BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has declined to determine aspects, and not upheld the remainder of a complaint concerning a talkback call regarding vaccine mandates. The complainant had contacted the station and spoke about her son’s issues re-enrolling at university due to his COVID-19 vaccination status. The complainant alleged the broadcast breached the balance, accuracy and fairness standards as the host did not accept the complainant’s statements concerning the COVID-19 vaccine and related mandates, and prematurely ended the call with the complainant. The Authority declined to determine the complaint under the balance and accuracy standards as the complainant’s concerns have been recently determined in other decisions. The Authority did not uphold the fairness complaint, finding the complainant was not treated unfairly and in any case it was an editorial choice open to the broadcaster to end the call.

Declined to Determine (section 11(b) of the Broadcasting Act 1989, in all the circumstances): Balance, Accuracy

Not Upheld: Fairness

The broadcast

[1]  During the 14 January 2023 broadcast of Weekend Collective on Newstalk ZB, the complainant, Andrea Harold, called in and discussed her son’s issues with re‑enrolling at university due to his COVID-19 vaccination status.

[2]  The call included the following dialogue:

Harold:    But he was mandated out of the university. He couldn't study anymore. And at the beginning, it was kind of like, oh, they're being super cautious. But as time has gone on and it's been proven that, you know, that doesn't stop transmission and it was never designed to. There is no logic for that. So now he's being robbed of an education that he took in good faith and worked really, really hard for and is no longer able to study.

Host:        Surely he could go back now that we've got rid of mandates and things?

Harold:    No, we haven't got rid of mandates. There are a lot of occupations still mandated, and for some reason the universities for some degrees are still mandating.

Host:        That's interesting. I thought that we'd got rid of all the mandates – that they'd been scrapped. 

Harold:    Well, you would think so, given the transmissibility – whether you’re jabbed or not jabbed it makes no difference to transmissibility, so that alone gives them no leg to stand on, but they’re standing firm on it.

                                    …

Harold:    I have a research degree and so early on when I heard about it not being through the long term safety – [interrupted]

Host:        We just we don't want to get into that stuff because that's just - we'll get into a whole dicey area where, yeah, to be honest, I just can't be bothered.

Harold:    I'm only speaking to what's on the Pfizer website that the long term safety studies aren't completed until this year.

Host:        No, they are. We're just going to stop that there because I did ask you to stop. But I appreciate your point of view on that, Andrea.

The complaint

[3]  Harold complained the broadcast breached the balance, accuracy and fairness standards of the Code of Broadcasting Standards in New Zealand for the following key reasons:

• The host refuted the complainant’s statement the Comirnaty COVID-19 vaccine had not yet completed long term safety trials. She was also mistaken in claiming that all vaccine mandates for health workers had ended. The complainant considered these inaccuracies significantly affected listeners’ understanding of the item as this was an ‘important discussion that should have been allowed on air’, referring to the harms of the mandates and the alleged lack of scientific basis for the mandates.
• The host cut the complainant off before she could provide evidence for her claims.

The broadcaster’s response

[4]  NZME did not uphold Harold’s complaint for the following key reasons:

Balance

• ‘the Authority has clearly stated in a recent decision,¹ while some people may continue to hold different views regarding the safety of the COVID-19 vaccine, it is not a controversial issue for the purposes of the balance standard’.

Accuracy

• ‘the Authority in considering complaints relating to the safety of the COVID-19 vaccine, has found “the vaccine’s safety has repeatedly been accepted by medical authorities around the world”.²’
• ‘When the host stated, “No they are”, her point was that the Pfizer vaccine trials for the primary end points (efficacy and safety) had been completed late in 2020 and the Pfizer had been approved for use. It is standard practice for safety monitoring to continue after a vaccine has been approved for use. As such this statement is materially accurate and did not materially mislead the audience.’

Fairness

• ‘we are satisfied the host afforded you ample time to discuss your son’s predicament and that you were treated respectfully by the host. We do not consider by ending the call when she did the host treated you unfairly. We note that the host ended the call by thanking you for your contribution.’

The standards

[5]  The balance standard³ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.⁴ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.⁵

[6]  The purpose of the accuracy standard⁶ is to protect the public from being significantly misinformed.⁷ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

[7]  The fairness standard⁸ protects the dignity and reputation of those featured in programmes.⁹ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

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

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

Balance and Accuracy: Declined to determine

[10]  Section 11(b) of the Broadcasting Act 1989 authorises the Authority to decline to determine a complaint if it considers, in all the circumstances of the complaint, it should not be determined by the Authority. In this case, the Authority considers it appropriate to exercise its s 11(b) discretion.

[11]  The complainant’s concerns under these standards relate to the purported safety (or lack of) of the COVID-19 vaccines and the legitimacy of the vaccine mandates.

[12]  The Authority has repeatedly dealt with these issues, finding:

• The safety of the COVID-19 vaccine has been well established.¹¹
• The fact the vaccine was authorised under a provisional consent, or is subject to long-term monitoring, does not make comments on safety inaccurate or otherwise misleading¹² (and it is standard practice for long term monitoring following approval).¹³
• Vaccination has been shown to reduce the transmissibility of the COVID-19 virus.¹⁴

[13]  Further, listeners would have understood the host’s comments regarding whether the mandates had ended were clearly her questioning of the complainant rather than statements of fact to which the accuracy standard applies. In any event, we note COVID-19 vaccine mandates have been removed, with vaccination requirements at the discretion of each individual employer.¹⁵

[14]  In this context, we consider it appropriate to exercise our s 11(b) discretion to decline to determine these aspects of the complaint. We also note the broadcaster’s response appropriately directed the complainant to BSA decisions addressing the points raised – there is no need for this Authority to address these points any further.

Fairness

[15]  The complainant has alleged it was unfair the host cut her off before she could provide evidence for her claims. The key question is whether this resulted in any unfairness to the complainant.

[16]  A consideration of what is fair, and the threshold for finding unfairness to an individual, may take into account factors such as:¹⁶

• the nature of the programme and content
• the nature of the individual (ie the threshold for finding unfairness will be higher for a public figure, politician or organisation familiar with dealing with the media, as opposed to an ordinary person with little or no media experience)
• whether the programme would have left the audience with an unfairly negative impression of the individual
• whether any critical comments were aimed at the participant in their business or professional life, or their personal life
• the vulnerability of the individual.

[17]  Applying these to this case, we note:

• Weekend Collective is a live broadcast programme that delves into a variety of topics.¹⁷
• Talkback, and Newstalk ZB in particular, is known for its robust nature.¹⁸
• The complainant willingly called into the programme.
• The complainant is an ordinary person with little or no media experience and has not highlighted, nor are we aware of, any particular vulnerability.
• No critical comments were aimed at the complainant apart from disagreeing with her point regarding vaccine safety.

[18]  Taking into account the above factors, we do not consider the programme would have left listeners with an unfairly negative impression of the complainant.

[19]  Further, it was an editorial choice open to the broadcaster to end the call when they did, noting in particular the host had asked the complainant not to discuss the subject of vaccine safety, which the complainant ignored.¹⁹ It is within the broadcaster’s right to freedom of expression to choose what they broadcast, and we do not consider a restriction on this right demonstrably justifiable in this instance.

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

Susie Staley
Chair
16 May 2023   

Appendix

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

1  Andrea Harold's formal complaint to NZME – 29 January 2023

2  NZME's decision on the complaint – 1 March 2023

3  Harold's referral (with supporting information) to the Authority – 2 March 2023

4  NZME's further comments – 24 March 2023

5  Harold's response to NZME’s comments – 2 April 2023

6  NZME confirming no further comments – 26 April 2023

¹ Donald and Television New Zealand Ltd, Decision No. 2021-033 at [17].
² NZDSOS Inc and Television New Zealand Ltd, Decision No. 2022-005
³ Standard 5, Code of Broadcasting Standards in New Zealand
⁴ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 14
⁵ Guideline 5.1
⁶ Standard 6, Code of Broadcasting Standards in New Zealand
⁷ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
⁸ Standard 8, Code of Broadcasting Standards in New Zealand
⁹ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
¹⁰ Introduction, Code of Broadcasting Standards in New Zealand at page 4
¹¹ Donald and Television New Zealand Ltd, Decision No. 2021-033 at [17]; NZDSOS Inc and Television New Zealand Ltd, Decision No. 2022-005 at [21]; Clough and Television New Zealand Ltd, Decision No. 2022-053 at [22]
¹² NZDSOS Inc and Television New Zealand Ltd, Decision No. 2022-005 at [21]
¹³ “Fact check: It is standard practice for vaccine safety monitoring to continue after approval” Reuters (online ed, 13 February 2021)
¹⁴ Brevoort, Pridham & Stone and Television New Zealand Ltd, Decision No. 2021-154 at [18]–[19]
¹⁵ Hannah Martin “Take Five: Key questions answered as Government drops Covid-19 vaccine mandate” Stuff (26 September 2023); “Changes to the COVID-19 Protection Framework” Te Kaunihera Tapuhi o Aotearoa | Nursing Council of New Zealand <www.nursingcouncil.org.nz>; Unite Against COVID-19 “Vaccinations and work” <www.covid19.govt.nz>
¹⁶ Guideline 8.1
¹⁷ Newstalk ZB “The Weekend Collective” (accessed 26 April 2023) <newstalkzb.co.nz>
¹⁸ See for example Curran and NZME Radio Ltd, Decision No. 2021-165 and Grant & Findlay and NZME Radio Ltd, Decision No. 2021-117
¹⁹ See Grimwood and Radio New Zealand Ltd, Decision No. 2021-018 at [8] which noted it was a matter of editorial discretion for the broadcaster to manage the flow of the discussion and determine which issues, if any, would be touched on, or not.