BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Media 7 – discussed the Authority’s decision relating to TV3 investigation Let Us Spray and whether the programme should still have been awarded “investigation of the year” at the Qantas Media Awards – allegedly in breach of law and order, controversial issues, accuracy, fairness and discrimination and denigration

Findings
Standard 4 (controversial issues – viewpoints) – programme discussed the Authority’s decision – not a controversial issue of public importance to which the standard applied – appropriate viewpoints were sought and presented – not upheld

Standard 5 (accuracy) – most of the comments complained about were clearly opinion – other inaccuracies alleged were not material points of fact to which Standard 5 applied – not upheld

Standard 2 (law and order) – broadcast did not encourage, promote, condone or glamorise criminal activity – not upheld

Standard 6 (fairness) – community of Paritutu not a person or organisation under the fairness standard – not unfair to refer to complainant in the programme – not upheld

Standard 7 (discrimination and denigration) – broadcast did not encourage denigration of or discrimination against a section of the community – not upheld

This headnote does not form part of the decision.

Broadcast

[1]  An episode of Media 7, a weekly review programme dedicated to commentary and criticism of media issues, was broadcast on TVNZ 7 at 9.10pm on Thursday 20 August 2009. The episode centred around the Authority’s decision on a TV3 special documentary, Let Us Spray, which screened in October 2006.¹ As part of introducing the discussion, the programme’s presenter, Russell Brown, gave a short summary of Let Us Spray, saying:

TV3’s 2006 documentary special Let Us Spray is the kind of journalistic investigation we should applaud. Not only did the broadcaster give the programme’s producer, Keith Slater, and reporter, Melanie Reid, a year to do their work, it allowed 90 minutes of prime time for the final product. The story it told was extraordinarily important. It explored the belief that for decades the New Zealand government abetted the American firm Dow, and its local subsidiary, Ivon Watkins, in playing down the health risks of two controversial herbicides, 2,4,5-T and 2,4-D, that the country’s economic wellbeing had been set above our public health.

...It focused on one group, residents of the New Plymouth neighbourhood of Paritutu, on the doorstep of the Ivon Watkins Dow factory, and their descendants who believe that their harrowing generational health problems were a direct result of their exposure to a deadly contaminant in the herbicides, dioxin.

[2]   An excerpt of Let Us Spray was shown in which the reporter, Ms Reid, said, “they have talked about a cover-up – one of the biggest cover-ups in New Zealand’s history”. The presenter went on to say:

It was no great surprise that Let Us Spray was given a Qantas Award the following year [winner best investigation]. But this month, a Broadcasting Standards Authority decision set a cat amongst the pigeons. The BSA found that the programme had breached standards of fairness and balance in its treatment of the Ministry of Health and ESR, the Crown company that carried out tests to determine blood serum levels of dioxin amongst Paritutu residents.

The judges knew there had been a complaint to the BSA – a sharp letter from ESR lawyer Matt McClelland saw to that. What was at stake? A forensic accountant hired by the programme makers found fault with the handling of the study data. ...The study was peer-reviewed by four independent experts outside New Zealand. It was reviewed again by another set of experts in the wake of TV3’s claims. They also found it was robust and that [forensic accountant John Leonard’s] complaints were not material. The BSA found... it was not fair in failing to ask both the Ministry and ESR to respond to its allegations. So, did TV3 do the right thing and resist a Crown entity’s bullying over a peripheral issue? Or do the BSA’s decisions indicate there was something badly wrong with the story? The same questions might equally be applied to the Qantas judges. The answer is not simple.

[3]   Mr Brown first interviewed the producer of the documentary, Keith Slater, about whether he thought the documentary reflected a high standard of journalism, and his opinions on the Authority’s determination. Mr Slater started by saying, “I should quickly state that what I have to say here is my opinion and firmly held beliefs”.

[4]   The programme also discussed whether a programme that was found to have breached multiple broadcasting standards should have been awarded “investigation of the year” at the Qantas Media Awards in 2007, despite the fact that the judges had been advised of the serious concerns of the complainants about the balance, accuracy and fairness of the programme. Media 7 interviewed one of the complainants’ legal counsel, Matthew McClelland. Mr Brown then conducted a panel discussion about “what to make of the awards process now that Let Us Spray has officially been found wanting”. The panellists were Marie McNicholas (political editor of newsroom.co.nz, and also a former resident of Paritutu which was the subject of Let Us Spray), Rick Friesen (chair of the Television Broadcasters’ Council) and Phil Kitchin (investigative journalist).

[5]   During the closing credits, a disclaimer was displayed which stated:

The views, opinions and beliefs expressed on Media 7 are personal to the individuals concerned and do not reflect the views of TVNZ or those of Top Shelf Productions Ltd.

Complaint

[6]   Andrew Gibbs made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the programme breached standards relating to law and order, controversial issues, accuracy, fairness, and discrimination and denigration.

[7]   Looking first at law and order, Mr Gibbs argued that the programme made several references to allegations of corruption and a cover-up by the Ministry of Health in Paritutu and attempted to dismiss those allegations. He contended that the programme had gone beyond what the Authority had decided because the decision had not dismissed the allegations.

[8]   Turning to Standard 4 (controversial issues), the complainant argued that significant viewpoints were missing, namely those regarding the alleged wrongdoing by the Ministry and the views of the affected community. He considered that “the overall balance of the programme was heavily weighted against those exposed, who have suffered injury and death, and those making allegations of official wrongdoing”.

[9]   Mr Gibbs alleged that the programme contained a number of factually incorrect points relating to the peer reviews and criticisms of the ESR serum study which featured in Let Us Spray.

[10]   The complainant argued that people exposed in Paritutu, people advocating for them, and people alleging wrongdoing by officials were treated unfairly.

[11]   Finally, Mr Gibbs contended that the programme encouraged ongoing denigration of, and discrimination against, “those significantly exposed and impacted historically at Paritutu and their descendants”, as well as himself, John Leonard and Dr ‘Wildblood’ Crawford who featured in Let Us Spray.

Standards

[12]   Mr Gibbs nominated Standards 2, 4, 5, 6 and 7 of the Free-to-Air Television Code of Broadcasting Practice in his complaint. These provide:

Standard 2 Law and Order

Broadcasters should observe standards consistent with the maintenance of law and order.

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance 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.

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Standard 6 Fairness

Broadcasters should deal justly and fairly with any person or organisation taking part or referred to.

Standard 7 Discrimination and Denigration

Broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status, or as a consequence of legitimate expression of religion, culture or political belief.

Broadcaster's Response to the Complainant

[13]   Referring to the Authority’s practice note on Standard 2, TVNZ said that to breach the standard a broadcast would have to implicitly condemn a particular law and actively promote disrespect for it. TVNZ considered that the programme did not glamorise or condone criminal activity. It disagreed with the complainant that the focus of the programme was dismissing allegations of cover-up and corruption. Regardless, it maintained that there was no element of promotion or encouragement. It said that “even if the item agreed that there was no ‘cover-up’ of chemical exposures and deaths and health issues associated with the chemical exposure, that is a completely different matter to condoning or glamorising an illegal action”. It declined to uphold the Standard 2 complaint.

[14]   Looking at Standard 4, TVNZ accepted that the issue of health effects on a community caused by exposure to chemicals would be considered a controversial issue of public importance. However, it was of the view that that was not the focus of the programme. Media 7 sought to question the programme producer after Let Us Spray had been found wanting by the BSA and in breach of standards, it said, and this was not a controversial issue as envisaged by Standard 4.

[15]   TVNZ noted that Keith Slater was given “ample scope” to discuss his and the programme’s perspectives. It disagreed with the complainant that the focus of the programme was the validity of the research regarding dioxin levels in Paritutu. Rather, the focus was the quality of journalism in Let Us Spray in light of the Authority’s decision. The presenter offered his opinion, which was rebutted by Mr Slater, TVNZ said. Further, TVNZ noted that there was no “stopwatch” method for determining whether balance had been achieved. The broadcaster did not uphold the Standard 4 complaint.

[16]   With regard to the alleged inaccuracies raised by Mr Gibbs, TVNZ asserted that it was clear from the programme that Mr Brown and Mr Slater were presenting their personal opinions about the quality of journalism demonstrated in Let Us Spray. The interview was not an in-depth look at the issues surrounding the exposure of the Paritutu residents to dioxin or subsequent health effects, it said. TVNZ considered that “the interview was opinion-based and did serve to enlighten the viewer on the alternative perspectives on the issue of the Let Us Spray programme and subsequent BSA uphold. These views were given a fair hearing. This discussion of opinions is permitted under guideline 5a.” TVNZ therefore declined to uphold any aspect of the accuracy complaint.

[17]   Looking at fairness, TVNZ reiterated that the focus of the programme was the quality of journalism on Let Us Spray in light of the BSA decision and the Qantas Media Awards, not the Paritutu people or their advocates. TVNZ said that, while it had sympathy for the complainant’s position on these matters, the people of Paritutu were not discussed or referred to in the programme. It declined to uphold the Standard 6 complaint.

[18]   Turning to Standard 7 (discrimination and denigration), TVNZ noted that the Authority had, since 1992, consistently defined denigration as blackening the reputation of a class of people, and that a high threshold must be crossed to find a breach, in light of the Bill of Rights Act and the right to free speech. TVNZ maintained that nothing in the programme had denigrated or discriminated against any group or person, and declined to uphold the Standard 7 complaint.

Referral to the Authority

[19]   Dissatisfied with the broadcaster’s response, Mr Gibbs referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Authority's Determination

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

Standard 4 (controversial issues – viewpoints)

[21]   Standard 4 states that when controversial issues of public importance are discussed in news, current affairs and 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.  

[22]   The Authority has previously defined a controversial issue of public importance as something that would have a “significant potential impact on, or be of concern to, members of the New Zealand public” (for example, Powell and CanWest TVWorks²).

[23]   The Authority notes that Mr Gibbs’ complaint contends that Media 7 focused on the same issue as Let Us Spray – namely, whether public health authorities had adequately acted on the beliefs of the people of Paritutu that dioxin exposure had caused serious health effects for them.³

[24]   However, in the Authority’s view, Media 7 focused on whether Let Us Spray should have been given a Qantas Media Award given the Authority’s finding that the programme breached broadcasting standards. It considers that, while of interest to certain groups in society, this did not amount to a discussion of a controversial issue of public importance to which Standard 4 applied.

[25]   For the record, the Authority is of the view that the broadcaster made reasonable efforts to present significant viewpoints from the Let Us Spray producer, ESR’s legal counsel, and journalists, on the topic of the Authority’s decision and its implications in relation to the Qantas Media Awards.

[26]   Accordingly, the Authority declines to uphold the Standard 4 complaint.

Standard 5 (accuracy)

[27]   Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. Mr Gibbs alleged that the following aspects of the programme breached the accuracy standard:

• the reference to the number of reviewers who reviewed John Leonard’s, and Mr Gibbs’ criticisms of the ESR study
• the claim that the 2007 peer reviewers were provided with corrected data
• the claim that the 2007 peer reviewers had specifically investigated and found Mr Leonard’s and Mr Gibbs’ observations to be immaterial
• the claim that the 2007 peer reviewers were giving “expert opinion”
• the claim that Dr Fowles who authored the ESR report had amended the study results due to “new information”
• Mr Brown’s statement that a biostatistician had reviewed the data and was “scathing” of John Leonard’s claims
• Mr Brown’s statement that “they also found that there may have been an exposure period after 1974”
• Mr Brown’s comment that “there were things which you could have legitimately bagged the Ministry of Health for”
• the inference “that the ‘bagging’ of the MOH over the serum study was not legitimate”
• Mr Brown’s question, “Do you accept that there are a great many scientists who are deeply offended by what you did with that programme?”.

[28]   Guideline 5a states that the accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion. In the Authority’s view, it was clear in the programme that the host and his guests were offering their opinion on, and analysis of, the Authority’s Let Us Spray decision and what that might mean for the judging criteria for the Qantas Media Awards.

[29]   With regard to the specific points raised in relation to the subject matter of Let Us Spray, the Authority finds that these were incidental to the focus of the Media 7 item, and therefore were not “material points of fact” to which Standard 5 applied. In the Authority’s view, it is clear from Mr Gibbs’ complaint that he believed the programme was revisiting the matters raised in the Let Us Spray documentary. As noted in paragraphs [23] and [24] above, this was not the purpose or focus of this episode of Media 7.

[30]   Given that the points raised by Mr Gibbs were not material to the programme, or were clearly statements of opinion, the Authority declines to uphold the Standard 5 complaint.

Standard 2 (law and order)

[31]   The Authority has previously stated that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity (see, for example, Gregory and TVNZ⁴). Mr Gibbs argued that the programme dismissed allegations of cover-up and corruption that were raised in Let Us Spray, and that the discussion went beyond what the Authority had decided.

[32]   In the Authority’s view, nothing in the programme could be said to have encouraged, promoted, condoned or glamorised criminal activity in contravention of the law and order standard. As stated above, the programme’s focus was the Authority’s decision and what implications that could have with regard to the Qantas Media Awards.

[33]   Accordingly, the Authority declines to uphold the Standard 2 complaint.

Standard 6 (fairness)

[34]   Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. The complainant argued that people exposed to dioxin in Paritutu, people advocating for them, and people alleging wrongdoing by officials were treated unfairly.

[35]   Standard 6 applies only to individuals and organisations. The Authority therefore finds that the fairness standard does not apply to the groups of people referred to by the complainant.

[36]   The Authority notes that the only person advocating for the people of Paritutu or alleging wrongdoing by officials who was explicitly “referred to” in the programme was the complainant. Keith Slater referred to Mr Gibbs providing new evidence which led to one of the ESR study authors revising his original conclusions. There was also an image of him shown in a clip from Let Us Spray during the host’s summary of the documentary.

[37]   The Authority has previously stated that one purpose of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. It considers that a simple reference to Mr Gibbs and a brief image of him shown in relation to Let Us Spray were not unfair, taking into account that he openly advocates for the people of Paritutu who were the focus of the documentary.

[38]   Accordingly, the Authority declines to uphold the fairness complaint.

Standard 7 (discrimination and denigration)

[39]   Standard 7 protects against broadcasts which encourage denigration of, or discrimination against, a section of the community on account of race, sex, sexual orientation, age, disability, or occupational status.

[40]   Mr Gibbs contended that the programme encouraged ongoing denigration of, and discrimination against “those significantly exposed and impacted historically at Paritutu and their descendants”, as well as himself, John Leonard and Dr ‘Wildblood’ Crawford who featured in Let Us Spray. In the Authority’s view, none of those people could be considered a “section of the community” to which Standard 7 applies. It therefore declines to uphold this part of the complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
23 March 2010

Appendix

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

1.           Andrew Gibbs’ formal complaint – 17 September 2009
2.          TVNZ’s response to the complaint – 15 October 2009
3.          Mr Gibbs’ referral to the Authority – 12 November 2009
4.          TVNZ’s response to the Authority – 21 January 2010

¹Ministry of Health and TVWorks, Decision No. 2007-012; ESR and TVWorks, Decision No. 2007-015

²Decision No. 2005-125

³See MOH and CanWest TVWorks, Decision No. 2007-012 at paragraph [191]

⁴Decision No. 2005-133