BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

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 – follow-up to TV3 “special investigation” Let Us Spray– said that Ministry of Health had “finally admitted it tests positive for political contamination” – allegedly unbalanced, inaccurate and unfair

Findings
Standard 4 (balance) – subsumed into consideration of Standards 5 and 6

Standard 5 (accuracy) – inaccurate to state that Ministry of Health had “finally admitted it tests positive for political contamination” – upheld

Standard 6 (fairness) – unfair to Ministry of Health – not unfair to peer reviewer of study or to ESR – upheld

No Order

This headnote does not form part of the decision.

Broadcast

[1]  An item on 3 News, broadcast on TV3 at 6pm on 1 November 2006, stated that the Ministry of Health had “finally admitted it tests positive for political contamination”. The presenter said that the Ministry of Health (MOH) had:

...agreed to a more convincingly independent-looking expert to review its hotly contested report on dioxin in Paritutu. It follows a campaign by 3 News and the residents that challenged the mettle of both the Ministry’s report and its peer reviews.

[2]   The 3 News reporter said that there had been a “surprising back-down” from MOH. Professor Allan Smith had been chosen to review MOH’s Paritutu dioxin study following a “special investigation” the preceding week by TV3, entitled Let Us Spray. During the previous night’s broadcast of 3 News, the reporter said, it had been revealed that Professor Smith was “far from independent”. A video clip was played showing Professor Smith giving a presentation to an audience and saying:

Now there’s an excellent report come out on dioxin exposures in Paritutu in New Zealand, and I do want to say, before I say my little word of criticism, I think it’s an excellent report. And in fact, I’m only going to criticise one sentence.

[3]   The reporter said that MOH had “quickly backed down” after being “faced with” the previous night’s 3 News report, and had asked the World Health Organisation to appoint a second scientist alongside Professor Smith to review the dioxin serum study. He reported MOH as having said, “...given the public concern about the integrity of this process the Ministry has taken these steps to reassure former Paritutu residents and the wider New Zealand public”. But, the reporter said, MOH was still defending Professor Smith, saying that the “questioning of his scientific integrity in recent days” was regrettable.

[4]   Tony Ryall, the National Party health spokesperson, commented that there had been “an incredible back-down by the Ministry of Health and the Government. Only 24 hours ago they were defending the need for only one expert opinion”. The reporter said that the Māori Party “says Smith is politically contaminated and should be dumped entirely”. The co-leader of the Māori Party Tariana Turia stated that Professor Smith should not be “involved in this at all”.

[5]   The reporter said that the TV3 “special investigation”, Let Us Spray, had “exposed potential flaws in the way the Health Ministry analysed the test results of the 52 residents who used to live near the Ivon Watkins Dow plant that produced the chemical 2,4,5-T used in Agent Orange”. He said residents were delighted that they were finally getting a fresh independent set of eyes. The reporter added:

And the Health Ministry’s back-down doesn’t end there. It’s also finally agreed to give the new scientist reviewing the findings the raw data from the confidential tests of residents – data that the first four international peer reviewers never saw. And there’s also one other major admission today by the Ministry of Health and what they have done is said that they admit that they misled Pete Hodgson [the Minister of Health] who said in Parliament last week that the four eminent scientists who initially reviewed the study actually got the raw material, the individual tests. They never got that. Pete Hodgson said they did in Parliament last week – that’s based on information from the Ministry of Health, and it’s wrong.

Complaint

[6]   MOH made a formal complaint about the item to CanWest TVWorks Ltd (CanWest), the broadcaster, alleging that the broadcast was in breach of Standards 4 (balance), 5 (accuracy) and 6 (fairness). It argued that the item presented as a fact that MOH had “finally admitted it tests positive for political contamination”, and that this was incorrect as MOH had made no such admission.

[7]   With respect to Standard 4 (balance), the complainant contended that the broadcaster should have sought comment from MOH on that assertion. Further, the item did not make it clear that the study which was peer reviewed was conducted not by MOH but by the Institute of Environmental Science and Research (ESR), and that the peer reviewer whose independence was attacked had been engaged by ESR.

[8]   In MOH’s view, the broadcaster’s failure to seek comment from ESR and from Professor Smith amounted to a serious breach of Standard 4.

[9]   Looking at Standard 5 (accuracy), MOH maintained that it had not “admitted it tests positive for political contamination”. It attached a copy of a press media statement that MOH had released on 1 November, and from which the broadcaster had taken statements for inclusion in the item. MOH contended that, if the broadcaster intended to criticise MOH on matters not contained in the media release, it should have approached MOH for further comment.

[10]   The complainant said that the claim of political contamination was demonstrably untrue, and it was clear from the media statement that MOH had not admitted to what 3 News claimed. It said:

The Ministry is not politically contaminated. By making this claim, TV3 was alleging that the Ministry was not acting independently. In fact, the Ministry and ESR have gone to considerable lengths to demonstrate the use of independent experts and independent agencies.

[11]   MOH maintained that the claim of political contamination had not been attributed to anyone in the item, but had been made by the broadcaster. The only reference to political contamination, it noted, was a reported comment from the Māori Party which was aimed at Professor Smith, not MOH. It concluded that the assertion amounted to a breach of Standard 5.

[12]   With respect to Standard 6 (fairness), MOH said that it was both willing and able to defend itself, and its actions were frequently reported by the media. However, in this case, it had not been given an opportunity to respond to attacks on the reputation and credibility of the organisation. MOH believed it was unfair for the broadcaster to make such serious criticisms without seeking comment from ESR, the peer reviewers of the serum study, and MOH.

Standards

[13]   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

[14]   CanWest contended that the introduction to the item was a headline; it was part of and closely linked to the rest of the story, and could not be viewed in isolation. In this case, it said, the headline was an “echo of the sentiments of one of the participants in the story”. The broadcaster did not consider that a reasonable viewer would have come away with the impression that MOH had actually admitted it was “politically contaminated”. It was confident that viewers would have understood that the statement was not meant literally, but was a reference to the acknowledgment in the story that MOH had given the wrong advice to the Minister the previous week. CanWest maintained that the statement was not inaccurate, unfair, or unbalanced.

[15]   Addressing MOH’s argument that 3 News should have sought comment from ESR or the peer reviewers, CanWest maintained that, “MOH commissioned the report. MOH promoted and publicly presented the report.” Therefore, it wrote, MOH was the party responsible for comment on the serum study.

[16]   The broadcaster argued that Professor Smith’s independence had been called into question by his own words which were included in the item. It provided a chain of email correspondence between TV3 and MOH in which MOH had advised the broadcaster that ESR had chosen Professor Smith independently of the Ministry, and that he did not have any current contracts with MOH, but that he had been contracted to conduct a health risk appraisal in 2001.

[17]   Against that background the broadcaster did not accept that the broadcast was unfair, inaccurate or unbalanced. It declined to uphold the complaint.

Referral to the Authority

[18]   Dissatisfied with CanWest’s decision, MOH referred its complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989. Looking at the broadcaster’s argument, MOH said that the response had been “confusing”. It wrote:

First, TV3 says the “political contamination” comment is a headline summary of one of the participants’ views...Presumably the participant referred to is Tariana Turia. However, Turia never says Smith is “politically contaminated” or anything like it. This is TV3’s paraphrase, which seems a big stretch from the remarks actually quoted.

TV3 then offers a completely different, and inconsistent, explanation. It says the phrase was a reference to the acknowledgment that the Ministry gave the Minister the wrong advice. The Ministry does acknowledge that it gave the Minister the wrong advice. But how this amounts to “political contamination” is a mystery. For one thing, it’s the first part of the item that appears to discuss the “political contamination” issue, and twice contains that phrase. The second part, about the incorrect information, is merely presented as another issue related to the Paritutu events. For another thing, “political contamination” conjures up an image of a political actor interfering with a supposedly non-political process. Yet here, it seems TV3 is arguing that the officials were politically contaminating the process.

[19]   Looking first at Standard 5 (accuracy), MOH reiterated its view that ordinary viewers would have understood the phrase “political contamination” to mean that MOH had admitted that it was influenced by some form of political interference. This was incorrect, it said, and MOH continued to believe that Professor Smith was “abundantly qualified and his integrity above reproach”. The second peer reviewer had been appointed:

...simply to allay public concerns that he had already expressed a positive view of the study. This is not an admission that the Ministry felt he was not independent or competent, or that the review process had been politically interfered with.

[20]   In MOH’s view, the item breached Standard 5 “by being flat-out inaccurate, leaving a misleading impression, and/or omitting information which viewers needed to properly understand what was being suggested”.

[21]   Turning to Standard 4 (balance), the complainant maintained that the allegation that MOH had acknowledged that its processes were not independent was serious, and should have been put to the Ministry for a response. MOH, ESR and Professor Smith all had significant views on this controversial issue, it said, yet they were not asked for a response.

[22]   With respect to Standard 6 (fairness), MOH argued that fairness dictated that Professor Smith and MOH should have been given an opportunity to respond to the broadcaster’s interpretation of the new development. It was particularly unfair to portray Professor Smith as “contaminated”, it wrote.

Broadcaster’s Response to the Authority

[23]   CanWest maintained that MOH “must be taken to have acknowledged valid concerns” about Professor Smith’s independence by seeking to appoint another reviewer. Taken together, it said, misinforming the Minister about whether the peer reviewers had the raw data from the serum study and the subsequent questioning of Professor Smith’s independence did amount to political contamination. The broadcaster said it believed the ordinary viewer would have taken from the phrase that “the actions and incompetence of MOH, at least with regard to its advice to the Minister, had serious political consequences”.

[24]   With respect to balance, the broadcaster maintained that the item was covering the new development of MOH seeking another peer reviewer; this was a simple fact that did not require comment, it wrote.

[25]   In CanWest’s view, it was not unfair to suggest that Professor Smith was “less than impartial” given his earlier comments about the serum study. It noted that Professor Smith had been an honorary epidemiologist to MOH according to an archived document dated 26 November 1981.

Authority's Determination

[26]   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.

Preliminary Matters

[27]   The broadcast that is the subject of this complaint took place on 1 November 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.

Standard 5 (accuracy)

[28]   The complainant’s main concern about this news item was the presenter’s initial statement, “The Ministry of Health has finally admitted it tests positive for political contamination.”

[29]   The Authority notes that the broadcaster has relied on two main arguments to support its contention that the statement was not inaccurate. The first argument is that the presenter’s statement was a summary of Māori Party co-leader Tariana Turia’s interview. The second is that the presenter’s statement referred to the Ministry’s admission that it had misled the Minister about whether the serum study peer reviewers had access to the raw data.

[30]   Looking first at the argument that the statement summarised Ms Turia’s views, the Authority finds no basis for this contention. The reporter said, “The Māori Party says Smith is politically contaminated and should be dumped entirely”. The reference was to Professor Smith being “politically contaminated”, not MOH as stated by the presenter. Even if the suggestion was that MOH had contracted Professor Smith and was somehow “politically contaminated” as a result, the Authority notes that it was ESR, not MOH, that contracted Professor Smith.

[31]   The Authority also disagrees with the broadcaster’s second argument, that the phrase was referring to the Health Minister being misled. This issue was introduced towards the end of the item – almost as an after-thought – and was clearly not the main story to which a headline would normally refer. The broadcaster accepted in its response to the Authority that the main story was covering the “new development” of the day: that MOH had announced it would be seeking a second peer reviewer. In the Authority’s view, the reasonable viewer would have linked the presenter’s introduction to that story, not to the late addition regarding the Minister.

[32]   The Authority acknowledges the broadcaster’s submission that a headline statement cannot be viewed in isolation. However, in this instance, it finds that the item as a whole supported the inaccurate impression that the Ministry had admitted to some kind of wrongdoing. The reporter said that there had been “a surprising back-down by the Ministry of Health”, Tony Ryall MP said that it had been “an incredible back-down”, and the reporter referred to “potential flaws in the way the Health Ministry analysed” the serum results. In the Authority’s view, the headline statement was not clarified by the body of the item in the way the broadcaster suggested.

[33]   The Authority agrees with the complainant that ordinary viewers would have understood the phrase “political contamination” to mean that MOH had admitted to having been influenced by some form of political interference. Neither the broadcaster’s submissions, nor the Ministry’s press release of 1 November 2006, contain any evidence to support the presenter’s statement that MOH had “admitted it tests positive for political contamination”.

[34]   Even if the headline was a clever quip to open the item, the Authority notes that it still needed to bear some relation to what had actually occurred so that viewers were not misled. Nothing in the broadcaster’s submissions has persuaded the Authority that the headline had any basis in fact. For the above reasons, the Authority finds that the headline was inaccurate.

Bill of Rights

[35]   Having found that the headline statement was 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.

[36]   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.

[37]   In the Authority’s view, upholding this part 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 presenter’s statement was inaccurate and would have left viewers with an incorrect impression of what the Ministry had done. 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)

Unfairness to MOH

[38]   In the Authority’s view, for the same reasons outlined above in paragraphs [29] to [34], MOH was treated unfairly by the broadcast of the news item. The inaccurate statement that MOH had admitted to having been influenced by some form of political interference reflected negatively on the complainant, and was unfair.

[39]   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.

[40]   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 presenter’s statement created an inaccurate impression which led to MOH being unfairly portrayed.

[41]   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.

[42]   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 MOH was treated unfairly in this respect.

Unfairness to Professor Smith

[43]   The reporter asserted that Professor Smith was “far from independent” and the item went on to explain that he had previously praised the serum study which he had then been asked to review. Although Professor Smith himself was not asked to comment, the item stated that MOH was “still defending Smith” and reported its view that “the questioning of his scientific integrity...is regrettable”. The reporter also relayed that MOH had agreed to appoint another reviewer “to reassure former Paritutu residents and the wider New Zealand public”.

[44]   The Authority considers that the item made it very clear that MOH was standing by Professor Smith and did not accept the claim that he was not independent. Further, the item gave sufficient information about why Professor Smith’s independence was being questioned so that viewers could make an informed decision about his suitability as a peer reviewer. In the Authority’s view, the combination of these factors was sufficient to meet the requirements of Standard 6. The Authority concludes that Professor Smith was not treated unfairly.

Unfairness to ESR

[45]   The Authority does not agree with the complainant that the item was unfair to ESR. While a fleeting reference to the “potential flaws” in the serum study was made, this was not the focus of the news item. In the Authority’s view, the short and qualified criticism of the serum study did not require a response from ESR. It acknowledges the reality that news items are necessarily brief, and that broadcasters cannot be expected to seek comment on each auxiliary element of a story unless an aspect of the story is otherwise inaccurate or unfair. That was not the case here.

[46]   In these circumstances, the Authority finds that ESR was not treated unfairly and it declines to uphold this part of the complaint.

Standard 4 (balance)

[47]   In the Authority’s view, the parts of MOH’s complaint 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 complaint that the broadcast by CanWest TVWorks Ltd of an item on 3 News on 1 November 2006 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[48]   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.

[49]   MOH submitted that the Authority should order TVWorks to broadcast a comprehensive summary of the Authority’s decision during 3 News. The broadcaster also submitted that the only order the Authority should make was for the broadcast of a statement.

[50]   The Authority does not intend to impose an order in relation to this complaint. It notes that the subject matter of the item was related to two other programmes – Let Us Spray and a 3 News item on 24 October 2006 – which were also subject to complaint (see Decision Nos. 2007-012, 2007-013 and 2007-015). The Authority has ordered that statements must be broadcast in relation to both of those decisions, and it considers that the breaches of broadcasting standards in those cases were more serious than it has found here.

[51]   In the Authority’s view, all of these decisions are likely to be subject to a substantial amount of media coverage in print, and on radio and television. Taking this into account, it considers that the publication of this decision is sufficient in all the circumstances.

Signed for and on behalf of the Authority

Joanne Morris
Chair
5 August 2009

Appendix

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

1.           MOH’s formal complaint – 29 November 2006
2.          CanWest’s decision on the formal complaint – 22 December 2006
3.          MOH’s referral to the Authority – 2 February 2007
4.          Further submission from MOH – 2 March 2007
5.          CanWest’s response to the Authority – 7 August 2007
6.          MOH’s submissions on orders – 9 July 2009
7.          CanWest’s submissions on orders – 22 July 2009