BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Nine to Noon – listeners’ comments broadcast about Hormone Replacement Therapy – some suggested soy products as an alternative to HRT – unbalanced

Findings
Principle 4 – observation in passing about range of views made known to the broadcaster did not support the use of soy – no uphold

Comment
Complainant need not have heard/viewed programme complained about before making complaint – complaint must comply with s.6 of the Broadcasting Act – broadcaster must have process in place to deal with formal complaints

This headnote does not form part of the decision.

Summary

[1] Hormone Replacement Therapy (HRT) was one of the matters discussed on Nine to Noon, presented by Linda Clark and broadcast on National Radio between 9.00am and noon on 17 July 2002. After the discussion, emails and faxes from listeners were alluded to, some of which recommended soy products as a substitute for HRT in the alleviation of menopausal symptoms.

[2] Richard James complained to Radio New Zealand Ltd, the broadcaster, that the programme might have been unbalanced. He contended that a health food company (Sanitarium) had a history of arranging for the broadcast of incorrect information about soy products.

[3] In response, RNZ said listeners’ comments were broadcast as expressions of opinion, not authoritative statements of fact, and as the topic had not involved a controversial issue, broadcasting standards had not been at issue.

[4] Dissatisfied with RNZ’s response, Mr James referred his complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaint.

Decision

[5] The members of the Authority have listened to a tape of the aspect of the programme complained about, and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[6] Hormone Replacement Therapy (HRT) was one of the matters discussed on Nine to Noon, presented by Linda Clark and broadcast on National Radio by RNZ between 9.00am and noon on 17 July 2002. After the discussion, emails and faxes from listeners were alluded to, some of which recommended soy products as a substitute for HRT in the alleviation of menopausal symptoms.

The Complaint

[7] In a letter to RNZ, Richard James asked whether the messages were instigated by vendors of soy products as that group "was aware of the untruth of claiming such benefits for soy products". He enclosed three medical research articles about soy which, he said, demonstrated that "these estrogens do not work for menopause, and are mostly toxic".

[8] As he received no reply, he wrote again stating that his earlier letter was a formal complaint on the basis that the broadcast lacked balance. Equal time, he wrote, should have been given to "coverage of the truth".

The Standards

[9] RNZ assessed the complaint under Principle 4 of the Radio Code of Broadcasting Practice. Principle 4 and the relevant Guidelines read:

Principle 4

In programmes and their presentation, broadcasters are required 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.

Guidelines

4a  Broadcasters will respect the rights of individuals to express their own opinions.

4b  Broadcasters may have regard, when ensuring that programmes comply with Principle 4, to the following matters:

(i) An appropriate introduction to the programme; and

(ii) Any reasonable on-air opportunity for listeners to ask questions or present rebuttal within the period of current interest. Broadcasters may have regard to the views expressed by other broadcasters or in the media which listeners could reasonably be expected to be aware of.

The Broadcaster’s Response to the Complainant

[10] RNZ accepted that listeners’ emails, faxes and letters about HRT had been read out on-air, and some might have suggested alternatives, such as the use of soy products. However, as a time had not been nominated and as a detailed log had not been retained, RNZ:

… does not have the resources and the Radio Code of Broadcasting Practice does not contemplate the broadcaster having to review three hours of programming to determine the precise point at which the item you complain of was broadcast.

[11] Nevertheless, RNZ continued, even if the item had been clearly identified, Principle 4 had not been breached. RNZ reached that conclusion because the topic was not a "controversial issue of public importance", as required by the standard, and furthermore, even if it was, the period of "current interest" was ongoing.

[12] Nonetheless, RNZ stated, even if some of the comments broadcast were misguided or inaccurate, it was not the role of Nine to Noon to determine the veracity of listeners’ comments. Declining to uphold the complaint, RNZ wrote:

Listeners have become accustomed to hearing various points of view in response to something which has been broadcast and are able to discern the source of what has been said in that it is usually less authoritative than say the words of a spokesperson for a particular organisation involved in the issue at hand.

The Referral to the Broadcasting Standards Authority

[13] When he referred the complaint to the Authority, Mr James enclosed some material he had sent to RNZ. He said that he wished RNZ would let its listeners know that there was an alternative viewpoint to the use of soy products.

[14] In the letter to RNZ, Mr James advised that his informant was not sure of the exact time of the broadcast. Nevertheless, she had heard the comments.

[15] In support of his contention that the issue was controversial, Mr James enclosed a recent article from the New York Daily News which indicated that the matter was a topic of controversy. Mr James then explained what he called the "underlying reason" for his complaint. Sanitarium (a manufacturer of health foods), he argued, had a history of using anonymous callers to broadcast promotions for its products, and had been prosecuted for it in 1998. In response, he said, Sanitarium had set up the "International Soy Advisory Board". He continued:

Whether the callers to Nine to Noon were Sanitarium helpers I cannot say, but given the past conduct of Sanitarium, one must be suspicious.

[16] Mr James urged RNZ to broadcast material along the lines of the New York Daily News article, which had consulted Dr Mike Fitzpatrick in Takapuna, "an internationally recognised expert in soy estrogens".

The Broadcaster’s Response to the Authority

[17] As Mr James had not identified the portion of the programme complained about RNZ did not initially provide a tape of the programme. It wrote:

Radio New Zealand is of the view that it is not our role to troll (sic) three hours of programming to identify a snippet which Mr James complained of which, as we have now found out, he complained of based on hearsay rather than on the actual hearing of the item himself.

[18] In regard to that matter, RNZ added:

He was in fact relying on hearsay which may well explain his inability to identify the correct date and time of the broadcast which is a requirement laid down by the Authority in its guidelines to complainants.

[19] RNZ maintained that it did not accept, as Mr James claimed, that it had conceded that the matter was a controversial issue.

[20] Turning to Mr James’ reference to Sanitarium’s historical practices, RNZ said that listeners’ comments which were aired, were broadcast as comments – not authoritative statements. They were broadcast "to add colour", it said, and concluded:

We repeat that the complainant appears to misunderstand the provisions of Principle 4 of the Radio Code of Broadcasting Practice in that as a broadcaster we are not obliged to broadcast every point of view every time an issue is aired.

The Complainant’s Final Comment

[21] Maintaining that it was not necessary under the Broadcasting Act 1989 to have heard the programme before making a complaint, Mr James named the person who had heard the broadcast. Moreover, he wrote, his wife had heard the broadcast and she had immediately faxed a response to RNZ. Nonetheless, he added in regard as to whether he had heard the item, "What does it matter?" and reiterated his complaint that the broadcast breached broadcasting standards. He enclosed some findings about phytoestrogens from the UK Food Standards Agency.

Further Correspondence

[22] Persisting with its argument that it was not a broadcaster’s responsibility to research a three-hour programme for comments which might have been made, RNZ said that now the complainant had identified the comments complained about it had located the relevant aspect of the programme. RNZ contended a complaint based on hearsay often turned out to be inaccurate, trivialised the process, and amounted to a "vexatious" waste of time. RNZ continued:

The present appeal by the complainant is a case in point. It transpires that there were no faxes or emails broadcast and there were no listeners’ comments repeated let alone those of employees or representatives of Sanitarium as had been alleged by the complainant. What was broadcast were two references by the programme host that:

"… I have been inundated this week because as I mentioned at the beginning of this we’ve been talking about this issue and sort of bits and pieces for the last few days and every time we mention it we get an enormous amount of response but I’ve been inundated with details on the benefits of taking soy for instance … ."

at which point in the programme, one of the show’s participants immediately went on to debunk the claimed benefits of complementary therapies.

[23] RNZ considered that the complaint could have been dealt with quickly if the comments and time of their broadcast had been correctly identified. Failure to do so, it stated, had caused "considerable inconvenience" and, RNZ added:

RNZ would appreciate a determination by the Authority as to what extent a broadcaster is obliged to go to in identifying an item in question when a complainant cannot correctly nominate the time of a broadcast. This is particularly relevant when a complainant is relying on hearsay.

[24] In response, Mr James pointed out that there was nothing in the Act that required "an item to be identified to the last second". He recalled the efforts that he had made at the time to obtain a transcript of the item from Newztel. He maintained that the issue in debate had been now settled by the Food Standards Agency in the UK. Its report on Phytoestrogens, Mr James wrote, concluded that the weight of evidence did not support the proposition "that supplementation of the diet with soy or isoflavones alleviates menopausal symptoms". Citing a comment from Mr Glen Wiggs of the Advertising Standards Authority with which he concurred, Mr James said that with therapeutic claims, the public needed to be given information with truth and clarity.

The Authority’s Determination

[25] Dealing first with the complaint, the Authority considers that the broadcast did not breach the balance requirement contained in both s.4(1)(d) of the Broadcasting Act, and Principle 4 of the Radio Code. The Authority is aware that some recently released research findings in regard to HRT have received considerable media coverage. It is probable that these findings were discussed and debated on Nine to Noon. The Authority is not surprised that some who have participated in the debate have argued that there are benefits in taking soy. It is also not surprised that there are some who argue that there are no benefits in soy and, indeed, it may be potentially dangerous.

[26] The presenter of Nine to Noon reported that the HRT debate had evoked an enormous response from listeners, adding that some of whom had argued that there were benefits in taking soy. The comment was made in reporting the extent of the response. The comment did not suggest that the benefits of soy was the only response, or that the presenter in anyway supported the arguments advanced by this group of listeners. It was merely an observation which did not threaten the requirement for balance. Accordingly, the Authority does not uphold the complaint.

[27] The Authority does not agree with RNZ that the complaint is vexatious or trivialises the process. As Mr James observes, there is no requirement in the Broadcasting Act for a complainant to have heard the broadcast complained about. In this instance, he complained on behalf of his wife and a companion.

[27] Section 6(1)(a) of the Act reads:

6. Formal complaints about programmes – (1) Subject to Subsection (2) of this section, it is the duty of every broadcaster –

(a) To receive and consider formal complaints about any programme broadcast by it where the complaint constitutes, in respect of that programme, an allegation that the broadcaster has failed to comply with section 4 of this Act;

[28] Mr James gave the name of the programme complained about, the date of the broadcast, the aspect of the programme which he objected to, and the broadcasting standard which he considered had been breached.

[29] Section 5(a) of the Act requires:

(a) Broadcasters have a responsibility to deal with complaints relating to broadcasts and must establish a proper procedure to deal with them.

[30] In view of its conclusion that Mr James’ complaint complied with the Act, and in view of the responsibility imposed on the broadcaster by the legislation to establish a complaints handling process, the Authority finds that RNZ was obliged to identify the specific aspect of the programme complained about and to respond accordingly.

[31] RNZ believes that this complaint has taken a long time to resolve. The Authority notes that had RNZ responded to Mr James’ initial letter of 18 July, the matter could well have been settled promptly. Because RNZ did not respond, Mr James’ second letter of 5 August was specifically described as a formal complaint and, as a consequence, a number of time-consuming steps became necessary to resolve the matter.

[32] The Authority observes that to find a breach of broadcasting standards on this occasion would be to interpret the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

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

Signed for and on behalf of the Authority

Peter Cartwright
Chair
28 November 2002

Appendix

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

1. Richard F James’ Letter to Radio New Zealand Ltd – 18 July 2002
2. Mr James’ Formal Complaint to RNZ – 5 August 2002
3. RNZ’s Response to the Formal Complaint – 19 August 2002
4. Mr James’ Response to RNZ – 1 September 2002
5. Mr James’ Referral to the Broadcasting Standards Authority – 3 September 2002
6. RNZ’s Response to the Authority – 12 October 2002
7. Mr James’ Final Comment – 15 October 2002
8. RNZ’s Response to the Authority – 24 October 2002
9. Mr James’ Second Final Comment – 2 November 2002