Malpas & Oliver and Television New Zealand Ltd - 2015-102 (12 May 2016)
- Peter Radich (Chair)
- Paula Rose
- Te Raumawhitu Kupenga
- Phillipa Malpas, Pam Oliver
BroadcasterTelevision New Zealand Ltd
Leigh Pearson declared a conflict of interest and did not participate in the determination of this complaint.
[This summary does not form part of the decision.]
An item on ONE News reported on concerns around a government-funded survey of health professionals and their views on voluntary euthanasia. It said that the survey was run by researchers who support assisted dying, and that it was alleged that the research was biased and flawed. The Authority did not uphold a complaint alleging that the item was unfair to the researchers involved and to the university through which the research was run, as well as inaccurate and unbalanced. Comment was sought from the university and the researchers, whose position was presented in the university’s response and fairly reported in the item. The statements alleged to be inaccurate either had a reasonable basis, were clearly statements of opinion or were matters of editorial discretion.
Not Upheld: Fairness, Accuracy, Controversial Issues
 An item on ONE News reported on concerns around a government-funded survey of health professionals and their views on voluntary euthanasia. It said that the survey was run by researchers who support assisted dying, Phillipa Malpas and Pam Oliver, and that it was alleged that the research was biased and flawed.
 Dr Malpas and Dr Oliver complained that the report caused damage to their personal and professional reputations, they had not been directly invited to comment and the report was misleading in a number of respects and unbalanced.
 The issue is whether the broadcast breached the fairness, accuracy and controversial issues standards of the Free-to-Air Television Code of Broadcasting Practice.
 The item was broadcast on 19 October 2015 on TV ONE. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.
 The item was introduced by the newsreader saying, ‘The Government’s under fire for funding a study on euthanasia that’s being run by researchers who support assisted dying. Opponents are angry, claiming the study is biased and flawed’.
 The reporter discussed that the research was being led by two Auckland researchers, who ‘told participants “We are independent”’. An image was shown with these words highlighted. Photos of both Dr Malpas and Dr Oliver were shown, with their full names in text boxes beneath the photos. In a voiceover, the reporter said, ‘But they didn’t reveal they are members of the Voluntary Euthanasia Society [VES], which is pushing for a law change to let doctors help patients die. The lead researcher, Phillipa Malpas, supports euthanasia’. An excerpt of an earlier interview with Dr Malpas was shown, in which she said, ‘We’re actually not seeing the kind of abuses that people worried about. We’re not seeing a slippery slope’.
 The item went on to interview the head of the Care Alliance, an organisation that opposes voluntary euthanasia, in which he said that researchers had ‘misled the participants’. He questioned the Government’s funding of the survey, and said, ‘Did they know what they were getting into? If so, what the hell were they thinking?’
 The reporter went on to explain that, although the survey was ‘for doctors and nurses only’, ONE News had ‘accessed it online, and found it easy to submit fake responses. What’s more, the researchers cited Wikipedia as a source’. The head of the Care Alliance was shown saying, ‘I was appalled. This is shabby research’.
 A palliative care doctor was then interviewed, and the reporter said the doctor ‘believes the findings will be used as a political tool’. The doctor said, ‘It will make the public feel that doctors and nurses are agreeable to the assisted dying changes, and I don’t think that’s true because the survey itself is fatally flawed’.
 The reporter explained, ‘The purpose of this study is to shape any future laws around euthanasia’. He went on to say, ‘Auckland University says the researchers are independent and their views do not influence their work, and their survey process was approved by an ethics committee’.
 This story carried public interest, as it concerned allegations of bias and flaws in government-funded research. The high public interest, the significance of the issues and the right to freedom of expression – both the broadcaster's right to impart information and the audience's right to receive it – must be weighed against the level of harm alleged to have been caused to the complainants by the broadcast. If we are to uphold the complaint we must impose only such limit on the right to freedom of expression as is reasonable and we must be able to demonstrate that our limitation is justified.
Were Dr Malpas, Dr Oliver and/or the University of Auckland treated unfairly?
 The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. 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.1
 In determining whether the item was unfair to Dr Malpas and Dr Oliver and the University of Auckland, the first issue is whether they were portrayed in an unfavourable light. At this stage, our concern is not whether this was unfair or unwarranted, but simply whether a negative impression was created. Dr Malpas and Dr Oliver argued that TVNZ ‘naming both of us and showing images of us... caused damage to our personal and professional reputations’. TVNZ argued that the broadcast focused on Dr Malpas and Dr Oliver in their ‘public and professional capacity’ and that ‘Given that the story highlighted concerns about the personal associations and memberships of the researchers, it was necessary and appropriate to identify them in the item’.
 We accept that Dr Malpas’ and Dr Oliver’s professional integrity and competence was called into question, and the item featured comment from individuals who were highly critical of the researchers. By association, we think the item also created a negative impression of the University of Auckland, as it suggested that the University had endorsed and defended the researchers’ work.
 It is usually the case that somebody about whom something adverse is to be said should be given a fair and reasonable opportunity to comment. The gravity of the unfairness if this opportunity is not given will vary according to the particular circumstances of the case.2 Dr Malpas and Dr Oliver argued that ‘[t]he reporter made no attempt to contact either of the researchers directly, nor invited either of us to be interviewed for the story’. They also said that the reporter only allowed the University of Auckland five hours to provide a formal response, which they considered to be insufficient.
 Emails provided to us by Dr Malpas and Dr Oliver show that the reporter emailed the Communications and Media Relations Advisor for the Faculty of Medical and Health Sciences at the University of Auckland at 8.42am on 19 October (the day of the broadcast), as follows:
I am working on a One News story about an Auckland University research project on assisted dying, led by Phillipa Malpas and Pam Oliver.
In their application to the ethics committee, they cite the government’s Health Research Council as the funding provider.
They told participants in the study: ‘We are independent’. The participants were NOT told that the two researchers are in fact members of the Voluntary Euthanasia Society, which is pushing for a law change to legalise assisted dying. Dr Malpas has publicly advocated for euthanasia.
Additionally, One News has discovered that the online study is easy to manipulate. We have been able to submit fake responses to the survey, which is freely available on the Internet.
There are serious questions here about a piece of research which claims to be ‘independent’ but is actually being run by pro-euthanasia advocates – who have not declared this to participants.
The survey process appears shoddy, and relies on material from Wikipedia.
Can I please have a response from the University and its researchers by 2pm.
• Why was the conflict of interest not declared?
• What action will be taken by the University in regards to the security/accuracy of the research?
 TVNZ argued that as the researchers were working on a University of Auckland study ‘[i]t was entirely appropriate for ONE News to contact the communications manager for the Medical School at the university for a response on the issues raised, rather than attempt to contact [Dr Malpas and Dr Oliver] directly’. It furthermore pointed out that the University did not seem concerned about the timeframe for giving a response because it did not request an extension.
 The complainants are concerned with two aspects of the opportunity to comment: first, that they were not contacted directly; and second that the timeframe allowed for a response was inadequate. On the first point, we note that the reporter’s email, which was sent to an appropriate person at the University (Communications and Media Relations Advisor) did say that he was requesting a response from the University and the researchers. We think in the circumstances this was sufficient to alert the University to the fact ONE News wanted to hear from the researchers as well, without having to contact them directly. If the University did not consult the complainants before providing a response, then we think that would be an internal issue rather than any failure by the broadcaster to meet the requirements of the standard. Having said that, the response that was ultimately provided by the University did appear to include comment from Dr Malpas and present the researchers’ general positions (discussed further below from paragraph ).
 We are also satisfied that the deadline given to the University and the researchers for comment was reasonable, and we note that neither the University nor the researchers requested an extension to this timeframe. The reporter’s email to the University contained a comprehensive summary of the proposed item including its angle, and articulated what were the key concerns about the research. This enabled the University and the researchers to consider specific allegations and provide a meaningful response, and we think five hours was sufficient time to do so.
 The next question, then, is whether the position of the University and the researchers was fairly presented in the programme. TVNZ argued that ‘The researchers’ position... on independence and that their views did not influence their work [was] included in the item’.
 A media spokesperson for the University responded to the reporter’s email at 2.25pm on the day of the broadcast as follows:
Dr Malpas has stated in previous research on this topic that she is a member of the NZ Voluntary Euthanasia Society, including the ethics applications for this study. She has also disclosed her membership to journalists who have interviewed her. She maintains her professional independence and that of the research, separately from her personal beliefs.
The participants to this study were told that the research was not funded by any organisation with a particular point of view. Her membership of the NZVES was not made public to participants as this is independent research carried out by professional scientists whose personal beliefs are not part of the research. The research seeks quantitative and qualitative opinions from participants via the Council of Medical Colleges and other professional medical and nursing organisations, so that the researchers are distanced from the participants. They were in no position to influence participants and did not seek to do so.
The research process was approved by the University of Auckland Human Ethics Committee and the questionnaire was piloted with medical and nursing professionals before and after the approval.
The survey is not ‘freely available’ on internet. The researchers worked through the professional medical and nursing colleges and associations to disseminate the survey invitation specifically to their members – an approach that is common practice with many researchers. Dissemination is undertaken in this way under the assumption that people receiving the invitation will behave professionally and not pass that invitation to others outside of the profession.
Of the more than 700 doctors and nurses who have so far responded to the survey, only one has registered a concern (specifically that the person thought the questions on respondents’ religion were unnecessary). The integrity of the responses to this survey has now been potentially compromised by the journalist and those who gave him the information about the survey.
 This statement was presented towards the end of the item by the reporter, as follows:
Auckland University says the researchers are independent and their views do not influence their work, and their survey process was approved by an ethics committee.
 It may have been preferable for more extensive comment from the University to have been included given the potential implications for the researchers’ professional reputations – for example, more comment about Dr Malpas’ position that she maintained her professional independence and kept her research separate from her personal beliefs. However, we think the reporter’s summary did convey the essence of the researchers’ position as put forward in the statement, as well as making the point that the survey had been approved by an ethics committee. On balance we are satisfied that the position of the University and the researchers in defence of the study was presented sufficiently in the interests of fairness, especially given this was a relatively short news item.
 Taking into account the public interest in the item, we find overall that neither the researchers nor the University were treated unfairly, and we do not uphold the complaint under Standard 6.
Was the broadcast inaccurate or misleading?
 The accuracy standard (Standard 5) states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact, and does not mislead. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.3
 Dr Malpas and Dr Oliver argued that a number of statements in the item were inaccurate or misleading.
Reporting the statement ‘we are independent’ without qualification
 Dr Malpas and Dr Oliver argued that this statement, which was made in the introduction to their survey, had been followed by the qualification ‘(that is, not funded by any organisations with a particular point of view, such as the New Zealand Voluntary Euthanasia Society...)’. They considered that TVNZ should have reported this qualification, and said, ‘the university’s Ethics Committee did not require [the researchers] to state [their] membership of VES’.
 TVNZ argued it was ‘reasonable... to report the wording of the survey statement in this way as a readily available implication of the full statement is that the researchers were “independent” – not just in terms of funding, but of the organisations that have lobbied on this issue’. It also said that the way the qualification was worded suggested that ‘the researchers had no affiliations to organisations that were advocating a pro-euthanasia position’, which was not the case.
 We agree with TVNZ that reporting the statement ‘We are independent’ without further qualification was not misleading. The common understanding of ‘independence’, we think, is not limited to independence in terms of funding, and, as the report flagged, members of the ethics committee that approved the study had questions about this as well (although ultimately did not consider that declaration was necessary).
Reporting that Dr Malpas and Dr Oliver were members of VES without explanation
 Dr Malpas and Dr Oliver argued that the report did not point out that it is ‘fully accepted that researchers may have personal beliefs relevant to their research as long as protections are in place to protect against bias in the research’. TVNZ argued that it was not required to explain this, and pointed out that it was a perceived, rather than an actual conflict of interest, that was the concern.
 We agree with TVNZ that the item legitimately highlighted the issue of a perceived bias, rather than demonstrated any actual bias. We also agree it was not necessary for TVNZ to canvass that researchers often hold personal beliefs that do not affect their research, particularly in an item that was just over two minutes in length. As we have said the item sufficiently reported the researchers’ position (via the University) that they were independent and their views do not affect their work (see paragraph ). We therefore do not think this statement was inaccurate or misleading.
‘The lead researcher, Phillipa Malpas, supports euthanasia’. (Reporter)
 Dr Malpas and Dr Oliver argued that there is no evidence that Dr Malpas ‘personally’ supports euthanasia, as she ‘merely reports evidence-based findings from published international research’. TVNZ argued, ‘It is clear that Ms Malpas has done research in the area of assisted dying, but it is also clear that, from her research, she has come to support it’, so the statement was not inaccurate.
 The item did not say Dr Malpas ‘personally’ supports euthanasia. Nevertheless we think the statement that was included was one which TVNZ had a reasonable basis to make. Dr Malpas has referred several times to her ‘personal beliefs’ when it comes to euthanasia, including in her correspondence on this complaint – see paragraphs  and , for example. It was also reasonable for TVNZ to deduce from the information available to it (outlined in its decision on the complaint) that Dr Malpas is a euthanasia supporter, including her membership of VES, her appearance on Breakfast in 2011 as a supporter of assisted dying, and an affidavit given by her in support of Lecretia Seales’ case, in which she argued that doctor-assisted dying could prevent people taking their own lives. We therefore do not consider that the statement was inaccurate or misleading.
Alleged implication that VES supported the survey
 Dr Malpas and Dr Oliver argued that the item gave the implication that VES had somehow supported the survey, which was not true as VES governance was ‘unaware of the research’. TVNZ ‘disagree[d] that there was any such implication in the item’.
 We agree with TVNZ that the item did not imply that VES supported the survey; all that was communicated by the item was that the researchers were members of VES, and this has not been disputed.
Although the survey was ‘for doctors and nurses only’, ONE News said it had ‘accessed it online, and found it easy to submit fake responses’. (Reporter)
 Dr Malpas and Dr Oliver argued that ‘the survey was inadvertently available on the internet for only two days’ and was not posted on ‘publicly accessible pages’. TVNZ argued that this was ‘simply not correct’ because it could still be found on several publicly accessible pages. TVNZ provided print-outs showing these pages’ links to the survey.
 Based on the material presented to us by TVNZ we find this statement did not breach the accuracy standard.
‘[T]he researchers cited Wikipedia as a source’. (Reporter)
 Dr Malpas and Dr Oliver argued that the ‘reference to Wikipedia material is included in the survey only as optional additional information’ and ‘neither the survey nor the research rely in any way whatsoever on information from Wikipedia’.
 TVNZ argued that the guidance material on the survey did direct participants to Wikipedia, and that, ‘[t]he point ONE News was making is that if it was necessary or relevant for additional information to be available to participants, it should not have come from Wikipedia, which is not acknowledged as a credible academic source’.
 Based on the material provided to us by TVNZ which shows that the introduction to the survey did cite Wikipedia, we find the statement was accurate and would not have misled viewers.
‘It will make the public feel that doctors and nurses are agreeable to the assisted dying changes, and I don’t think that’s true because the survey itself is fatally flawed’. (Palliative care doctor)
 Dr Malpas and Dr Oliver argued that TVNZ had no evidence that the doctor had ‘research expertise to justify her making this claim’, and said that this was an unfounded and prejudicial statement, because it was impossible to know what the research would show.
 TVNZ argued that the doctor was ‘highly experienced’ and is ‘chair of the Australia and New Zealand Society of Palliative Medicine Inc’. It said she ‘thoroughly read the survey before commenting’ and that her comments ‘reflected her opinion of the survey, after studying it’.
 Guideline 5a to the accuracy standard says that the standard does not apply to statements which are clearly distinguishable as analysis, comment or opinion. We consider that this statement was clearly the opinion of the palliative care doctor, and is therefore not subject to the accuracy standard.
‘The purpose of this study is to shape any future laws around euthanasia’. (Reporter)
 Dr Malpas and Dr Oliver argued that, in fact, the stated purpose of the survey was to ‘explore the range of attitudes of medical professionals towards physician-assisted dying’ and ‘to obtain information that can... inform the development of any potential legislation’, but it was not intended to ‘shape’ laws.
 TVNZ provided us with a statement from the introduction to the survey which said, ‘Aim of the research: To inform the shape of any future laws in New Zealand’ [our emphasis]. On this basis, we are satisfied that the statement in the item was not inaccurate or misleading.
Conclusion on accuracy
 For the reasons we have outlined in relation to each statement, we do not uphold the complaint under Standard 5.
Did the item discuss a controversial issue of public importance which required the presentation of alternative viewpoints?
 The balance standard (Standard 4) states that when controversial issues of public importance are discussed in news, current affairs and 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. The standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.4
 Dr Malpas and Dr Oliver argued that ‘[t]he reporter interviewed only people who are strongly opposed to assisted dying and who were strongly critical of the research’. They said the report ‘made no attempt to present any arguments that support the validity and appropriateness of the research... nor to demonstrate that the research method was robust’. However, Dr Malpas and Dr Oliver pointed out that ‘[w]hile the topic of assisted dying may be controversial, there had at the time of the news item been no other news coverage of our research, and there has been none since’.
 TVNZ said that ‘[t]he purpose of the ONE News story was to highlight the fact that these participants completed the survey without knowing that the researchers were aligned to a pro-euthanasia group, and therefore the participants may not have been able to give informed consent. The Committee accepts that this may be a controversial issue and notes that significant viewpoints were included in the item on this issue, including from Auckland University, [the palliative care doctor] and... [the] representative of the Care Alliance’.
 A number of criteria must be satisfied before the requirement to present significant alternative viewpoints is triggered. The standard applies only to news, current affairs and factual programmes which discuss a controversial issue of public importance. The subject matter must be an issue ‘of public importance’, it must be ‘controversial’ and it must be ‘discussed’.5
 The Authority has typically defined an issue of public importance as something that would have a ‘significant potential impact on, or be of concern to, members of the New Zealand public’.6 A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.7
 We accept that voluntary euthanasia, the subject of the research reported on, is a controversial issue of public importance.8 The programme subject to complaint was not, however, focused on the positional arguments for and against voluntary euthanasia, so it was not necessary for the broadcaster to provide alternative views on that issue.
 The item instead discussed what was described by TVNZ as ‘the integrity of one particular study’. The story did raise allegations of bias and flaws in government-funded research, which was apparently intended to ‘shape any future laws around euthanasia’ (see paragraphs  to  above). However, as pointed out by Dr Malpas and Dr Oliver, this was the only news report on the survey, and it does not seem to have sparked widespread controversy, discussion or debate outside academia, to a level that triggered the need to present other significant viewpoints. We think that in the circumstances it was sufficient that the perspective of the University and the researchers was sought and included in the item, and we do not think the broadcaster needed to go beyond them to obtain additional comments in support of the study.
 Accordingly we do not uphold the complaint under Standard 4.
 Dr Malpas and Dr Oliver also complained about the reporter improperly accessing the survey online and entering ‘fake’ responses, thus ‘potentially impair[ing] the integrity of the data of a piece of government-funded research’. This is not an issue of broadcasting standards that the Authority is able to consider.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
12 May 2016
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Phillipa Malpas’ and Pam Oliver’s formal complaint – 29 October 2015
2 TVNZ’s response to the complaint – 25 November 2015
3 Drs Malpas’ and Oliver’s referral to the Authority – 22 December 2015
4 Dr Oliver’s further comments on referral – 7 January 2016
5 TVNZ’s response to the Authority – 24 February 2016
6 Drs Malpas’ and Oliver’s final comments – 3 March 2016
7 Dr Oliver’s further final comments – 16 March 2016
8 TVNZ’s final comments – 18 March 2016
1Commerce Commission and TVWorks Ltd, Decision No. 2008-014
2 See, for example, HC and CT and Television New Zealand Ltd, Decision No. 2010-163
3Bush and Television New Zealand Ltd, Decision No. 2010-036
4 Commerce Commission and TVWorks Ltd, Decision No. 2008-014
5 For further discussion of these concepts see Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Television (Broadcasting Standards Authority, June 2010) and Practice Note: Controversial Issues – Viewpoints (Balance) as a Broadcasting Standard in Radio (Broadcasting Standards Authority, June 2009)
6Powell and CanWest TVWorks Ltd, Decision No. 2005-125
7 See, for example, Dewe and TVWorks Ltd, Decision No. 2008-076
8 See, for example, McQueen and TVWorks Ltd, Decision No. 2012-068