BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has found a statement on Heather du Plessis-Allan Drive breached the accuracy standard. During the programme, the host discussed advice to Aucklanders to stay away from regions in New Zealand over the summer due to the vulnerability of communities with lower vaccination rates. The Authority found it was misleading to only mention the vaccination rate of the Bay of Plenty region when talking specifically about Ōpōtiki, which had a lower vaccination rate than the region as a whole. Where the host was contradicting advice from local authorities about the risks associated with visiting certain areas over the summer, it was important to provide listeners with the correct information. The Authority noted the host could have contextualised the comments more clearly, and the vaccination rates for Ōpōtiki were available on the same government site as the DHB rates.

Upheld: Accuracy

Not Upheld: Balance

No Order

The broadcast

[1]  On 10 December 2021, on her show, Heather du Plessis-Allan provided her views on a New Zealand Herald article published that day¹ and encouraged Aucklanders to ignore the advice to stay away from the regions. She concluded by saying:

I can sort of make sense of it when an iwi is the one that's asking the Aucklanders to stay away because that's the kind of thing that they do. But what on earth is a territorial authority like Ōpōtiki District Council thinking by supporting that call? Businesses ought to be really angry in the Ōpōtiki region, in the Bay of Plenty region ought to be very, very angry with Ōpōtiki District Council for this, for trying to turn away Aucklanders and the money that would bring in. That is just crazy stuff from a district council. These regions, by the way, are in some cases massively overplaying how vulnerable they are. Ōpōtiki, for example, right, falls under the Bay of Plenty DHB. Do you know what the first dose rate in the Bay of Plenty DHB is? It's 92 per cent, so I'm not sure that we should be talking about vulnerable communities. 92 per cent. So Aucklanders, please go wherever you want to this summer…

The complaint

[2]  Damian Jones complained the item breached the accuracy and balance standards as it was misleading to use the Bay of Plenty DHB vaccination rate when talking about Ōpōtiki:

Heather encouraged Aucklanders to travel anywhere in the country they liked. She misled people by claiming that Ōpōtiki isn’t a vulnerable community because Bay of Plenty is 92% vaccinated. Ōpōtiki is only 66% percent fully vaccinated. Although she didn't directly lie, she did deliberately mislead.

[3]  The complainant also commented:

I believe the ordinary person would listen to the percentage ‘92’ that was made clear and associate it with [the] place ‘Ōpōtiki’ that was in discussion. The stats were easily available & only weren’t used because they didn’t suit [Heather’s] narrative. I don’t have issue with [Heather’s] opinion, only with the use of misinformation to express her opinion.

The broadcaster’s response

[4]  NZME Radio Ltd (NZME) did not uphold the complaint for the following reasons:

Accuracy

• The accuracy standard does not apply to talkback radio unless the host makes an unqualified statement of fact.²
• The statement that the first dose rate in the Bay of Plenty region was 92% was ‘not materially inaccurate or misleading’. ‘The first dose rate in the Bay of Plenty region at the date of the broadcast was as stated and the Ōpōtiki district falls within the Bay of Plenty region’.
• ‘When the host stated, “So I’m not sure that we should be talking about vulnerable communities”, this falls into the category of analysis, comment or opinion, to which this standard does not apply’.
• ‘A reasonable listener would not have been misled by the host’s comments and would have understood that the first dose rates within the various districts within the Bay of Plenty region would differ and that the 92% was the average across the region as a whole.’

Balance

• ‘The comments complained of were made by the host during her Drive talkback show’ and the standard only applies to news and current affairs programmes.
• If the standard did apply, ‘we do not believe that the segment can be viewed as lacking in balance due to the fact that it is an established principle of this standard that programmes can portray an issue from a particular perspective as long as this is clearly signalled in the programme. We consider that it would have been clear to listeners that it was the perspective of the host that was being presented here’.

The relevant standard

[5]  The key issue raised in the complaint is of the item being misleading by omission. We consider the matter most appropriately addressed under the accuracy standard and therefore do not address the balance standard in this case.

[6]  The purpose of the accuracy standard³ is to protect the public from being significantly misinformed.⁴ 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.

Our analysis

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

[8]  The right to freedom of expression is an important right in a democracy and it is our starting point when considering complaints. We weigh the right to freedom of expression against the harm that may have potentially been caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified, in light of actual or potential harm caused.

[9]  At the time of the broadcast there were ongoing discussions in the media about the lifting of lockdown restrictions for Aucklanders in time for Christmas and summer holiday travel.⁵ We recognise there is value and public interest in scrutinising, and offering critical commentary on, the Government’s actions with respect to combatting COVID-19, including the lifting of these restrictions. We have also previously acknowledged that hosts such as du Plessis-Allan are well known to offer strong or provocative opinions, and there is value in this approach for the purpose of generating discussion and public discourse. The free and frank expression of opinions, particularly on a topic of high public interest, is protected by the right to free speech, so long as standards are maintained.

[10]  However, when we considered the potential harm caused by the broadcast, we concluded that upholding the complaint under the accuracy standard would place a reasonable and justified limit on freedom of expression. The risks relating to misleading the public on such a matter are significant as it could have impacts for the health of relevant communities. We expand on our reasons below.

Accuracy

[11]  The accuracy standard only applies to statements of fact, and does not apply to statements which are analysis, comment or opinion.⁶ While much of what du Plessis-Allan was saying was opinion and analysis (for example ‘Businesses ought to be really angry…’ and ‘I’m not sure that we should be talking about vulnerable communities’) there were statements of fact (‘Ōpōtiki, for example, right, falls under the Bay of Plenty DHB. Do you know what the first dose rate in the Bay of Plenty DHB is? It's 92 per cent’).

[12]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate on a material point of fact, or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.⁷

[13]  In this case, we have focused our deliberations on the requirement to ensure the programme was not ‘misleading’. The key question in our view was whether using the vaccination rate from the Bay of Plenty region when referring to Ōpōtiki specifically, had the potential to mislead the audience. Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts’.⁸ Programmes may be misleading by omission.⁹

[14]  The Bay of Plenty DHB’s first dose rate at the time of broadcast was 92%,¹⁰ however, the Ōpōtiki statistical area (which falls within the Bay of Plenty DHB) was only at 81%.¹¹ Ōpōtiki’s fully vaccinated rate (two doses) at the time was 66% while the Bay of Plenty DHB was 84%.¹²

[15]  In the context, we find it was materially misleading to refer only to the Bay of Plenty’s first dose vaccination rate when talking specifically about Ōpōtiki and making comments and analysis about the vulnerability of Ōpōtiki. The information about vaccination rates was critical public health information at the time, when New Zealand was aiming for 90% fully vaccinated (two doses) across the country. Where the host was contradicting advice from local authorities about the risks associated with visiting certain areas over the summer, it was important to provide listeners with the correct information.

[16]  Du Plessis-Allan could have contextualised her comments more clearly, for example, by making it clear there were other areas in the Bay of Plenty where vaccination rates were higher, or by referring specifically to the vaccination rate in Ōpōtiki.

[17]  The reference to the correct statistic for the Bay of Plenty but omission of the more specific statistic for Ōpōtiki indicates a selective approach to sources, when the ‘small area’ data for vaccine rates was available on the same government site as the DHB vaccination rates. In the circumstances, we find reasonable efforts to ensure accuracy were not made and uphold the complaint under the accuracy standard.

For the above reasons, the Authority upholds the complaint that the broadcast by NZME Radio Ltd of Heather du Plessis-Allan Drive on 10 December 2021 breached Standard 9 (Accuracy) of the Radio Code of Broadcasting Practice.

[18]  Having upheld part of the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We have concluded no order is warranted in this case. This is on the basis that publication of our decision is sufficient to publicly notify the breach of the accuracy standard and censure the broadcaster; and to reiterate¹³ to NZME the importance of data literacy and of ensuring statistics are not used to bolster opinions in a way that risks misleading audiences on matters of public importance.

Signed for and on behalf of the Authority

Susie Staley
Chair
26 April 2022    

Appendix

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

1  Damian Jones’ complaint to NZME – 10 December 2021

2  NZME’s decision on the complaint – 22 February 2022

3  Jones’ referral to the BSA – 22 February 2022

4  NZME’s comments on the referral – 9 March 2022

5  Jones’ final comments – 14 March 2022

6  NZME’s confirmation of no further comments – 23 March 2022

7  Ministry of Health’s confirmation of vaccination rates for Ōpōtiki statistical area as at 10 December 2021 – 25 March 2022

¹ Emma Russell “Covid 19 Delta outbreak: Auckland holidaymakers warned to stay away from regions” New Zealand Herald (online ed, 10 December 2021)
² Saunders and NZME Radio Ltd, Decision No. 2016-089 at [20]
³ Standard 9 of the Radio Code of Broadcasting Practice
⁴ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁵ See for example: Thomas Manch “Covid-19: Restrictions must lift by Christmas for weary Auckland: Judith Collins” Stuff (online ed, 6 October 2021); Tess McLure “As New Zealand lifts Covid lockdowns, some small towns ask tourists to stay away” The Guardian (online ed, 24 November 2021); Robin Martin “Covid-19: Expert implores Aucklanders to 'staycation' to avoid potential spike in infections” RNZ (online ed, 4 December 2021)
⁶ Guideline 9a
⁷ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁸ Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
⁹ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
¹⁰ Wayback Machine “COVID-19 vaccination rates around New Zealand” Unite Against COVID-19 (9 December 2021) (see “Vaccinations to 90% by DHB”) <www.web.archive.org> regarding <www.covid19.govt.nz>
¹¹ GitHub “nz-covid-data” moh-covid-data (8 December 2021) (see “ vaccine data / 2012-12-08 / sa2_all_ethnicity” – Ōpōtiki, 2431 partially vaccinated out of 3,005 population) <www.github.com>, accessed from Ministry of Health “COVID-19 vaccine data” (see “Vaccine uptake” – “Vaccine uptake data on GitHub”) www.health.govt.nz, see also Appendix (7)
¹² As above
¹³ See Burne-Field and NZME Radio Ltd, Decision No. 2020-040