BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Diane Musgrave declared a conflict of interest and did not participate in the determination of this complaint.

Close Up – follow-up item on 21 May 2008 on pig cell treatment for diabetes sufferers – presenter commented on Minister’s press release – allegedly unbalanced, partial and unfair – upheld by broadcaster as a breach of Standard 4 (balance) – action taken to rectify the breach allegedly inadequate

Findings
20 May item
Standard 4 (balance) – subsequent broadcast on 5 September was adequate to redress any imbalance – not upheld

Standard 6 (fairness) – item did not provide viewers with sufficient information about approval process for pig cell trial, relied on perspective of interested party – Minister treated unfairly – majority upheld  

Standard 5 (accuracy) – subsumed into consideration of balance and fairness

21 May item
Action Taken – subsequent broadcast on 5 September was adequate to redress any imbalance – action taken by broadcaster sufficient – not upheld

Standard 6 (fairness) – follow-up item did not sufficiently represent the Minister’s views – upheld

Standard 5 (accuracy) – subsumed into consideration of balance and fairness

No Order

This headnote does not form part of the decision.

Broadcast

20 May item

[1]  An item on Close Up called “Miracle Cure?” was broadcast on TV One at 7pm on Wednesday 20 May 2008. The item reported on a medical researcher, Professor Bob Elliott, who was frustrated at not being able to obtain the necessary sign-off from the Minister of Health, David Cunliffe, to test a potential cure for Type 1 diabetes involving pig cells being transplanted into humans.

[2]   The presenter introduced the item by saying:

Professor Bob Elliott is sitting on a therapy that could cure – not just treat, but cure – the 15,000 New Zealanders with Type 1 Diabetes. You’d think our foremost medical researcher would be ecstatic, but Bob Elliott is, to put it mildly, in a lather. The reason? His revolutionary new therapy needs testing. He’s got all the necessary approvals, he’s confident his cure will change lives. He’s just waiting on one last thing, the signature of the Minister of Health. He’s been waiting on that signature for nearly eight months.  

Bob Elliott has had enough. Now he’s considering taking his ground-breaking research somewhere else. Gill Higgins, on a potential cure that could happen at the stroke of a pen.

[3]   The reporter interviewed a diabetic man, Peter Thomson, who had received a pig cell transplant ten years earlier, stating he went from needing insulin injections every day to not needing any for six weeks. The man stated that any reprieve from the condition was “fantastic”.

[4]   Video footage was then shown of an operation in which pig cells were being transplanted into a human. As the video was shown, the reporter stated:

This shows one of those transplants being carried out ten years ago. Millions of living pig cells, injected into a patient, so they can produce insulin for themselves.

[5]   Footage of pigs and researchers in a testing facility was shown as the reporter stated:

The trials were stopped because of fears pig viruses could be transmitted. But now with new research suggesting those fears are unfounded the trials are ready to start again. On top of that the treatment’s been refined. So Professor Elliott believes he now has a potential cure, with insulin production lasting much longer. So that could mean a new life for thousands of New Zealanders born with this disease and for millions worldwide.

[6]   Professor Elliott was then shown at his testing facility saying “Anyone that’s got Type 1 Diabetes, this is the thing they’re waiting for. Current treatment is not very good”.     

[7]   A diabetic girl and her mother were then shown saying how annoying it was to have to worry all the time about her condition.

[8]   The reporter stated:

It will take a true scientific breakthrough to change these lives, and that requires experimental research. Professor Elliott says the pig cell treatment has met all regulatory and ethical requirements. Peter Thomson’s one of many signing up for the transplants, but everyone’s waiting for the Minister of Health to sign a piece of paper.

[9]   The item went back to the studio presenter who said:

Well we approached Health Minister David Cunliffe to come on and explain why the government hasn’t given this the go-ahead. He wasn’t prepared to discuss the issue at this stage saying that quote ‘some consideration has been given to this matter already, but there are several matters still requiring consultation and they are being processed. I can’t comment on the substance of these issues or the completion date at this time’ end quote.   

[10]   The presenter then introduced Professor Bob Elliott and diabetes sufferer Julia Purvis. The presenter asked Professor Elliott about what the “several matters” were that the Health Minister was talking about, initiating the following exchange:

Bob Elliott:       Well, it can’t be anything to do with the science, safety, ethics, they’ve all
                       been ticked off.  

Presenter:        So, you don’t know?

Bob Elliott:       I don’t know. No, I have no idea. It can’t be the safety, the science, the ethics,
                       anything like that. It must be a political problem.

Presenter:       Let’s get one thing clear. Does diabetes kill?

Bob Elliott:       Oh yeah. Type 1 Diabetes is ah, it doesn’t kill you immediately these days,
                       but if you have Type 1 diabetes that’s what you’re going to die from.

Presenter:        So if your cure is as successful as you hope it is, this will save lives?

Bob Elliott:       Well, that’s the whole point of it really, yeah.

Presenter:        I suppose what I’m getting to in a round-about way; the longer it takes for
                       that signature to end up on that piece of paper, people die.

Bob Elliott:       Yeah, that’s right.

Presenter:        That must make you pretty angry?

Bob Elliott:       Yeah, it does. I’ve spent a whole professional life coming to this point. We’re
                       right on that brink now of success and, yeah, it’s very disappointing to see
                       this delayed further.

Presenter:        You have no doubt that this will work?

Bob Elliott:       Yeah, I’m not sure how long or how well it will work, but it’s already working.
                       We know that, it’s not a matter of fantasy. We have done some limited
                       trials and we know it will work.

Presenter:        If you can’t get that, you’ve waited eight months, how much longer are you
                       prepared to wait?

Bob Elliott:       Well, I’m part of a commercial company, Living Cell Technologies, we have a
                       strategy to get on with things and to do it in other places and that’s in hand
                       already. We can’t wait forever. It’s pretty disappointing for the diabetics
                       of New Zealand to see this opportunity passing by.

[11]   The presenter then spoke to a Type 1 Diabetes sufferer, Julia Purvis, who said she was frustrated with the delays in getting the trials approved.  

[12]   The presenter then engaged Mr Elliott again, asking:

Presenter:           Are there political issues here? I mean, is it because the government
                          doesn’t want to offend some of the other parties in the coalition
                          arrangements or do we just simply not know?

Bob Elliott:          Well, I can only guess. But clearly there must have been somebody who
                          has some objection to it, which is not scientific, it’s not safety or ethics
                          and that must be some other objection and the only thing left really is a
                          political objection.

Presenter:           In terms of the science, the government’s own advisors have ticked
                          this off?

Bob Elliott:          The Ministry of Health have given it approval in all phases, science,
                          manufacturing, the testing of the patients, the testing of the pigs, the
                          housing of the pigs, the ethics. Everything has been done and that’s
                          taken us a long time to get there, but we got there and we assumed this
                          was only a formality. Because that’s what the law says, the Minister on
                          advice from his advisors will sign-off.  

Presenter:           So, eight months later, lives lost presumably. When will you decide
                          whether to go off-shore?

[13]   Professor Elliott responded by saying that Living Cell Technologies (LCT) was already doing trials in Russia, America and a number of other places. He stated that the fear was that the “whole thing will lose impetus here and put off the day when New Zealand can benefit from this”.

[14]   The presenter then asked Ms Purvis what she would say to the Minister of Health and she responded “pick up that pen, it’s about time”.   

21 May item

[15]   Close Up broadcast a brief follow-up item the next day on TV One at 7pm on 21 May 2008. During this item the presenter stated:

Now, you may remember last night’s story on a potential cure for diabetes. We heard from Professor Bob Elliott who was frustrated, he’d been waiting eight months for the Minister of Health to sign-off or reject a trial, which involves injecting pig cells into humans. We tried hard to get the Minister to front to give his side, but he refused. We gave you his written response in full, and that was there were still matters requiring consultation and he wasn’t prepared to discuss those.

Well, today the Minister put out a press statement having a crack at us, effectively saying that our interview with Professor Bob Elliott was not balanced and was masquerading as journalism. It ended by Mr Cunliffe saying he was considering a complaint under the Broadcasting Act. Well, we invite the Minister to do that, as we do with anyone who feels aggrieved. It’s also fair to say we have had a number of other emails from people who were very interested to see the issue being aired.   

5 September item

[16]   TVNZ broadcast a further item on Close Up on 5 September 2008. This item again dealt with issues of pig cell treatment for sufferers of Type 1 Diabetes, Professor Elliott’s frustration and the Minister’s role in the approval process.

[17]   At the beginning of the item, the presenter recapped the issues covered in the 20 May broadcast, stating:

It sounds like the stuff of science fiction. But very soon, pig cells could be tested in New Zealand as a treatment for Type 1 Diabetes. Back in May we spoke to the scientist Professor Bob Elliott, who hopes to run these trials. He was frustrated by how long it was taking to get the decision to go ahead. He blamed the Minister of Health saying there was no good reason for the delay. The Minister of Health, of course, fought back saying this was a critical decision and he had to make sure the treatment was safe. So where’s this at now? Here’s Gill Higgins with the latest on this controversial treatment. 

[18]   The reporter briefly discussed the history of the “controversial” treatment and why the New Zealand trials had been stopped previously and said that there were groups who had concerns about it.

[19]   The item contained an interview with a representative from GE Free, who discussed her concerns about the possibility of problems occurring in the future with people who had undergone pig cell treatment including the potential for the cells to break down releasing a virus.    

[20]   The reporter went on to say that no problems had been found with viral infection in laboratory testing and that trials had already begun in Russia, were being considered in North America and were being sought in New Zealand. The reporter then said:

But just look on the internet and you’ll still see all sorts of points of view. Some patient groups are fully behind this trial, but there are still others who think putting pig cells into humans is too great a risk. And it’s all of these opinions that the Minister of Health has to weigh up. He also has to be sure that the safeguards in place are strong enough, such as monitoring patients for the rest of their lives.

[21]   The reporter then commented that Professor Elliott had believed all the regulatory requirements had been met. She went onto say:

But Health Minister David Cunliffe says the Professor was wrong. The approval process was still going on and was being taken very seriously. He says the decision is complex, partly because the high probability of a positive impact on a limited number of sufferers needs to be balanced against the low probability of a potentially very serious porcine retrovirus affecting a wider population.

[22]   The reporter concluded by stating that sufferers of Type 1 Diabetes could lead long and healthy lives by injecting insulin, but that the new treatment offered them the potential to live a life free from injections.

[23]   The presenter concluded, “And we’ll keep you posted as to when a decision about this trial will be made”.  

Complaint

[24]   Through his lawyer, the then Minister of Health, David Cunliffe, made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the 20 and 21 May items lacked balance, fairness and impartiality. The complainant stated that “misleading impressions conveyed in the show contribute to all three grounds, which overlap to some degree”.

[25]   Mr Cunliffe argued that the need for the items to diligently display fairness, balance and impartiality was very high given:

• the programme’s presenter and authoritative expert stated that people were dying as a result of the Minister’s inaction
• the unanswered allegation that the Minister’s failure to sign was unlawful
• the likely effect on the Minister’s reputation of those allegations
• the fact that the expert used on the programme plainly had a financial and professional interest in obtaining the approvals sought
• the repeated and unchallenged view that the failure to sign was unrelated to any scientific, ethical or public health issues, and therefore must have been “political”
• the fact that the presenter lacked any objectivity and joined in the criticism levelled at the Minister
• the sensational nature of the claim made for the research that was awaiting approval, that the trials could “cure – not just treat, but cure – the 15,000 New Zealanders with Type 1 Diabetes”
• the fact that this claim was made in the introduction, which set the tone for the entire item, where it was repeated with little modification
• the emotive language and images that accompanied the item and reinforced the presenter’s subjective comments and commentary, and
• the way in which the entire programme was structured to invoke sympathy for the researcher and diabetes sufferers and correspondingly designed to invoke negative reaction to, and impression of, the Minister and the application process.

Impartiality

[26]   With respect to impartiality, the complainant contended the item broadcast on 20 May lacked partiality because it:

• took sides with its source
• introduced the item in a manner guaranteed to “excite criticism and antipathy toward the Minister”.
• extolled the benefits of the research without adequately mentioning the risks and difficulties involved
• prompted the suggestion that lives were being put in jeopardy by the Minister’s delay in signing
• suggested the delay was due to political considerations
• failed to challenge Professor Elliott’s repeated statements that the delay was not due to considerations of science, ethics or public safety, even though “many others are on the record expressing concerns about these matters”
• failed to challenge Professor Elliott’s statement that the Minister’s sign-off was only a formality
• failed to ask obvious challenging questions, and
• sympathised with Professor Elliott with statements such as “that must make you really angry”.

[27]   The complainant contended “in short, the whole programme was constructed to favour one perspective in the debate over all others”.

Balance

[28]   With respect to balance, Mr Cunliffe argued the item clearly raised a controversial issue of public importance which was “whether the Minister, by not approving the application, was endangering lives, breaking the law, disregarding the public interest, and acting for motives unrelated to science, ethics or public health”. He considered Close Up had failed in its obligation to make reasonable efforts to present significant views relating to the issue of pig cell transplantation in an objective and balanced manner.

[29]   The complainant argued that the item failed to make reasonable efforts to obtain the Minister’s view by fairly informing him as to the subject matter of the item and the concerns that were going to be raised by the researcher. He stated that his office had been contacted by Close Up on the morning of the programme and invited him “to discuss Living Cell Technology”. Mr Cunliffe said the reporter did not inform him that the item would “accuse him of being responsible for Diabetes sufferers’ deaths” that he was “acting unlawfully” and “acting for motives unrelated to science, ethics or public health” or omit other information and sources referring to the need for caution in connection with xenotransplantation.

[30]   Mr Cunliffe stated the most glaring omission was the failure to obtain other significant views such as that of Diabetes New Zealand, The New Zealand Society for the Study of Diabetes, the Sustainability Council or The International Xenotransplantation Association. He said all of these organisations had concerns about the testing and their views should have been included to provide balance. TVNZ should have been aware that the Minister’s declining to appear on the programme did not absolve the broadcaster of its responsibility to provide a balance of perspectives, he said.

[31]   The complainant pointed out that on 21 May, he issued a press release in response to Close Up’s programme stating among other things that:

• he had to undertake a proper and rigorous consideration of the issue including whether further consultation was desirable and that “relevant securities laws affected” what he could say about LCT’s application, as it was a publicly listed company.
• he had “to balance the likely benefits for a particular population against the low-probability – but extremely serious – risk to the wider population of a potential porcine retrovirus epidemic”
• the Minister’s role was not a mere rubber-stamping or formality
• the clinical trial was going to involve eight human subjects and was only a trial; it was not offering a cure
• the Close Up item was “an advertorial masquerading as journalism”.

[32]   Mr Cunliffe argued that the item broadcast on 21 May was unbalanced, because it omitted almost all of his points in rebuttal and explanation, and only partially conveyed the two points that it did make. He wrote that this attempt at balance was inadequate given that he was “directly and powerfully attacked on the programme the night before”.

Fairness

[33]   Turning to fairness, the complainant stated that the item’s lack of impartiality and balance also created unfairness. He said that the programme was unfair for much the same reasons as outlined under impartiality and balance, but that there were also other reasons, including the programme’s failure to provide context about the role of the Minister in the applications process, and the constraints on his ability to comment about it.

[34]   Mr Cunliffe argued that the programme presented his role as one of being merely a rubber stamp, when in fact it was “far from being a mere rubber stamp”. He stated he had a legal obligation to consider the adequacy of evidence advanced in support of the application, to assess the benefits, to weigh them against the risks, to ensure any risks were properly managed, and to consider the trial’s acceptability to the wider public. The programme did not seek to understand the Minister’s legislative duties and powers, and instead broadcast a misleading and simplistic description of them, he said.

[35]   The complainant contended that he was constrained in what he could say about LCT’s application because it was a publicly listed company and “no information that might affect its share price may be disclosed without notice to the Australian stock exchange”. He considered these matters ought to have been known to, and taken into account by “an experienced public broadcaster like TVNZ”. Mr Cunliffe stated that his office had mentioned this to Close Up’s reporter on 20 May when the reporter rang his office to advise them of the evening’s programme. He believed the programme should have mentioned this fact and by not mentioning it, both items made the Minister look evasive and irresponsible “compounding the programme’s unfairness”.

[36]   The Minister stated that Professor Elliott and the Chief Executive of LCT appeared to have accepted that the programme was unfair, when they wrote to him “the next day to say they did not intend to misrepresent his position and accepted that he had to weigh the possibility of a ‘serious retroviral infection affecting the wider population’, though that risk was low”.

[37]   In conclusion, Mr Cunliffe contended that the 20 May Close Up item made no attempt to provide any contextual or balancing information, even though it was readily available, and even though the programme compilers were specifically directed towards particular sources by his office. He also argued that the broadcaster failed subsequently to publish balancing information from the Minister’s press release in the item broadcast on 21 May.        

Standards

[38]   TVNZ assessed the complaint under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice. These provide:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[39]   TVNZ addressed the complaint in generally the same order as set out in the formal complaint “rather than on a per-standard basis”. It dealt with the item broadcast on 20 May 2008 first.

Impartiality

[40]   The broadcaster argued that the item’s introduction gave an accurate summary of the issue being addressed in the programme: “that is the time it was taking to obtain the Minister’s approval for testing a potential cure for Type 1 Diabetes, and the frustration of the researcher involved”. It stated that an item’s introduction seeks to highlight the issues in a way that will capture the attention of the viewers and that it should not be viewed in isolation, but “in the context of the whole package”. The story was about the views of a leading researcher frustrated by what he saw as unreasonable delays and the immediate issue was spelt out, that of the waiting for approval and the irritation of the researcher tempted to move elsewhere, it said. The broadcaster did not consider the item’s introduction excited criticism or antipathy towards the Minister.

[41]   TVNZ contended that the complainant’s view that the item emphasised the likelihood of the cure, extolled the benefits of the research and barely mentioned any risks or difficulties, misrepresented the premise for the story which concerned the delay in approving or rejecting the trial. It maintained that the item did not intend to debate the trial or the science involved and that it was “careful not to overstate the benefit of the treatment”. At no point was it categorically stated that the research was a sure-fire cure and reference to Professor Elliott’s work being a cure was prefaced by words such as “could”, “potential” and “believes”, it said.

[42]   The broadcaster noted its reporter had mentioned that the trials had been stopped because of fears pig viruses could be transmitted. It also noted that its reporter referred to the need for a “true scientific breakthrough” and that it required “experimental research”. It considered the item adequately referred to the risks involved in the treatment, “bearing in mind what this particular programme was about”.

[43]   With respect to the discussion that lives were being put in jeopardy by the Minister’s delay in signing, TVNZ stated that the essence of the discussion was to “give context to the time it was taking to get the testing underway and thereby give some context to the discussion”. It noted that Type 1 Diabetes could be fatal and that a logical consequence of delays in offering a potential cure was that people would continue to be sick and be prevented from any opportunity to receive the potential benefits of the new treatment. The broadcaster said “while this point was made in strong terms, it was a reflection of the clear depth of feeling of those who had been interviewed for the programme”. This helped viewers understand the context in which the comments were made, helping them “to form their own views about the issue”, it said.

[44]   In relation to the suggestion that the Minister’s delay in approving the testing was due to political considerations, the broadcaster contended that Professor Elliott mentioned it first “after it was established that he couldn’t figure out any other reason for the delay”. It said that Close Up’s presenter did not prompt the suggestion and that the presenter only referred to political issues one further time “in a logical follow up to the Professor’s point”. TVNZ noted all the hurdles the testing had already met and that “in the circumstances it is easy to understand why Professor Elliott felt frustrated and at a loss to explain the reasons for the time it was taking” to obtain authorisation.

[45]   Turning to the complainant’s contention that the presenter failed to challenge Professor Elliott’s repeated statements that the delay was not due to considerations of science, ethics or public safety, the broadcaster argued that “the only person qualified to challenge Professor Elliott’s statements was the Minister (or spokesperson)”. TVNZ pointed out it had invited the Minister to appear on the programme to put his perspective, but he had declined. It also noted that the presenter had read the Minister’s statement in full at the beginning of the interview and that it referred to “several matters still requiring further consultation and they are being processed”. The programme had been shown the various approvals that had already been provided and the only reason Professor Elliott was not challenged more on his statements was that the Minister refused to appear and explain his position, it said.

[46]   With respect to the complainant’s argument that the presenter failed to ask obvious challenging questions, TVNZ stated that it was not the function of the complaints process to evaluate hypothetical questions posed by a complainant and that it was an issue of editorial independence for TVNZ to formulate the questions put in news and current affairs interviews.

[47]   Responding to the contention that the programme sympathised with Professor Elliott, the broadcaster argued that the presenter’s comment “that must make you pretty angry?” was the only statement that could be interpreted as being sympathetic to the Professor. TVNZ argued that having sympathy for somebody’s cause was a tactic used by presenters in interviews to elicit further responses from the interviewee, and that one such statement did not constitute a lack of impartiality.

[48]   TVNZ noted that the complainant had listed three significant matters that may have been seen to undermine the key theme of the programme, but which were given very little attention, those being:

• Professor Elliott’s commercial interests in the application
• Professor Elliott’s admission that it was not clear that his research would provide a cure
• The programme’s failure to include or refer to other sources with more cautious views.

[49]   Responding to each concern in turn, the broadcaster contended that Professor Elliott had discussed the commercial position of Living Cell Technologies and that they could not “wait forever”. It contended the item had referred to the uncertainties involved in the treatment and that the story was about the time it was taking to get the approval process underway, not the rights and wrongs of the treatment itself. The Minister chose not to appear on the programme, his written statement was broadcast in full and “nothing more could have reasonably been done on the night”, it said.

Balance

[50]   TVNZ disagreed with Mr Cunliffe’s argument that Close Up failed to make reasonable efforts to obtain the Minister’s views. It pointed out that the live studio interview began with the presenter giving prominence to the Minister’s written response. The broadcaster said it was “satisfied that the programme made reasonable efforts to get the Minister on the programme on 20 May”, including the programme’s Wellington producer having discussions with Mr Cunliffe’s press secretary. It contended its Wellington producer left the Minister’s press secretary “in no doubt of the controversial nature of the story, the issue and the involvement and stance of Professor Elliott”. TVNZ said that the immediate response from the press secretary was “No, he won’t want to front on that, but I will get back to you” and that the press secretary “at the time appeared completely satisfied with the information given to him and sought no further clarification”.

[51]   The broadcaster contended that the item did not contain “any attack on the Minister” and that the thrust of the programme was to investigate the frustration a medical researcher felt at what he considered were inexplicable delays in the process. It considered that the item broadcast on 20 May was balanced.  

Fairness

[52]   With respect to the claim that the programme misrepresented the Minister’s role as one of rubber stamping, TVNZ said that the frustration felt by LCT was understandable considering the lengthy approvals process it had already met. It stated that “as far as Professor Elliott was concerned, the Minister was able to sign off the application with the existing approvals from his advisors” and that he was at a loss to explain the reasons for the delay; a view shared by the other studio guest Ms Purvis. The broadcaster argued that Professor Elliott was entitled to express this perspective and he did so in an authoritative way. The Professor did not say the Minister’s approval was a rubber stamp, but was saying as far as he was concerned, all issues that the Minister needed to consider had already been addressed and satisfied, it said.

[53]   TVNZ considered the Minister was given a more than reasonable opportunity to appear on the programme to put his perspective and, even though he declined to do so, his statement was read in full. It contended the opposing view was clearly set out before Professor Elliott gave his perspective and that it was clear to viewers that the Minister considered there were matters that were still outstanding. The broadcaster wrote that, “While that perspective was not presented with the same degree of force that was solely because the Professor was willing to appear on the programme and the Minister was not”.

[54]   The broadcaster noted Mr Cunliffe’s argument that he was constrained by what he could say about LCT’s application because it was a publicly listed company, and that no information that might affect its share price could be disclosed without notifying the Australian Stock Exchange. TVNZ disagreed with the argument and stated that it overlooked what the Minister was being asked to talk about on the programme. It said “we do not believe there was any real prospect that the Minister would have embarked on disclosing any information that could remotely affect LCT’s share price in Australia or in any other way make any preliminary announcement on the application”. TVNZ contended that the complainant’s concerns on this issue were unfounded and did not accept that the constraint justified the Minister’s refusal to appear. It said there was no reason why the Minister could not explain the process and the timeframe involved, and noted the issue had not been raised in the Minister’s statement that was read during the programme.

[55]   TVNZ argued that the complainant’s claim that Professor Elliott contacted the Minister’s office the day after the broadcast to “accept that it was unfair” was incorrect and that it was LCT’s CEO that contacted the Minister’s office. The broadcaster declined to uphold the complaint that the item broadcast on 20 May breached Standards 4 (balance), 5 (accuracy) and 6 (fairness).

Follow-up item broadcast on 21 May

[56]  TVNZ agreed that the follow-up item on 21 May did not sufficiently represent the views of the Minister from his press release that day. It upheld the balance aspect of Mr Cunliffe’s complaint concerning the follow-up item.

[57]   The broadcaster stated “in light of this discussion, Close Up intends to broadcast a follow-up item on the programme to address the issue of balance” and invited the Minister to appear on this programme. TVNZ broadcast this further item on 5 September 2008.

Referral to the Authority

[58]   Dissatisfied with the broadcaster’s response, Mr Cunliffe referred his complaint to the Authority under sections 8(1B)(b)(i) and 8(1B)(b)(ii) of the Broadcasting Act 1989.

Impartiality

[59]   The complainant argued that the 20 May programme “displayed all the BSA’s hallmarks of a lack of impartiality: emotive language and images, an introduction and leading questions designed to invoke a negative reaction against the Minister, sympathetic treatment of one side, a lack of robust questioning, telling only part of the story, and using an expert linked to one side”. He also maintained that he was not properly informed of the key allegations that were going to be advanced so that he could consider how best to respond.

[60]   It was difficult to see how viewers could form their own opinions about the allegations that the delay was killing diabetes sufferers, the complainant said, when it was not mentioned that the disease could be successfully managed and there was a risk to public health if something were to go wrong with the trials.

[61]   The complainant contended that criticisms of Professor Elliott’s research were “on the record” by well qualified experts and that the Minister’s office had referred TVNZ to these sources. He argued that the critical sources would have provided information to challenge Professor Elliott’s assertions made during the item.

[62]   Mr Cunliffe noted that the tone and tenor of Close Up’s follow-up programme in September was markedly different and the contrast illustrated the lack of impartiality in the original broadcast.

Balance

[63]   The complainant disagreed with TVNZ that the 20 May item did not look at the “rights and wrongs” of the treatment and that it was not intended to be a programme to debate the trial or the science involved. He argued Close Up did express views about the rights and wrongs “or at least the rights”, of the science and trial. He said “its own journalist reported as fact that all the risks associated with the trial had been resolved” and the item had repeatedly stated that the trials raised no scientific, public health or ethical concerns. Mr Cunliffe contended that the presenter “continually emphasised the importance of the research and its likely benefits”.

[64]   The complainant argued the issue discussed in the item was:

Did the Minister, by not approving the application, endanger public lives, break the law and disregard the public interest – for reasons unrelated to science, ethics or public health?   

[65]   Mr Cunliffe maintained that the broadcaster did not make reasonable efforts to obtain his views on the matter, because he was not properly informed of the key criticisms. He said that his statement for the 20 May item was prepared without knowledge of the range and seriousness of the criticisms being advanced, because TVNZ’s representative had not outlined them to his office. The Minister said his press secretary wrote a file note after speaking with TVNZ’s representative and said that the Minister had been invited on Close Up to discuss the progress with LCT and that Professor Elliott would be on the show. He said the note also stated “at no stage did  [TVNZ’s representative], who admitted to me that he did not really know what the story was about, say they were going to link the delays in the Minister’s approval to ‘deaths’ or that they saw the Minister’s action as a ‘rubber stamp’”.

[66]   Mr Cunliffe provided a copy of the file note to the Authority, along with a copy of a letter from LCT written to the Minister the day after the broadcast saying LCT did not intend to misrepresent the Minister’s position and acknowledging the risks of the treatment. He also provided another letter from the director of LCT to the Minister stating the programme was “quite inflammatory” and “clumsy”. The Minister also gave the Authority copies of reports and articles by various organisations on the issue of whether the trials should go ahead.      

[67]   With respect to the follow-up item broadcast on 5 September, the complainant argued it “made very little attempt to cover other significant viewpoints” for it only contained a brief sound-bite from a GE Free spokesperson and a “vague suggestion that there are ‘all sorts of points of view’ on the internet”. It hardly did justice to the expert and well-informed concerns held by the International Xenotransplantation Society, the Sustainability Council and the New Zealand Society for the Study of Diabetes, he said. The Minister noted that the September material was broadcast on a Friday evening when, he said, “Close Up’s viewership is markedly down” and almost four months after the original programme. He also pointed out that it did not mention the constraints he faced under the Securities Act.

Fairness

[68]   The complainant maintained that the 20 May and 21 May items treated him unfairly.

Conclusion

[69]   Mr Cunliffe reiterated his belief that the 20 May programme was “severely lacking in fairness, balance and impartiality” and made no attempt to provide any contextual or balancing information, even though it was readily available to TVNZ. He also maintained Close Up failed to subsequently publish balancing information from the Minister’s press release.

[70]   The complainant argued that the September item was inadequate to provide proper balance and that the action taken by TVNZ to rectify the breach was also inadequate.               

Broadcaster’s Response to the Authority

[71]   TVNZ responded to Mr Cunliffe’s referral in two parts, dealing first with the parts of the original complaint which were not upheld and second, with the action taken by Close Up in response to the upheld part of the complaint.

Response to the parts of the complaint not upheld

[72]   The broadcaster said that it did “not believe it was necessary or desirable to provide a detailed response” preferring to rely on the contents of the decision of its Complaints Committee, which it believed addressed the issues raised. However, it was concerned that the complainant had included several documents with his referral that had not been provided to TVNZ with his original complaint.  The broadcaster believed it should have been provided with a copy of the file note from the Minister’s press officer “linked to a point of contention over his discussion with our Wellington Close Up producer”. It found it “surprising” that this document had “emerged only now”.   

Response to that part of the complaint upheld

[73]   TVNZ stated that “in assessing this aspect, it is important to remember that the complaint was upheld in respect of the follow up item on 21 May because by that stage the Minister had issued a press release, but the substance of that press release was not reported in the item”.

[74]   It noted the Minister had declined Close Up’s invitation to appear in the September item and “it was entirely open for him or his staff to offer any information for the broadcast”. It noted “No request was made for an apology. No request was made to refer to the decision of the TVNZ Complaints Committee. No request was made to include any other specific information”.

[75]   It said the programme addressed the information provided in the Minister’s press release of 21 May and that it “fairly reported the substantive information that had not been included in May”.

[76]   TVNZ believed that it was not necessary or appropriate to broadcast an apology or to refer to its decision to uphold part of the Minister’s complaint. The objective was to provide the relevant information from the Minister and this was achieved, it said. It contended that it was not necessary to cover other significant viewpoints, as the upheld part of Mr Cunliffe’s complaint “pertained to the Minister’s press release only”, and only concerned “process issues” rather than the substantive debate. It noted that the September item did refer to representations of opposing viewpoints on the trials.

[77]   The broadcaster said that “while the four month period between the May and September broadcasts is regrettable, it was unavoidable”. It considered the programme made a genuine response to the TVNZ Complaints Committee’s decision, and that “this was done in a reasonable timeframe of the decision being released”.

[78]   TVNZ stated that Close Up intended to report the Minister’s decision when it was made, and this was referred to by the presenter at the close of the September item.

[79]   Responding to the complainant’s point that the September item was broadcast on a Friday, the broadcaster stated that it did not accept that Close Up’s viewership was “markedly down” on Friday evenings when compared to the rest of the week. It noted that the item was broadcast towards the front of the programme, and was a logical follow-on from the lead item regarding eating plans for diabetics and obese people.

[80]   TVNZ contended that the September item did not refer to the requirements of the Securities Act because including that detail was not considered necessary to properly portray the Minister’s response. The broadcaster said that it was understood that the Minister would not comment on the substance of the application before him and viewers did not need to be referred to the Securities Act to appreciate this fact.

[81]   In conclusion, the broadcaster argued that its investigation of the Minister’s complaint and the subsequent corrective action taken by it “were both in the spirit and the letter of corrective action” that the free-to-air code required.               

Complainant’s Further Comment

[82]   With respect to TVNZ’s concerns over the supporting documentation provided to the Authority with the referral, Mr Cunliffe contended there was no requirement to provide particular supporting documentation when making a complaint and that it was common for further material to be provided to the Authority during a referral.

Parts of the complaint not upheld by TVNZ

[83]   The complainant reiterated that the broadcaster “rejected, in their entirety” all of his concerns about the original programme broadcast on 20 May. He stated that he sought the Authority’s acknowledgement that the original programme made “exaggerated and inflammatory claims accusing the Minister of acting unlawfully and illegally and putting lives at risk”, that it overlooked obvious contrary views and was partial and unfair.

[84]   The Minister argued the September broadcast could not be relied on to provide the required balance. He noted that the broadcaster’s decision was that no further balancing material was required for the 20 May programme, and the breach of balance standard arose only because of the inadequate summary of the Minister’s press release the next day. The complainant reiterated his belief that the balance standard had been breached in the 20 May programme and that the September item did not achieve balance in respect of that programme. He also stated that, even if the Authority considered that the September broadcast did provide some balance, the broadcast came too late and was inadequate.

[85]   The complainant disagreed with TVNZ’s contention that the delay in broadcasting the material contained in the September item was “unavoidable” and contended that there was nothing to stop TVNZ broadcasting the material any time after it had received it.

The Minister’s role in the September programme

[86]   The Minister stated he had explained to TVNZ that he could not participate in the September programme because LCT’s application was still under active consideration. He noted that the broadcaster had not invited him to specify what information he thought should be included in the broadcast. Mr Cunliffe said when TVNZ decided to go ahead with the September item it had full knowledge of the context of the application and his views, as this information was contained in his original complaint of 10 June. Further, the complainant said, while TVNZ did include some of his views from his complaint that were not mentioned in his press release, it had left most of them out including:

• his reference to the cautionary views of the Sustainability Council, the New Zealand Society for the Study of Diabetes, the Health and Disability Commissioner and the International Xenotransplantation Association
• the evidence of similar trials that the treatment’s effects are likely to be short-term, not a “cure”
• the fact that other countries have not approved similar trials
• the fact that the governing legislation contained procedures and requirements the Minister was required to follow
• the fact that the securities law hampered his ability to comment publicly.  

[87]   Mr Cunliffe also noted that TVNZ did not broadcast the fact that its own Complaints Committee had found its earlier coverage unbalanced or express remorse for suggesting he was acting unlawfully and letting people die for political reasons.

[88]   The complainant stated the broadcaster could have provided a fair, impartial and balanced picture of the situation in a variety of ways including inviting a spokesperson from an organisation such as the Sustainability Council or the New Zealand Society for the Study of Diabetes on to the programme. He said the fleeting sound bite from one representative from GE Free New Zealand and the “vague” reference to “all sorts of points of view” on the internet was insufficient to portray the relevant significant points of view.      

Broadcaster’s Response to Complainant’s Further Comment

[89]   With respect to the complainant’s points concerning the additional documentation provided to the Authority, TVNZ stated that it acknowledged Mr Cunliffe was entitled to provide further documents not included in the original complaint. However, the broadcaster said that it would have been helpful for the complainant to have provided the documents to it from the outset, so that it could have had all the relevant material before it when making a decision. Further, it said that it would have been preferable for TVNZ to have been provided with a copy of the Minister’s press secretary’s file note pertaining to his discussion with the Close Up producer and noted that the producer no longer worked for TVNZ.

[90]   Turning to the issue of balance, the broadcaster maintained that the September broadcast could be relied upon by the Authority to achieve balance within the period of current interest, which logically extended until the Minister made his decision on the trials.

[91]   In relation to Mr Cunliffe’s contention that the September item was “too little too late”, TVNZ reiterated that the Minister had been invited to appear and that the material parts of the original press release had been included. It maintained the item did not need to go further than it did, as it addressed the material points and “clearly referred to the divergent views on the subject”. The broadcaster considered the complainant’s list of “other factors” that should have been included were not necessary to achieve balance.

[92]   TVNZ noted that on 21 October 2008, the Minister approved the trial. It stated that Close Up’s presenter made mention of the approval in the episode broadcast that day. The broadcaster said that it had inquired as to the Minister’s availability, “but because of extensive coverage by One News and other outlets that day, the reasonable decision was made not to repeat content” as there were no outstanding issues. It pointed out that the Minister’s announcement featured in news bulletins throughout the day on TVNZ and it provided the Authority with transcripts of those items. 

[93]   In summary, the broadcaster maintained the period of current interest continued until after the reporting of the Minister’s decision on 21 October, and included the Close Up items broadcast on 20 and 21 May, 5 September and 21 October.

Complainant’s Final Comment

[94]   The complainant stated that he was not trying to say that TVNZ should not have broadcast anything in September just because he could not appear, but merely that the broadcaster should have done a better job of summarising his views, and those of others, from the material available to it. 

Authority’s Request for Further Information

[95]   During a preliminary assessment of the complaint, the Authority noted that TVNZ had upheld the complaint that the 21 May item was unbalanced, because it “did not sufficiently represent the views of the Minister from his press release that day”. However, the original formal complaint from Mr Cunliffe also alleged the 21 May item was unfair and TVNZ did not address this aspect of the complaint in its decision.

[96]   The Authority invited TVNZ to make submissions on whether Mr Cunliffe had been treated fairly in the item broadcast on 21 May. 

[97]   In response, TVNZ summarised its understanding of the Authority’s question as “what is TVNZ’s response to the claim that the 21 May item was unfair by not referring to the constraint on the Minister commenting because LCT is a publicly listed company and bound by the requirements of the Securities Act?”

[98]   The broadcaster stated that it had addressed matters relating to this issue for the 20 May item in its decision under the heading “constraints on the Minister’s ability to comment”. Applying that to the broadcast of 21 May, it submitted “it was not unfair not to include that aspect of the press release” for several reasons. First, the 20 May item had already quoted in full the Minister’s written response provided to the programme, which explained why he was not prepared to discuss the issue, it said. The broadcaster noted Mr Cunliffe had not referred to the Securities Act in that statement.

[99]   Second, TVNZ contended the 21 May press release reiterated previous similar assertions, but also added that “...as LCT is a publicly listed company, the process is also bound by the requirements of the Securities Act”. It stated that “no further explanation or expansion was proffered, including what the requirements of the Securities Act were”.

[100]   Third, the broadcaster pointed out that, during the 20 May broadcast, the host told viewers “We tried hard to get the Minister to front to give his side but he refused” and that it had given his written response in full, noting that there were still matters requiring consultation and he was not prepared to discuss those. The broadcaster said it was clear that the Minister felt constrained in his ability to comment publicly on the merits of the application while it was still under consideration. TVNZ argued this fact was conveyed both in the 20 and 21 May items and viewers “would have understood that response”.

[101]   Fourth, TVNZ did not accept that it was necessary in the interests of fairness to include a general and unexplained reference in the media release to the Securities Act as a further reason for the Minister’s refusal to comment. The audience was already aware that the Minister considered he could not comment for bona fide reasons, it said.

[102]   The broadcaster concluded by stating “there is no obligation to broadcast a media release verbatim, and the decision not to refer to something cannot, of itself, be unfair”. While TVNZ accepted the 21 May broadcast was unbalanced, it did not consider the omission of this aspect of the media release to be unfair to Mr Cunliffe.

Authority’s Invitation for Further Submission

[103]   The Authority noted that, in TVNZ’s response to the Authority’s request for further information, the broadcaster focused narrowly on the issue of whether the 21 May broadcast should have referred to the Minister’s inability to comment because LCT was a publicly listed company.

[104]   The Authority advised TVNZ that it was likely to interpret the fairness complaint in more general terms than was covered in the broadcaster’s response. As a result, it invited TVNZ to make a general response on the fairness complaint.

[105]   TVNZ acknowledged that there was a broad and generic reference to fairness in the complaint. However, it stated that it was satisfied that those issues had been addressed by upholding the complaint about the 21 May item under Standard 4 (balance).

[106]   The broadcaster contended “to the extent that the complaint includes generic issues of fairness, we do not believe this represents the focus or the substance of the complaint in respect of the 21 May broadcast”. It argued that “upholding the complaint on grounds of fairness is not warranted in these circumstances, given our view that the complainant was fairly treated by Close Up”.          

Complainant’s Response to the Authority

[107]   Mr Cunliffe stated that the issue of fairness was squarely raised in the complaint and that the standards of balance and fairness overlap. He said one of the central points of the complaint was that he was accused of acting with political motivation, contrary to science, ethics and the public interest, in a manner that would invariably cause death to patients.

[108]   The complainant argued that the issue of constraints on his ability to comment was not the only aspect specified under the heading of unfairness, and that the programme failed to properly explain the Minister’s role.                  

Authority's Determination

[109]   The members of the Authority have viewed a recording of the broadcasts complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 4 (balance)

[110]   Standard 4 requires broadcasters to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest. The 20 and 21 May items discussed the issue of why the Minister of Health had not made a decision to either approve or decline the application for the proposed trial when, it was claimed, the science, ethics and public safety concerns had all been cleared by the Minister’s advisers. In the Authority’s view, this was a controversial issue of public importance to which the balance standard applied. 

20 May item

[111]   At the outset, the Authority notes that the complainant and the broadcaster provided conflicting accounts as to what the Minister’s press secretary was told by Close Up before the broadcast. However, irrespective of what he was told, the Authority has said on many occasions that a decision by an interested party not to participate does not absolve a broadcaster of the responsibility for ensuring balance (see, for example, Decision No. 2004-220). On this occasion, the Authority finds that the 20 May item was not balanced, for the following reasons.

[112]   In the Authority’s view, the programme suggested that the pig cell trial had universal approval and, because of this, there were no longer any outstanding issues or valid concerns preventing the Minister of Health approving the research. However, as demonstrated by the complainant, the proposed trial had far from universal approval; a number of reputable organisations had expressed serious reservations about the risks of the trial. Furthermore, rather than just accepting the advice given to him, the Minister had a separate legal obligation to weigh the benefits of the trial against the risks, to ensure any risks were properly managed, and to consider the trial’s acceptability to the wider public.

[113]   The broadcaster argued that the programme did not set out to debate the pig cell trial or the science involved in xenotransplantation; rather, it was intended to “examine the delay in approving or rejecting the pig cell trial”. The Authority accepts this, but considers that a balanced examination of the delay should have included a reference to the significant continuing concerns held by several groups, which the Minister of Health was required to take into account.

[114]   The Authority is of the view that it was the absence of this significant perspective that created the strong impression that the Minister was “sitting on his hands” for political reasons, and that he was merely a “rubber stamp”. It notes that the background piece which preceded the live studio interview carried only Professor Elliott’s view that there was nothing to prevent the Minister approving the research. In the absence of any information to the contrary, viewers were much less likely to give any credence to Mr Cunliffe’s brief statement that there were “several matters still requiring consultation”. 

[115]   The Authority notes that, rather than conduct its own inquiries, the programme appeared to rely on Professor Elliott’s assessment of the approval process. The Minister’s press secretary informed the Authority that, in addition to providing a statement from the Minister, he encouraged Close Up to contact the organisations which still had significant concerns about the trials, and whose concerns formed part of the Minister’s considerations. The Authority also observes that information about the Minister’s role was readily available through other public sources, such as the Medicines Act 1981¹.

[116]   In these circumstances, the Authority finds that the broadcaster did not make reasonable efforts on 20 May to present viewers with a significant perspective that was highly relevant to the issue of why the Minister had not approved or declined the application for the trial.

[117]   Importantly, however, Standard 4 states that balance can be provided by “other programmes within the period of current interest”. In the Authority’s view, the item broadcast on 5 September was still within the period of current interest on the issue of the trials, because the Minister did not make his decision until October 2008.

[118]   The Authority considers that the 5 September item adequately countered the view in the 20 May item that the approval process had been completed, and the Minister had merely to “rubber stamp” the trials. It included the following information from Mr Cunliffe’s press release of 21 May:

But Health Minister David Cunliffe says the Professor was wrong. The approval process was still going on and was being taken very seriously. He says the decision is complex, partly because the high probability of a positive impact on a limited number of sufferers needs to be balanced against the low probability of a potentially very serious porcine retrovirus affecting a wider population.

[119]   Further, the item included statements by the reporter such as:

But just look on the internet and you’ll still see all sorts of points of view. Some patient groups are fully behind this trial, but there are still others who think putting pig cells into humans is too great a risk. And it’s all of these opinions that the Minister of Health has to weigh up. He also has to be sure that the safeguards in place are strong enough, such as monitoring patients for the rest of their lives.

[120]   The Authority finds that these comments, combined with the statements made by the representative from GE Free, adequately informed viewers that there were differing significant points of view on the proposed trials and that the Minister had a vital role in deciding whether to approve them.

[121]   Accordingly, the Authority declines to uphold the balance complaint in relation to the item broadcast on 20 May.

Action Taken Complaint

21 May item

[122]   TVNZ upheld Mr Cunliffe’s complaint that the 21 May item breached Standard 4. The complainant argued that the item broadcast on 5 September was insufficient to remedy the lack of balance in that item.

[123]   For the same reasons outlined in paragraphs [118] to [120] above, the Authority considers that the action taken by TVNZ in broadcasting the 5 September item was adequate to redress any imbalance that occurred in the item broadcast on 21 May. Accordingly, the Authority declines to uphold the action taken complaint.

Standard 6 (fairness)

20 May item

[124]   The fairness standard requires broadcasters to deal justly and fairly with any person taking part or referred to in a programme. Having found that the item on 20 May was unbalanced, a majority of the Authority (Joanne Morris and Tapu Misa) considers that the item was also unfair to Mr Cunliffe. The omission of significant information about the decision-making process had the effect of portraying Mr Cunliffe as sitting on his hands for political reasons while people were dying. The majority considers that this was potentially damaging to Mr Cunliffe’s reputation, and was therefore unfair to him.

[125]   The Authority has found that the imbalance in the 20 May item was cured by the later broadcast on 5 September. While Standard 4 allows for balance to be provided in subsequent programmes during the period of current interest, the fairness standard contains no such provision. As a result, the majority finds that the broadcaster treated Mr Cunliffe unfairly by failing to provide a balanced picture of the background and context within which the Minister was making his decision – that is, that serious concerns remained which the Minister was required to consider. While the majority accepts that the Minister contributed to the situation by declining to appear, it concludes that the broadcaster should have done more to ensure that viewers were informed of the relevant background issues, rather than relying on the perspective of Professor Elliott, who was clearly not a neutral observer.

[126]   Having reached this conclusion, the majority must consider whether to uphold this complaint as a breach of Standard 6.

[127]   In Decision No. 2008-014, the Authority determined that upholding a complaint under Standard 6 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 6 in the following terms:

One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.

[128]   The majority must now consider whether it would be a reasonable and proportionate limit on TVNZ’s freedom of expression to uphold a breach of Standard 6 on this occasion. The majority has found that Mr Cunliffe was portrayed in a negative light because the broadcaster did not make reasonable efforts to investigate and report on the significant concerns which he was still taking into account. Had viewers been advised that the Minister had a legitimate role and serious issues to weigh up, the majority considers that viewers may well have been left with a very different impression about why he had not yet made a decision about the trial.

[129]   Upholding a breach of the fairness standard on this occasion would remind broadcasters to ensure that they deal with people referred to in an item in a just and fair manner. In this respect, upholding this complaint clearly promotes the objective of Standard 6 (as outlined in paragraph [127] above).

[130]   In these circumstances, the majority finds that upholding this part of the complaint places a justified and reasonable limit on TVNZ’s freedom of expression. Accordingly, it upholds the complaint that Close Up’s 20 May item breached Standard 6.

[131]   A minority of the Authority (Paul France) concludes that the 20 May item was not unfair to Mr Cunliffe. Mr France notes that governments in a functioning democracy, and their representatives, must accept scrutiny of their performance. He is of the view that the programme did not amount to a sufficient slur on Mr Cunliffe’s reputation to amount to unfairness. Mr France considers that finding a breach of the fairness standard on this occasion would be an unjustified limitation on the broadcaster’s freedom of expression as guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. The minority would decline to uphold the complaint that the 20 May item breached Standard 6. 

21 May item

[132]   While TVNZ upheld Mr Cunliffe’s complaint alleging that the follow-up item broadcast on 21 May was unbalanced, it did not uphold the complaint that the programme was also unfair to the Minister. The Authority is unanimous in its view that the Minister was treated unfairly in the 21 May item, because it did not adequately represent the views contained in his press release earlier that day.

[133]   Mr Cunliffe explained in his press release that “a proper and rigorous process” was still underway, including a consideration of the level and nature of stakeholder consultation and a final assessment of risk factors. He said the risk factors were hard to quantify but the government was taking any risk factor seriously. He added that his approval was not a mere formality, and while the trial involved only eight diabetes subjects, there were risks involved for the subjects as well as for the wider public.  However, none of this was reflected in the programme, the host stating only that:

Well, today the Minister put out a press statement having a crack at us effectively saying our interview with Professor Bob Elliott was not balanced and it was masquerading as journalism. It ended by Mr Cunliffe saying he was considering a complaint under the Broadcasting Act. Well, we invite the Minister to do that, as we do with anyone who feels aggrieved.  

[134]   Having reached this conclusion, the Authority must consider whether to uphold this complaint as a breach of Standard 6. It acknowledges that upholding the Standard 6 complaint would place a limit on the broadcaster’s right to freedom of expression. However, for the same reasons set out in paragraphs [127] to [130] above, the Authority considers that upholding this part of the complaint would be prescribed by law and a reasonable and proportionate limit on the broadcaster’s freedom of expression.

[135]   Accordingly, the Authority upholds the complaint that the Close Up item broadcast on 21 May 2008 breached Standard 6 (fairness).   

Standard 5 (accuracy)

[136]   In the Authority’s view, the complainant’s concerns regarding a lack of impartiality have been adequately dealt with in its consideration of Standards 4 (balance) and 6 (fairness). Accordingly, the Authority subsumes the Standard 5 complaint into its consideration of the balance and fairness standards.

For the above reasons a majority of the Authority upholds the complaint that the broadcast of Close Up by Television New Zealand Ltd on 20 May 2008 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

The Authority unanimously upholds the complaint that the broadcast of Close Up by Television New Zealand Ltd on 21 May 2008 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

[137]   Having upheld a complaint, the Authority may impose orders under sections 13 and 16 of the Broadcasting Act 1989. Having considered all the circumstances of the complaint, and taking into account that the decision to uphold the complaint about the 20 May item was not unanimous, the Authority concludes that an order is not appropriate. It considers that publication of the decision is sufficient.

Signed for and on behalf of the Authority

Joanne Morris
Chair
5 March 2009

Appendix

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

1.          The Hon. David Cunliffe’s formal complaint – 10 June 2008
2.         TVNZ’s response to the formal complaint – 13 August 2008
3.         Mr Cunliffe’s referral to the Authority – 8 September 2008
4.         TVNZ’s response to the Authority – 8 October 2008
5.         Mr Cunliffe’s further comment – 6 November 2008
6.         TVNZ’s response to Mr Cunliffe’s further comment – 21 November 2008
7.         Mr Cunliffe’s final comment – 1 December 2008
8.         TVNZ’s submission to the Authority – 11 December 2008
9.          Authority’s invitation for further submission – 30 January 2009
10.        TVNZ’s response to the Authority – 2 February 2009
11.         Mr Cunliffe’s response to the Authority – 2 February 2009

¹Medicines Act 1981 No 118 (as at 16 October 2008), sections 96E and 96F.