally, noting the complainant’s concerns with RNZ’s approach ‘across a number of programmes’, we make two points:

• Our jurisdiction is broadcast specific. Accordingly, while we might take into account the existence of other relevant programming in assessing a particular broadcast’s compliance with the balance standard, we have no jurisdiction to assess a broadcaster’s programming over time.
• Our interpretation of the balance standard takes into account the current broadcasting environment and the increased flows of information available to the public from multiple sources. Where, as in the case of GMO safety concerns, an issue has been the subject of considerable media attention,¹⁷ such that audiences can reasonably expect to have a broad understanding of the main perspectives, a balance complaint against a particular broadcaster will rarely succeed.¹⁸

Accuracy

[24]  The audience may be misinformed: by incorrect statements of fact within the programme; and/or by being misled by the programme. Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts’.¹⁹ Programmes may be misleading by omission, or as a result of the way dialogue and images have been edited together, for example.²⁰

[25]  The standard is concerned only with material inaccuracies. Technical or other points unlikely to significantly affect an audience’s understanding of the programme as a whole are not considered material.²¹

[26]  Further, the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.²² An opinion is someone’s view. It is contestable, and others may hold a different view.²³ It is not always clear whether a statement is an assertion of fact or an opinion, this will depend on the context, presentation, and how a reasonable listener would perceive the information.²⁴

[27]  The broadcast was presented as a straightforward ‘explainer’ on GMO regulations. We consider the broadcast contained a mixture of facts and opinion, but the relevant parts complained of would likely be perceived as fact, given the format of the broadcast. On the other hand, we acknowledge the explainer format meant listeners would not expect the level of additional detail contemplated by the complainant in some instances.²⁵

[28]  The complaint includes a number of inaccuracy allegations founded on the likelihood of listeners being misled by the omission of particular perspectives and information (including regarding GMO safety and similar issues). We consider these are more properly addressed, and have been addressed, under the balance standard and do not consider them here.

[29]  Regarding the other alleged inaccuracies (outlined at paragraph [4]), we do not consider the broadcast materially mislead listeners for the reasons below:

• Imports were GMOs, not gene edited: Given the introductory statement that the terms ‘modification’ and ‘editing’ would be used under the same umbrella, and the broadcast did not detail the specific products referred to, we consider this issue to be technical in the circumstances and unlikely to mislead the audience.
• GMO grasses implied diversity: As noted at paragraph [18], above, the broadcast referred to GMO grass by way of an example of how GMOs are developed. We do not consider the actual number, or diversity, or ‘GMO grasses’ would affect an audience’s understanding of the point, being that proof of concept studies occurred in NZ, with trials occurring overseas.
• Golden Rice represented as a success: Golden rice was never specifically referred to in the broadcast. The concept of vitamin A fortified rice was mentioned in the context of answering the presenter’s question of ‘what sorts of stuff can we do with genetic modification and gene editing these days?’, to which Dr Nana responded that we could have ‘much more productive use of land in terms’ of food being produced. The reference to rice was to demonstrate the concept of fortification and listeners would understand this was an example of the concept. No representation was made of its success.
• Gene editing not transgenic: We acknowledge the complainant’s argument and sources. However, given the explainer format of the broadcast, and that it rarely distinguishes between modification and editing, we do not consider an audience would expect this level of detail and its omission would not have affected an audience’s understanding of the broadcast as a whole.

[30]  As noted by RNZ, the Chair of the Productivity Commission is an economist and made it clear he was providing his lay perspective and focusing on the regulatory framework of GMOs in NZ. This is reinforced through the caveats of ‘may’ or ‘might’ when referring to applications of genetic advances throughout the segment which would have alerted listeners that these were concepts being discussed, subject to further feasibility research.

[31]  Further, the broadcast focused on a narrow issue of regulation and concluded with the Chair’s call to ‘have a grown up conversation about this rather than staying in the trenches and lobbing… tweets at each other’. Listeners would not have expected the technical scientific details submitted by the complainant. In the context of the broadcaster’s right to freedom of expression and right to editorial discretion, we do not consider regulatory intervention is justified.

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

Susie Staley
Chair
5 October 2022    

Appendix

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

1  Jon Carapiet’s formal complaint to RNZ –17 May 2022

2  RNZ’s decision on formal complaint – 27 June 2022

3  Carapiet’s referral to the Authority – 18 July 2022

4  Carapiet providing article to Authority – 10 August 2022

5  RNZ’s response to referral – 30 August 2022

6  Carapiet’s final comments – 2 September 2022

7  RNZ’s confirmation of no further comments – 20 September 2022

¹ Citing Marion Nestle “FDA says Golden Rice does not contain enough beta-carotene to merit a health claim” (5 June 2018) Food Politics <foodpolitics.com>; and Stop Golden Rice Network “Why we oppose Golden Rice” (11 August 2020) Grain <grain.org>
² Citing Antonio Regalado “Gene-edited cattle have a major screwup in their DNA” (29 August 2019) MIT Technology Review <technologyreview.com>
³ Referring to Cushla Norman “Genetic modification review being called for, reigniting debate” 1 News (online ed, 16 April 2022)
⁴ Referring to Dan Charles “As Biotech Crops Lose Their Power, Scientists Push For New Restrictions” (29 October 2020) npr <npr.org>; and Friends of the Earth Europe “New GMOs and pesticides reduction: fast-track to failure” (12 May 2022) <friendsoftheearth.eu>
⁵ Referring to Carapiet and Radio New Zealand Ltd, Decision No. 2022-033
⁶ Standard 8, Radio Code of Broadcasting Practice
⁷ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁸ Standard 9, Radio Code of Broadcasting Practice
⁹ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
¹⁰ Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
¹¹ See Carapiet and Radio New Zealand Ltd, Decision No. 2022-033 at [15] where we noted issues regarding regulatory approval processes were not required; and NZDSOS and Television New Zealand Ltd, Decision No. 2022-005 at [20] for a similar finding
¹² See O’Halloran and Television New Zealand Ltd, Decision No. 2021-063 at [5]
¹³ See Grammar and Discovery NZ Ltd, Decision No. 2021-070 at [20]  Friends of the Earth (NZ) and Radio New Zealand Ltd, Decision No. 2018-081 at [15] and
¹⁴ Guideline 8c
¹⁵ The University of Waikato | Te Whare Wananga o Waikato “Assoc. Prof. Māui Hudson” <Waikato.ac.nz>
¹⁶ See Friends of the Earth (NZ) and Radio New Zealand Ltd, Decision No. 2018-081 at [14]–[20] where we made a similar finding
¹⁷ See, for some articles at various points in time, Amber-Leigh Woolf “New Zealanders divided over the safety of genetically modified food” (16 June 2019) Stuff <stuff.co.nz>; Farah Hancock “Is it time to change our mind on GMOs?” Newsroom (online ed, 5 September 2018); “’It is safe’ – Sir Peter Gluckman says GMO usage has no significant ecological or health concerns” 1 News (online ed, 1 July 2018); “Should NZ grow genetically modified crops?” NZ Herald (online ed, 12 September 2012)
¹⁸ Guideline 8c
¹⁹ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
²⁰ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
²¹ Guideline 9b
²² Guideline 9a
²³ Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 64
²⁴ As above
²⁵ See Carapiet and Radio New Zealand Ltd, Decision No. 2022-033 at [12] and [15] and NZDSOS Inc and Television New Zealand Ltd, Decision No. 2022-005 at [20] for similar findings