BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint about the statement ‘a review has found that the deaths of the two people who were isolating at home in Auckland with COVID were both preventable’ when the finding was that the deaths were ‘potentially preventable’. This would not have materially mislead listeners, noting the interviewee featured after these introductory comments stated the deaths were ‘potentially preventable’ and provided context and detail about the review.

Not Upheld: Accuracy

The broadcast

[1]  On 26 November 2021, on Heather du Plessis-Allan Drive, an upcoming interview was referred to in a news segment and later by host Heather du Plessis-Allan:

• ‘A review released today found the deaths this month of two Aucklanders with COVID isolating at home could have been prevented. Both were living alone. Ashley Bloomfield says overall, the systems worked well’ (reporter). ‘In this case, it was identified that there were slip ups in the system and things that could have been done better. Improvements have been made so that the system is working even better for people.’ (Dr Bloomfield) (from 00.03min)
• ‘A review has found that the deaths of the two people who were isolating at home in Auckland with COVID were both preventable. So we're going to deal with that in 10 minutes time’. (from 00.32min)

[2]  The interview, with Fepulea'i Margie Apa, Northern Region Health Coordination Centre Lead, was introduced (from 00.47min):

A review has found that the deaths of the two people who were isolating at home in Auckland separately with Covid were both preventable and the report was commissioned by the Northern Region Health Coordination Centre after the first death at the start of this month. Margie Apa is the NRHCC lead and with us now.

[3]  Du Plessis-Allan asked, ‘What could you have done to prevent the deaths?’ and Apa responded:

The review does point to a number of things that we could have done, the deaths were potentially preventable. The coroner, of course, will go through their process, but we initiated this review pretty much, pretty quickly because we didn't really want to wait. And what this review has pointed out that there are a number of things that we could have done better. It does point out that having more clinical information at the beginning when we're assessing or talking to these two cases may have made a difference in that we may have recommended that they go into MIQ.

The complaint

[4]  Luka Miliša complained the broadcast was misleading as du Plessis-Allan ‘purposefully declared the result of the review of the two deaths in self isolation as being “preventable”’ when they were ‘potentially preventable’. This was not an expression of opinion, and the ‘omission of facts is significant in nature’. The statement was repeated throughout the programme.

The broadcaster’s response

[5]  NZME Radio Ltd (NZME) did not uphold the complaint:

• The programme was talkback which is not usually subject to the accuracy standard unless the host makes an unqualified statement on fact.
• The statement falls into the category of comment, analysis and opinion and therefore the standard did not apply.
• ‘In any event, Ms Apa noted during the subsequent interview that the review had found the deaths to be “potentially preventable” and consequently we do not consider that our listeners would have been significantly misled by the comment’.

Our analysis

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

[7]  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.

[8]  The purpose of the accuracy standard¹ is to protect the public from being significantly misinformed.² 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. Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’³

[9]  The standard does not apply to ‘analysis, comment or opinion’.⁴ A fact is verifiable, something that can be proved right or wrong. It is not always clear whether a statement is an assertion of fact or an opinion, this will depend on the context.⁵

[10]  Further, the standard is concerned only with material inaccuracies. Technical or other points unlikely to significantly affect listeners’ understanding of the programme as a whole are not considered material.⁶ In the event a material error of fact has occurred, broadcasters should correct it at the earliest appropriate opportunity.⁷

[11]  We consider the statements that the deaths were ‘preventable’ (rather than ‘potentially preventable’) are statements of fact. Accordingly, the accuracy standard applies. However, we found the distinction between ‘potentially preventable’ and ‘preventable’ was not a material inaccuracy in the context. The term ‘preventable’ was used in previewing the interview with Apa, who said the deaths were ‘potentially preventable’ and provided specific detail around this (including noting things that, in her words, ‘may have’ made a difference).

[12]  In addition, any listeners who only heard the ‘preventable’ statements are, in our view, likely to have understood this meant there were more steps which could have been taken to avoid the deaths. The lack of the qualification ‘potentially’ would not have materially mislead listeners.

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

Susie Staley
Chair
11 April 2022    

Appendix

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

1  Luka Miliša’s complaint to NZME – 29 November 2021

2  NZME’s decision on the complaint – 17 January 2022

3  Miliša’s referral to the BSA – 10 February 2022

4  NZME comments on the referral – 3 March 2022

5  Miliša’s final comments – 7 March 2022

¹ Standard 9 of the Radio Code of Broadcasting Practice
² Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
³ Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110 at [98]
⁴ Guideline 9a
⁵ Guidance: Accuracy – Distinguishing Fact and Analysis, Comment or Opinion, Broadcasting Standards in New Zealand Codebook, page 64
⁶ Guideline 9b
⁷ Guideline 9c