BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint under the accuracy and balance standards about an item discussing the impact of the Hazardous Substances and New Organisms Act 1996 (the HSNO Act) on medical research, particularly in the context of COVID-19 vaccines. The item contained opinions from three scientists, which were not subject to the factual accuracy requirement and were presented accurately. The item was not required to include detail about how the HSNO Act regulated outdoor use of genetic modification compared to medical or laboratory use, as this was not material to the broadcast. The item also contained differing views, so balance was achieved within the programme.

Not Upheld: Accuracy, Balance

The broadcast

[1]  An item on Newshub Live at 6pm broadcast on 8 May 2021 discussed the Hazardous Substances and New Organisms Act 1996 (the HSNO Act). It opened, ‘A leading immunologist says New Zealand's genetic modification law is outdated and has stifled work on a COVID-19 vaccine.’ Professors Graham Le Gros (Malaghan Institute Research Director), Jack Heinemann (Genetics, University of Canterbury), and Kurt Krauss (Biochemistry, University of Otago) provided their views:

Prof Le Gros:        It [the HSNO Act] absolutely compromises [and] increases by tenfold the cost of the work here. It pains me.

…

Reporter:             Genetics professor Jack Heinemann believes the law is still fit for purpose.

Prof Heinemann:   The way we regulate [the use of genetic modification] helps us to identify those risks, to produce safe biotechnologies for release rather than find out about the harm after release.

Reporter:              Though, Heinemann agrees, if it's holding back medical research, the law should be reviewed, something biochemistry professor Kurt Krauss says needs to happen fast.

Prof Krauss:         We want to make sure that our laws are not preventing us from adapting to what COVID is doing.

The complaint

[2]  Linda Grammer complained the item made ‘misleading/false claims’ about the HSNO Act and genetic engineering/genetically modified organisms (GE/GMOs). She argued it breached the accuracy and balance standards:

• It was inaccurate to say the HSNO Act was ‘stifling’ medical research. ‘HSNO provides for ethical and humane medical research in the laboratory (and this is not being blocked in NZ) and some [GE/GMO] vaccines are in use already in NZ.’
• There was ‘significant imbalance in the views presented’ with two interviewees supporting removal of GE/GMO regulation and ‘only one noting the importance / efficacy of existing rules in HSNO Act’.
• The statement ‘Heinemann agrees, if it’s holding back medical research…’ was misleading, as ‘my understanding is that Dr. Heinemann does NOT agree that the HSNO Act is holding back ethical, humane medical research’.
• The item did not distinguish between ‘stricter’ regulation on outdoor use of GMOs, which some are ‘very happy’ about, and ‘the permissive regime for ethical and humane medical research in the laboratory’.
• ‘The news item seemed to reflect the personal bias/goal of the reporter/journalist to see deregulation of gene editing in NZ… [It] should have noted that outdoor GE/GMO experiments/ field trials or environmental release is entirely different from vaccine research and development.’

[3]  Ms Grammer also raised the fairness and programme information standards in her referral to the BSA. However, pursuant to section 8(1B) of the Broadcasting Act 1989, we are only able to consider standards raised in the original complaint to the broadcaster. As the additional standards were not explicitly or impliedly raised in her original complaint, we cannot consider them now. In any event, we consider the accuracy and balance standards are most relevant to the concerns she has raised.

The broadcaster’s response

[4]  Discovery did not uphold the complaint for the following reasons:

Accuracy

• The item presented ‘genuinely held opinions of the scientists featured, and…their comments were identifiable as their opinions’.
• ‘The Broadcast endeavoured to explain what GMO was in simple terms and then showed the different examples it has been used for eg. medical research, plants and crops to provide context for viewers who may not understand what GMO is.’ This explanation did not contain any material errors of fact.

Balance

• The item included ‘significant alternative viewpoints on this issue’.
• ‘The audience heard from Professor Graham Le Gros, the Malaghan Institute Research Director, Professor Jack Heinemann, Canterbury University Genetics and Professor Kurt Krause, Otago University Biochemistry, each of whom offered their views on the issue under discussion and provided the audience with sufficient information to form their own views on the topic.’
• ‘Balance is not achieved by a stopwatch. Just because one side of a debate has more airtime than another does not necessarily lead to a breach of this standard. The standard requires that alternative perspectives are presented… Professor Heinemann's perspective was clear for viewers.’

The standards

[5]  The purpose of the accuracy standard¹ is to protect the public from being significantly misinformed.² It states broadcasters should make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead. The requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.³

[6]  The balance standard⁴ 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.⁵ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.⁶

Our analysis

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

[8]  We note the complainant referred to online material published by Discovery along with the item which was broadcast. Our jurisdiction does not extend to online material,⁷ so we have only considered the broadcast item.

[9]  The right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only intervene and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified. In this case we are required to determine whether the item may have caused harm by misleading the public or failing to provide the audience with sufficient information to reach an informed opinion.

Accuracy

[10]  Audiences may be misinformed in two ways: by incorrect statements of fact within the programme; and/or by being misled by the programme as a whole.⁸ Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’⁹

[11]  Ms Grammer identified the following as allegedly inaccurate:

(a)  The HSNO Act was ‘stifling’ medical research.

(b)  The item conflated the use of GE/GMOs in an outdoor environment with laboratory/medical environments, which are each regulated differently.

(c)  The item misrepresented Prof Heinemann’s views by implying he agreed the HSNO Act was ‘holding back medical research’.

(a) The HSNO Act was ‘stifling’ medical research

[12]  The standard does not apply to statements of comment, analysis or opinion.¹⁰ An opinion is someone’s view. It is contestable, and others may hold a different view.¹¹

[13]  In this case, we found that the statements about the effect of the HSNO Act on medical research were comment and analysis. The statements were made by interviewees who were scientists speaking as experts in their fields, or were appropriately attributed to the interviewees in the item. The impact of regulation on those it regulates is inherently a matter of analysis and opinion, and therefore the accuracy standard does not apply.

(b) Conflating the use of GE/GMOs in different contexts

[14]  Ms Grammer submitted the item did not distinguish between ‘stricter’ regulation on outdoor use compared to ‘the permissive regime’ for medical research and laboratory use.

[15]  The standard is concerned only with material inaccuracy. For example, technical or unimportant points unlikely to significantly affect the audience’s understanding of the programme as a whole are not material.¹²

[16]  We found this point to be immaterial to the broadcast. The item was simplifying a complex regulatory scheme for the purpose of focusing on a specific issue, the impact of the HSNO Act on medical research, particularly relating to COVID-19 vaccines. In this context it was not necessary or relevant to clarify how much less restrictive the HSNO Act is in the medical as opposed to outdoor context.  Restrictions applicable in the outdoor context have no bearing on the issues expressed by the interviewees.

[17]  We are also satisfied there was no conflation of the two regimes which may have misled viewers. The broadcast was focused on the HSNO Act’s implications in the medical research context. The item’s inclusion of additional background for viewers regarding other contexts in which GMO issues are encountered, and background on previous calls to review the HSNO Act, was unlikely to confuse viewers regarding the scope and intent of the interviewees’ comments. Reasonable viewers were likely to appreciate that different situations call for different legislative regimes.

(c) The item misrepresented Prof Heinemann’s views

[18]  We do not agree with the complainant’s interpretation that viewers would have been lead to believe Prof Heinemann agreed with the other interviewees. His comments were preceded with the statement ‘genetics professor Jack Heinemann believes the law is still fit for purpose’ and he provided his reasons for this view in his own words. The statement ‘Heinemann agrees, if it's holding back medical research, the law should be reviewed’ did not undermine Prof Heinemann’s explanation as to why the law was fit for purpose, and was qualified with the word ‘if’.

[19]  For the above reasons, we do not uphold the complaint under the accuracy standard.

Balance

[20]  The balance standard only applies to news, current affairs and factual programmes which discuss controversial issues of public importance. Breakfast is a news and current affairs programme, and we consider that this item which examined whether the HSNO Act required reform (in particular because it was holding back medical research) amounted to a discussion of a controversial issue of public importance for the purposes of this standard. In the context of the COVID-19 pandemic, regulation of medical research is of public importance, and the regulation of GE/GMOs is a controversial issue, subject to opposing views.

[21]  The objective of the balance standard is to enable the audience to arrive at an informed and reasoned opinion (which is important to the operation of an open and democratic society).¹³ No set formula can be advanced for the allocation of time to interested parties on controversial issues of public importance.¹⁴

[22]  Ms Grammer was concerned there was only one opposing view to the idea put forward in the broadcast, that the HSNO Act was outdated. The relevant question under the balance standard is whether the broadcaster has made reasonable efforts to present significant points of view on the controversial issue discussed. Who presents those views and how they are presented, are matters of editorial discretion for the broadcaster.

[23]  In this case we found the broadcaster met its obligations under the balance standard to adequately present balancing views within the programme as Prof Heinemann provided an authoritative opposing viewpoint to those of Profs Le Gros and Krauss. In addition, it was apparent from the reporting regarding the ‘thousands [who] protested the release of GMOs into New Zealand’ that there were alternative perspectives regarding the value of the HSNO Act restrictions.

[24]  Audiences were therefore unlikely to have been left misinformed by the broadcast.

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

Susie Staley
Acting Chair
24 August 2021    

Appendix

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

1  Linda Grammer’s complaint to Discovery – 24 May 2021

2  Discovery’s decision on the complaint – 21 June 2021

3  Ms Grammer’s referral to the BSA – 28 June 2021

4  Discovery’s confirmation of no further comments – 7 July 2021 

¹ Standard 9 of the Free-to-Air Television Code of Broadcasting Practice
² Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
³ Guideline 9a
⁴ Standard 8 of the Free-to-Air Television Code of Broadcasting Practice
⁵ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁶ As above
⁷ Section 6, Broadcasting Act 1989
⁸ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁹ Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
¹⁰ Guideline 9a
¹¹ Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 62
¹² Guideline 9b
¹³ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹⁴ Guideline 8b