Institute of Environmental Science and Research and Ministry of Health, and Canwest TVWorks Ltd - 2007-013
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Institute of Environmental Science and Research
- Ministry of Health
BroadcasterCanWest TVWorks Ltd
Channel/StationTV3 # 2
CanWest TVWorks Ltd became TVWorks Ltd on 15 June 2007. Because the programme complained about was broadcast prior to this date, the broadcaster is still named as CanWest TVWorks Ltd (CanWest) except for the purpose of orders.
Complaint under section 8(1)(a) of the Broadcasting Act 1989
3 News – news item referring to previous evening's TV3 programme entitled Let Us Spray – discussed a serum study investigating exposure to dioxins among residents of Paritutu – allegedly unbalanced, inaccurate and unfair
Standard 4 (balance) – subsumed into consideration of Standards 5 and 6
Standard 5 (accuracy) – three inaccurate statements – upheld
Standard 6 (fairness) – unfair to ESR – upheld
Section 13(1)(a) – broadcast statement
Section 16(1) – costs to ESR $3,000
Section 16(4) – costs to the Crown $2,500
This headnote does not form part of the decision.
 An item on 3 News, broadcast on TV3 at 6pm on 24 October 2006, stated that the Minister of Health was promising answers after a special TV3 "current affairs investigation exposed serious flaws in the way health officials assessed dioxin contamination" from the Ivon Watkins Dow chemical plant in New Plymouth. The item was referring to a serum study contracted by the Ministry of Health (MOH), and conducted by the government-owned Institute of Environmental Science and Research (ESR), which investigated non-occupational exposure to dioxins among residents of Paritutu, a suburb of New Plymouth.
 The reporter said that in a programme the previous evening, entitled Let Us Spray, forensic accountant John Leonard said that "high levels of dioxin contamination from the factory were obscured by the way the Ministry of Health did its sums".
 The item included an interview with an elderly woman whose "case went missing in the Ministry’s report", which was one of the "serious statistical errors identified by Leonard".
 Footage of another former New Plymouth resident in her home was shown as the reporter said:
Fiona Thomson-Carter lives in Wellington where she watched last night's programme with horror. She says for the first time it all made sense when she saw her uncle and cousin on the screen.
 The woman outlined the various health conditions suffered by her family. A caption at the bottom of the screen said "Dr Fiona Thomson-Carter".
 The reporter then said that a copy of Mr Leonard's investigation had been handed to MOH and ESR officials that afternoon. Dr Mark Jacobs, the Ministry’s Director of Public Health, said that both MOH and ESR wanted to look closely at the report and would arrange a discussion with Mr Leonard.
 MOH and ESR made separate formal complaints about the item to CanWest TVWorks Ltd (CanWest), the broadcaster.
 MOH contended that the broadcast was in breach of Standards 4 (balance), 5 (accuracy) and 6 (fairness) in the following ways:
- the item incorrectly presented as fact that TV3 had exposed serious flaws in the way health officials assessed dioxin contamination from the Dow plant
- the item incorrectly presented as fact that the previous evening’s programme (Let Us Spray) had found dangerously high levels of dioxin were buried or forgotten because of the way the Ministry did the calculations in its report
- the item highlighted the claim by John Leonard that high levels of dioxin contamination from the factory were obscured by the way the Ministry did its sums
- none of these claims was challenged or appropriately balanced.
 With respect to Standard 4 (balance), the complainant said that the report in question was commissioned by MOH but had been undertaken independently by ESR. The study had been peer reviewed by international experts, it wrote, before being provided to MOH. Information setting out ESR's efforts to ensure the study was scientifically robust had been sent to the broadcaster by MOH on 20 October 2006.
 MOH noted that Dr Jacobs had been interviewed for the item, but believed that criticism of the science behind the report should have been put to ESR. It said that MOH had ensured that Dr Fiona Thomson-Carter from the ESR was available at the interview to answer these concerns, but no comments from ESR were included in the item. MOH maintained that the failure to broadcast ESR’s view was a serious breach of balance.
 The complainant also noted that Dr Thomson-Carter's name was incorrectly attributed to a former New Plymouth resident who was interviewed in the item (see paragraph ).
 Looking at Standard 5 (accuracy), MOH said that the claims outlined in paragraph  above had been attributed to John Leonard. It argued that Mr Leonard did not have any recognised expertise in any of the fields relevant to the study. Further, MOH noted that a summary of Mr Leonard’s criticisms had been included in the Let Us Spray programme the previous evening, but without any significant detail. Those criticisms were then presented as fact in the 3 News item, when there was no evidence that they were valid. MOH noted that the broadcaster had not sought the views of any other experts.
 With respect to Standard 6 (fairness), MOH contended that the broadcaster’s continued and deliberate decision to broadcast criticisms of the ESR report without seeking comment from ESR was a breach of natural justice and was unfair.
 ESR noted that Dr Thomson-Carter had been interviewed by 3 News on camera with Dr Jacobs for approximately half an hour on the day of the broadcast. She had responded in detail to Mr Leonard's report and criticisms of ESR, it said. However, the news item did not include any part of the interview with Dr Thomson-Carter. ESR said that the item had included "damning descriptions" of ESR's report even though the broadcaster was well aware that there were serious doubts about Mr Leonard’s expertise and criticisms. It pointed out that the news item had claimed that Let Us Spray had "exposed serious flaws" and found that dangerously high levels of dioxin were "buried or forgotten", and had made references to "serious statistical errors".
 The complainant maintained that no effort had been made to balance these "wild" and "untested" allegations. It said that ESR had asked the broadcaster for a copy of the interview with Dr Thomson-Carter the following day, but had been advised that it no longer existed.
 ESR also observed that Dr Thomson-Carter's name had been "wrongly attributed to a woman who claimed her family had been poisoned by dioxin".
 CanWest assessed the complaint under the standards nominated by the complainants. They 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
 In response to both MOH and ESR, CanWest apologised for misattributing Dr Thomson-Carter’s name.
 The broadcaster said that, while Dr Jacobs and Dr Thomson-Carter both contributed to the interview for the news item, it was felt that the excerpt used from Dr Jacobs' interview fairly represented the position of the "whole of government approach" to the Paritutu residents’ situation. Further, it wrote, an ESR spokesperson had referred TV3 to the Minister of Health’s office on several occasions for any comment.
 With respect to ESR's complaint about various statements in the item, CanWest wrote, "in the context of a shorter news report on the issue and the acknowledgement that the calculations had been inaccurate the [Standards Committee] does not consider the use of the adjectives to be unfair or inaccurate."
Referrals to the Authority
 Dissatisfied with CanWest's decision, MOH and ESR both referred their complaints to the Authority under section 8(1)(a) of the Broadcasting Act 1989. ESR did not elaborate on the arguments made in its formal complaint.
 Looking first at Standard 5 (accuracy), MOH said it was surprising that the broadcaster did not uphold its complaint under the accuracy standard after acknowledging that Dr Fiona Thomson-Carter was not the name of the former New Plymouth resident interviewed in the item.
 Referring to a comprehensive complaint it had made about the programme Let Us Spray, MOH said that Mr Leonard's critique suffered from its own misunderstandings, and had revealed only two minor errors that had no effect on the conclusions of the report. Accordingly, it contended, the statement that Let Us Spray had "exposed serious flaws" in the study was inaccurate.
 MOH said that the item had suggested that Mr Leonard had the expertise to interpret the significance of the errors he detected. As a forensic accountant, it wrote, he clearly did not. MOH argued that the broadcaster had not taken all reasonable steps under guideline 5c to ensure that he was a reliable source, in the sense that he had the expertise to evaluate whether the errors he detected had any real significance for the report’s conclusions. The limitations of his expertise were not presented to viewers, it noted.
 Referring to the reporter's statements "the way the Ministry of Health did its sums" and "the way the Health Ministry did the calculations in the report", MOH contended that these statements were inaccurate because ESR had done the calculations.
 While acknowledging that the item was only a news bulletin, MOH maintained that it had omitted information without which the item became misleading and inaccurate. For example, information about elevated dioxin levels was not "buried or forgotten" but was included in the interim report itself. Further, even at the higher level, the exposures found were not "dangerously high"; the levels fell far short of those associated with high risk, even in published scientific studies relating to occupational exposure.
 Turning to Standard 4 (balance), MOH submitted that the item had clearly dealt with a controversial issue of public importance - whether there were serious mistakes in the serum study that meant officials had buried evidence of dangerous dioxin exposure. It said that there was a strong need for alternative viewpoints during the period of current interest, but these had never been presented by the broadcaster. It said that the item only showed:
...the Minister and Dr Jacobs saying they will check out the Leonard report. They have not been given a real opportunity to provide views on the content of the report, which is the focus of the item. Instead, they are forced into implicitly accepting the validity of a report they have not seen, that contains conclusions that have only been vaguely outlined in the documentary...and whose conclusions have been misdescribed and exaggerated.
 MOH contended that the balance standard required participants to be given a reasonable understanding of what they would be commenting on, particularly where serious criticisms were involved. This could require time to assimilate material, it said, particularly if the issues were complex or technical. MOH noted that, although the broadcaster had Mr Leonard’s report for much longer, it was not supplied to MOH or ESR until the afternoon of the broadcast of the news item, leaving insufficient time to prepare a response.
 MOH listed a number of aspects of the programme which it maintained were unfair to the Ministry. None of these issues had been raised in the original complaint.
Broadcaster's Response to the Authority
 CanWest maintained that it was not inaccurate to state that Let Us Spray "exposed serious flaws" in the serum study. It said that the statement that "high levels of dioxin contamination were obscured by the way the Ministry did its sums" was acceptable shorthand for the more complex issues surrounding the study. It said that the author of the study had now accepted "that there are indeed issues with some of the key calculations".
 In the broadcaster's view, John Leonard had the appropriate qualifications to "interpret the significance of the errors he detected", as he had identified many of the issues which were now accepted.
 With respect to balance, CanWest contended that MOH was the "owner of the study" and had assumed responsibility for presenting and commenting on the study. The broadcaster strongly denied that it had been told to contact ESR before it received a letter from Dr Jacobs on 20 October 2006, three weeks after an interview with him and one working day before Let Us Spray went to air.
 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.
 The broadcast that is the subject of this complaint took place on 24 October 2006. The Authority notes that the subject matter of the item and this complaint are inextricably linked to the documentary Let Us Spray and complaints by MOH and ESR about that programme. Due to delays which have been fully outlined in Appendix 1 to Decision No. 2007-012 (relating to the complaints about Let Us Spray), the Authority was only able to begin considering this complaint in February 2009.
 The Authority considers that MOH and ESR's complaints raise the same issues under Standards 4, 5 and 6. Accordingly, it has dealt with both complaints together.
Standard 5 (accuracy)
Presentation of John Leonard’s findings
 In the Authority’s view, a reasonable viewer watching the 3 News item would have been left with the impression that John Leonard's criticisms of the ESR serum report were undisputed facts. The item said that the Let Us Spray programme which included Mr Leonard’s critique had "exposed serious flaws in the way health officials assessed dioxin contamination", that Mr Leonard had "said high levels of dioxin contamination from the factory were obscured by the way the Ministry of Health did its sums" and that he had identified "serious statistical errors".
 CanWest has not disputed that the item presented these matters as facts; rather, its argument has been that Mr Leonard's criticisms were valid and correct. However, having viewed the Let Us Spray documentary which was broadcast the evening before this news item, the Authority notes that Mr Leonard did not couch his criticisms in the absolute terms reported by 3 News. While he agreed that he was concerned "academically" about the study, at the conclusion of his comments he said:
My recommendation would be that somebody totally independent looks at this. The data is there, why not let somebody else look at it. If it’s accurate then fine, I’m wrong, but if it’s not accurate then we will find out the correct position. Doesn’t matter who’s wrong, the vital thing here is the correct position for the people of Paritutu.
 The Authority considers that the news item inaccurately presented Mr Leonard’s findings, because it portrayed his criticisms as being certain and undisputed when this was far from the case. Dr Fiona Thomson-Carter was interviewed by 3 News and, according to ESR, responded in detail to Mr Leonard’s report and criticisms of ESR. CanWest has not disputed this, but argued that her comments were not required in the item. The Authority disagrees. By omitting ESR’s rebuttal and presenting Mr Leonard’s findings as unqualified facts, the Authority finds that the item was inaccurate.
Incorrect attribution of Dr Thomson-Carter's name
 The Authority notes that Dr Fiona Thomson-Carter's name was incorrectly displayed in the base line caption when a former New Plymouth resident was outlining her family's health problems which she attributed to dioxin exposure. The reporter also verbally introduced the woman by Dr Thomson-Carter’s name. The Authority is at a loss to explain why, having acknowledged these errors, the broadcaster declined to uphold a breach of the accuracy standard.
 In the Authority's view, the incorrect attribution of Dr Thomson-Carter's name was inaccurate and should have been upheld as a breach of the accuracy standard by the broadcaster.
Reporter’s statements that "high levels of dioxin contamination... were obscured by the way the Ministry of Health did its sums" and "dangerously high levels of the toxin were buried or forgotten because of the way the Health Ministry did the calculations in its report"
 The Authority considers that the reasonable viewer would have assumed from these two statements that MOH had conducted the serum study and performed the calculations in the report. Because the study and calculations were undertaken by ESR, not MOH, it finds that the statements were inaccurate.
 The Authority acknowledges CanWest's contention that MOH had taken ownership of the study. However, the fact remains that the calculations and sums in the report were not performed by the Ministry. In order to be accurate, the item would have needed to explain that the report was commissioned by MOH but undertaken by ESR.
Bill of Rights
 Having found that three aspects of the item were inaccurate, the Authority considers that there are grounds upon which to uphold the complaint under the accuracy standard. It acknowledges that upholding the Standard 5 complaint would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In Decision No. 2008-040, the Authority determined that upholding a complaint under Standard 5 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.
 The Authority must now consider whether it would be a reasonable and proportionate limit on the broadcaster's freedom of expression to uphold a breach of the accuracy standard on this occasion. In Decision No. 2008-040 the Authority said:
...the accuracy standard exists to protect audiences from receiving misinformation and thereby being misled. Particularly where a broadcast involves a matter of public interest, this objective is very important. Audiences of news, current affairs and factual programmes have the right to receive information that is truthful and accurate.
 In the Authority's view, upholding these three aspects of the complaint would clearly promote the objective of Standard 5 as outlined above. Viewers have the right to expect that news items will be factual and correct. In this case, the broadcaster inaccurately presented Mr Leonard’s findings, erroneously attributed a person’s name, and incorrectly described MOH’s role in the serum study. In these circumstances, the Authority finds that upholding these aspects of the complaint places a justified and reasonable limit on the broadcaster’s freedom of expression. It therefore upholds the accuracy complaint.
Standard 6 (fairness)
 MOH's original complaint under Standard 6 was that ESR was treated unfairly by the broadcast. In its referral, it also argued that MOH was treated unfairly. Because the issue of unfairness to MOH was not raised in the original complaint considered by the broadcaster, the Authority has no jurisdiction to consider it. Accordingly, it confines its consideration of the fairness standard to whether ESR was treated fairly by CanWest.
 The fairness standard applies to people and organisations "taking part or referred to" in a broadcast. Given that ESR did not take part in the broadcast (although Dr Thomson-Carter was interviewed by 3 News), the first question for the Authority is whether ESR was "referred to" in the item. Although the item did not make it clear that ESR had conducted the study which was being criticised, the reporter did state that Mr Leonard’s report had been provided to "ESR officials" and Dr Jacobs commented that "ESR wants to look at it closely".
 While it would not have been apparent to every viewer that ESR had conducted the serum study, the Authority considers that ESR was "referred to" in the item by virtue of the above references and the fact that its report was being criticised. Accordingly, it finds that Standard 6 applied to ESR.
 In the Authority's view, for the same reasons outlined above in paragraphs  to , ESR was treated unfairly by the broadcast of the news item. Not only did the item present criticisms of its report - that it contained "serious statistical errors" and "serious flaws" - as statements of unqualified fact, but the broadcaster did not give ESR a reasonable opportunity to present its viewpoint. Despite having been told by ESR's representative that there were serious doubts about Mr Leonard's criticisms and his expertise, CanWest chose not to broadcast any part of the interview with Dr Thomson-Carter. The broadcaster has not disputed that she made these points, only arguing that her comment was not necessary in addition to Dr Jacobs’ statement that MOH and ESR would be closely reviewing Mr Leonard’s report.
 Given the damning nature of the criticisms in the item, the Authority is of the view that ESR should have been given a reasonable opportunity to provide a response. Because this did not occur, the Authority finds that ESR was treated unfairly.
 As discussed above in relation to the accuracy standard, the Authority acknowledges that upholding the fairness complaint would place a limit on the broadcaster's right to freedom of expression. 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.
 The Authority must now consider whether it would be a reasonable and proportionate limit on the broadcaster's freedom of expression to uphold a breach of the fairness standard on this occasion. It has found above that the item omitted a key perspective which led to ESR being unfairly portrayed.
 Upholding a breach of the fairness standard on this occasion would not prevent broadcasters from questioning the actions of government organisations. Rather, it would ensure the performance of such organisations is portrayed in a fair manner. In this respect, upholding this complaint clearly promotes the objective of Standard 6 as described above.
 In these circumstances, the Authority finds that upholding this part of the fairness complaint places a justified and reasonable limit on CanWest’s freedom of expression. It therefore upholds the complaint that ESR was treated unfairly in this respect.
Standard 4 (balance)
 In the Authority's view, the parts of the MOH and ESR complaints that referred to a lack of balance in the item have already been appropriately addressed in the above paragraphs dealing with Standards 5 and 6. Accordingly, the Authority subsumes the Standard 4 complaint into its consideration of accuracy and fairness.
For the above reasons the Authority upholds the complaints that the broadcast by CanWest TVWorks Ltd of an item on 3 News on 24 October 2006 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.
Submissions on Orders
 Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act. It invited submissions on orders from the parties.
 MOH and ESR both submitted that the Authority should order the broadcast of a statement containing a comprehensive summary of the Authority’s decision during 3 News. ESR also argued that the statement should be published in each of the four daily metropolitan newspapers in New Zealand.
 ESR sought legal costs and submitted invoices totalling $33,541.52 for this complaint and for its complaint about the programme Let Us Spray which was discussed in this broadcast (see Decision No. 2007-015). ESR’s lawyer estimated that one quarter of those legal fees were charged for work on the 3 News complaint. ESR argued that the broadcaster should be ordered to pay costs in excess of the amount (namely, one-third of costs reasonably incurred) identified in the BSA’s Advisory Opinion on Legal Costs as the amount likely to be awarded in the absence of special circumstances.
 The broadcaster submitted that the only order the Authority should make was for the broadcast of a statement at the end of 3 News at approximately 7pm.
Authority’s Decision on Orders
 The Authority has considered the submissions on orders from both parties. It is of the view that it is appropriate to order TVWorks to broadcast a statement during 3 News containing a comprehensive summary of the upheld aspects of its decision. The statement must be presented verbally and also visually on screen, within one month of the date of this decision.
 The Authority notes ESR’s submission that the broadcaster should publish a statement in several major newspapers. This order has previously been made only in exceptional circumstances. On this occasion, the Authority believes that the on-air statement and the publicity attracted by the publication of its decision will be sufficient.
 With respect to ESR's legal costs, the Authority refers to its Advisory Opinion which was issued in April 2006.1 The primary purpose of an award under section 16(1) of the Broadcasting Act 1989 is to partially recompense a successful complainant for costs justifiably incurred in bringing a complaint. The Authority notes that all aspects of ESR’s complaint were upheld, and it considers that it was not unreasonable for ESR to be concerned about protecting its professional reputation and to seek legal advice in pursuing this complaint.
 The Authority’s policy is that costs awards will usually be in the range of one-third of costs reasonably incurred. This amount may be adjusted upwards or downwards depending on the circumstances. In determining "reasonable costs" in this case, the Authority has had regard to the:
- the complexity of the factual background in this case in connection with the Let Us Spray programme
- the number of issues raised
- the long time span of the complaint.
 Having considered these factors, the Authority is of the view that $7500 would be a reasonable amount of legal costs for the 3 News complaint.2 It does not, however, consider that awarding one-third of this amount would be an adequate reflection of the circumstances of this case. The nature of the allegations in the broadcast would have affected ESR’s professional reputation, thereby affecting its commercial interests. In the Authority’s view, an appropriate award of legal costs in this case would be 40% of ESR’s reasonable costs, or $3,000.
 The Authority also finds that an order of costs to the Crown is warranted to mark the departure from broadcasting standards on this occasion. The Authority has found that there were three inaccuracies in the news item, and found that ESR was not offered a reasonable opportunity to respond. In these circumstances, it considers that the broadcaster should pay costs to the Crown in the amount of $2,500.
 The Authority has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 in making the above orders. The Authority considers the orders it has made on this occasion are consistent with the New Zealand Bill of Rights Act's requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.
The Authority makes the following orders pursuant to sections 13 and 16 of the Broadcasting Act 1989:
1. Pursuant to section 13(1)(a) of the Act, the Authority orders TVWorks Ltd to broadcast a statement approved by the Authority. That statement shall:
- be broadcast within one month of the date of this decision
- be presented both verbally and visually on screen
- be broadcast during 3 News on a Tuesday evening, on a date to be approved by the Authority
- contain a comprehensive summary of the upheld aspects of the Authority's decision.
The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.
2. Pursuant to section 16(1) of the Act, the Authority orders TVWorks Ltd to pay to ESR costs in the amount of $3,000, within one month of the date of this decision.
3. Pursuant to section 16(4) of the Act, the Authority orders TVWorks Ltd to pay to the Crown costs in the amount of $2,500, within one month of the date of this decision.
The orders for costs shall be enforceable in the Wellington District Court.
Signed for and on behalf of the Authority
5 August 2009
The following correspondence was received and considered by the Authority when it determined this complaint:
- MOH’s formal complaint – 21 November 2006
- CanWest’s decision on the formal complaint – 22 December 2006
- MOH’s referral to the Authority – 2 February 2007
- Further submission from MOH – 2 March 2007
- CanWest’s response to the Authority – 7 August 2007
- MOH’s submissions on orders – 9 July 2009
- CanWest’s submissions on orders – 22 July 2009
- ESR’s formal complaint – 20 November 2006
- CanWest’s decision on the formal complaint – 22 December 2006
- ESR's referral to the Authority – 26 February 2007
- CanWest's response to the Authority – 7 August 2007
- ESR's submissions on orders – 14 July 2009
- CanWest's submissions on orders – 22 July 2009
2 This figure is based on the Authority’s assessment that a combined total of $30,000 (including GST) in legal costs was reasonable for the Let Us Spray and 3 News complaints combined.