BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

An episode of Marcus and Joni breached the accuracy standard as it contained inaccurate and misleading information about COVID-19 vaccines and their safety. It also promoted conspiracies and advocated for ineffective remedies. The Authority found the broadcaster had not made reasonable efforts to ensure the accuracy of the programme, particularly as the guests were not recognised experts in the subjects discussed. The balance and programme information standards did not apply.

Upheld: Accuracy

Not Upheld: Balance, Programme Information

Orders: Daystar: Section 13(1)(a) – broadcast statement; Section 16(4) – $500 costs to the Crown; Mainland: Section 16(4) - $500 costs to the Crown

Background

[1]  Mainland TV is a regional broadcast network based in Nelson which broadcasts eight TV channels and two radio stations. One of these channels is a direct pass-through of Daystar, an American faith-based network.

[2]  Tony Naughton complained to Mainland TV about a programme on Daystar, Marcus and Joni. Mainland responded that the programme did not breach any standards.

[3]  Naughton then referred his complaint to the BSA. In response, Mainland submitted the complaint should not be considered a formal complaint within the BSA’s jurisdiction, because:

Daystar leases a 24/7 TV channel from us just like it does with SKY. We lease broadcast facilities to other parties as well as Daystar just like Kordia, SKY and JDA.

We provide the broadcast facilities only and have no input as to content which is delivered via satellite live and rebroadcast live.

Before we sign a lease with broadcasters we make sure their content has a General rating only and that content excludes murder, violence, bad language, drugs and other antisocial and illegal content etc and we have set this policy based on BSA standards and guidelines.

[4]  We consider Mainland (as well as Daystar) to be broadcasters subject to the Broadcasting Act for the following reasons:

• We have previously recognised that the New Zealand broadcaster or ‘host’ of foreign ‘pass-through’ content is subject to the obligations in the relevant Code of Broadcasting Practice.¹
• The BSA has also engaged directly with broadcasters not based in New Zealand where their content is freely available to a New Zealand audience.²
• Mainland has indicated a level of control over the content broadcast, as it chooses the channels to which it offers services and ensures the content of such channels is limited to that described in paragraph [3] above.³

[5] As in Christoforou and Al Jazeera Network, we have engaged directly with Daystar regarding the broadcast. We note this does not exempt Mainland from its obligation to comply with the Broadcasting Act, including being subject to the complaints process and any orders the Authority may make.

[6]  While determined under the Pay TV code, the approach in UJ and Sky Network Television is relevant to our application of the Broadcasting Act in this case as well:⁴

[7]  The Code recognises that pay television broadcasters may offer channels over which they have no (or little) editorial control, for example, foreign pass-through channels. This limited control of the broadcaster will be an important consideration when assessing whether a programme has breached standards. Daystar is effectively a foreign pass-through channel. In our determination of the complaint we have taken into account the limited editorial control Mainland has over Daystar as a pass-through channel.

The broadcast

[8]  Marcus and Joni is a faith-based daily programme hosted by husband and wife Marcus and Joni Lamb who talk to various guests on different themes. On 31 August 2021 at 9pm, Dr Judy Mikovits and Dr Lawrence Palevsky appeared as guests to discuss the COVID-19 pandemic.

[9]  We acknowledge that subsequent to this broadcast, on 1 December 2021, Marcus Lamb died of COVID-19.⁵

Relevant excerpts of the broadcast

[10]  Dr Mikovits claims COVID-19 vaccines are ‘a synthetic, lab drawn synthetic virus in a synthetic lipid nanoparticle which mimics a virus’ and ‘the envelope, the spike protein alone causes the disease’, which the immune system will attack. Marcus Lamb clarified, ‘and so our immune system is not attacking the COVID it’s attacking that spike protein, which is attached to our body. So our body is now like attacking itself. Is that what you're saying?’ Dr Mikovits responded:

Correct…I hear other virologists and other immunologists saying we made a mistake. Wait a minute. We made a mistake as they're seeing the vaccinated, you know, really dying. It's scary numbers we're seeing in the hospital… So at the end of the day, you've made your cell manufacture the disease causing agent, you've made it gene therapy. And the gene you're injecting is synthetic. And I say it's a synthetic of the worst three plandemics of my lifetime, AIDS, XMRVs, and SARS. So you took the deadly part of each one and you put them in a single little nice synthetic package, synthetic virus, and you injected 50 billion particles in innocent humans.

[11]  Joni Lamb asked whether the vaccines contain graphene oxide. Dr Palevsky responded:

Well, it depends on who you ask. If you go to Spain, if you go to Spain and you look at the science that was done in Spain, you will see that graphene oxide is in the shots. Now, there are some people who have evaluated the shots since then and have not found graphene oxide. And some are wondering if the formula was changed, which they can change. No one's overlooking the manufacturing process of these shots. The manufacturers are completely immune to any liability. So no one's really watching it. But it is a metallic element and it is capable of contributing to many of the symptoms of COVID-19 that we see, including a disassociation of oxygen from the red blood cell. And so we're not sure what's in there. So I can say yes. Do I trust the scientists in Spain? Yes. But am I a scientist and need to know more? Yes, we need to have adequate evaluations of what's in these shots.

[12]  Dr Mikovits said, in response to a question about why unvaccinated people in hospital are the ones dying:

The people in the hospital who are dying, the unvaccinated are being exposed. They're already in a hospital and they're sick. So you put immune compromised people into a hospital and expose them to that deadly spike protein. So it is - the vaccinated people are making the patients sick. And I saw it, I spend a lot of time still working with cancer patients. And they're killing them. They're killing them. The nurses and doctors are killing the cancer patients…I can’t even comprehend that…somebody would give an injection where…you’ve got a blank package insert of what’s in it to a compromised patient on chemotherapy.

[13]  Marcus Lamb then said:

I got to highlight…we can’t let that slip by. Did you hear what she said? Did you notice a ‘blank insert’? Any kind of shot, any kind of medicine that a doctor gives you is supposed to have an insert with all of the ingredients? Did you hear what Dr Mikovits said? It’s a blank insert. So they’re giving shots to people that are already compromised with their immune system and they don’t even know what is in the shot…

[14]  The broadcast contained a number of other comments about the safety of vaccines:

• Dr Mikovits suggested ‘every single shot we’ve had since the mid-80s’ is ‘contaminated’ and ‘could be deadly’
• Dr Mikovits stated ‘I have interviewed many people with very severe adverse effects, nurses and people in the medical community who neurologically have been affected with not being able to control their arms and legs’ and ‘people who had cancer who have been clear for years…they got the shot and then within weeks and months, a new cancer would return’.
• Marcus Lamb referred to Dr Mikovits’ ‘journey’ or ‘passion’ to ‘prevent people from the sickness, the disease and the death that we’re seeing now plaguing us because of the so-called vaccine to help deal with the plague. It’s become its own plague’.
• Dr Palevsky referred to those coming into ‘intimate contact or somewhat around’ the vaccinated developing ‘very significant symptoms, including…death’.
• Dr Palevsky said ‘There’s no understanding of what’s in the shot. And we just carte blanche agree that it’s safe. And that’s been a mantra for decades. Vaccines are safe and vaccine injury is rare. And those two mantras are not true.’

[15]  The programme made a number of references to a ‘plandemic’ or deliberate spreading of COVID-19:

• Marcus Lamb discussed theories relating to the establishment of a ‘new world order’ by the Bilderberg Group, commenting ‘some people feel that there is a conspiracy, by world leaders, by the elitists of the world, for greater control and for depopulation…’. Subsequently, on introducing Dr Mikovits he highlighted this again, ‘Not Pandemic, but plan-demic because there is a plan and I just shared to you all the way back at least to 1981 and probably beyond for what’s happening here today’.
• ‘So my question is, these doctors that are espousing getting the jab, are they ignorant? Had they been brainwashed? Are they afraid of losing their medical licence or are being ostracised by their peers or a combination thereof? What do you say?’ – Marcus Lamb. ‘My short answer would be yes.’ – Dr Palevsky
• Re COVID-19 being developed to be a bio-weapon:
  (a)  ‘So in Fort Detrick in Frederick, Maryland, that biosafety level four facility called USAMRIID, U.S. Army Military Research Institute and Infectious Disease was right across from the Cancer Institute from the mid-90s. We'd been taking animal tissues, bats, monkeys, everything else from Africa, from places around the world, and mixing those with human tissues, human cell lines. And this is how those things got contaminated. So, yes, it's absolutely bio warfare. That was where we did bio warfare back in the 80s. That was what that facility was for.’ – Dr Mikovits
  (b)  ‘And you were saying long before the evidence came out that it started in the North Carolina where they developed the cell line. They had a lab there and then it was sent to Wuhan where they weaponized it and put the spike protein? I guess on top you were saying that everyone was saying you're crazy. But now that's actually panned out with the documentation that we have.’ – Joni Lamb

[16]  Both guests spoke about sunshine, vitamins and alternative medicines. Dr Mikovits recommended sunshine and vitamins for people who had received the vaccine and were worried about it affecting their health. She said:

…you also transmit, can transmit the disease to others. So ozonated creams on the skin. We know energy therapies can break down this synthetic lipid nanoparticle light sound. Other kinds - there's an instrument called hocatt, it's like, I call it an ozone sauna, with a little electrolysis, so it can detox some of the toxicity to support it. So oxygen is very important…So at every level we can do that. Then natural products, sunshine, vitamin D, not stressing, joy, hugging, loving, vitamin C…

[17]  Dr Palevsky spoke of his personal experience of being sick with COVID-19:

OK, so I was pretty sick and I reached out to many of my colleagues in medicine, in Chinese medicine, in homoeopathy and in chiropractic. And so the way I healed it was high doses of vitamin C, high doses of vitamin D, zinc, glutathione, iodine, hyperbaric oxygen therapy, Chinese medicine and Chinese herbs. And that really worked for me, plus a lot of prayer. I mean, I literally looked up at the sky one day and I said, OK, Lord, I'm not going to the hospital. If I'm going to die, I'm going to die here because they don't trust the hospital knowing what they were already doing to patients in New York who were being put on ventilators inappropriately because it wasn't the correct treatment. And I basically said, if it's my time, it's my time, but I'm not going to the hospital. And it was in the next day when I started to get the kind of treatments from my colleagues and friends that helped me turn the corner.

The complaint

[18]  On 1 September 2021, in his original complaint to the broadcaster, the complainant wrote:

I have a real concern and wish to complain over the Broadcast on Daystar TV. I sometimes channel surf around 9pmish and have noted over the past few weeks that this particular channel is promoting falsehoods and misinformation over the COVID vaccines. Last night. For example. The Hosts Marcus and Joni Lamb and a guest were stating falsehoods about the vaccines, changing DNA, synthetic injections as well as multiple deaths in hospital as a result of vaccines, etc. I don’t believe this is at all factual and in fact is harmful, and would request such programmes be fact checked and not broadcast if false.

[19]  Although the complainant did not specify standards and was not specific about the programme complained of, this complaint indicated the broadcast date and time (‘around 9pmish’, ‘Last night’) and impliedly raises the accuracy standard (‘promoting falsehoods and misinformation’).

[20]  In his referral to the Authority, the complainant submitted:

• The programme contained ‘falsehoods over the Covid vaccines, the one on August 31 was stating huge number of deaths after people taking vaccines, leave it to the Lord, take sunshine etc to build up immunity and injections are injecting synthetics which later DNA etc. No balance or scientific basis at all’.
• ‘[The] programme was biased against vaccinations and stated various conspiracy theories with no scientific basis or alternative views or any balance.’
• It ‘advocated natural remedies, like sunshine, etc to boost immunity and stated conspiracy theories against vaccines’.

[21]  While the complainant also raised balance and programme information in his referral to the Authority, we found these standards were not capable of being implied into the original complaint, and in any event, the complaint would not succeed under either of them, as outlined below.

The broadcaster’s response

[22]  As outlined above, Mainland chose not to respond to the referral, but submissions provided by Daystar:

• denied there was ‘no scientific basis’ for allegations (based on the qualifications of the guests)
• emphasised the ‘public interest’ in the subject and the ‘failure of mainstream media’ to carry out such ‘investigatory broadcasting’
• argued viewers are provided with the information necessary to assess the content because the interviewees’ credentials are provided and the ‘lesser-heard’ views are provided with ‘very strong caveats’ including:
  (a)   reminders for people to do their own research and not take any views for granted
  (b)   an understanding Daystar’s views are not those of the mainstream media
  (c)   a realisation many will disregard views they hear
  (d)   the knowledge that opposing views are available from other media
  (e)   constant challenging of guests to justify their stance.
•  argued the information was ‘honest expressions of opinion’
•  stated the message for viewers to do everything they can for their own immune system is a ‘simple non-controversial message’
•  argued the complainant was channel-surfing and was not the target audience for the programme
•  stressed that viewer expectation is important, noting Daystar is a ‘well-established worldwide religious channel’ with a ‘self-selecting audience well aware of the channel’s religious intentions’ and if they ‘reject the content they cease to watch’.

The standards

[23]  The purpose of the accuracy standard⁶ is to protect the public from being significantly misinformed.⁷ 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

[24]  We have watched the broadcast and read the correspondence listed in the Appendix.

[25]  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.

[26]  We first note Daystar made arguments based on context and viewer expectations, noting the complainant was channel-surfing and was not the target audience for the programme. This is not a relevant consideration under the accuracy or balance standards. There is no audience to which it is appropriate to target inaccurate, misleading or unbalanced news, current affairs or factual information – particularly in relation to critical matters of public health. In addition, while a regular Daystar viewer’s understanding of issues from other programmes can be relevant under the balance standard, compliance with the accuracy standard is assessed only by reference to the content of the programme complained about.

Does the accuracy standard apply?

[27]  The accuracy standard only applies to news, current affairs and factual programming. It has been applied to various current affairs panel shows such as The Panel, Nine to Noon, The AM Show, Seven Sharp, Sunday Morning, Mike Hosking Breakfast⁸, and recently, Talanoa Sa’o.⁹

[28]  We find the programme fits within the category of news, current affairs and factual programming. The guests were introduced as experts, and the programme introduced as ‘this is going to be another one of those blockbuster programmes exposing the truth about the so-called COVID vaccination’. Additionally, there was an ‘overview’ for the interviews in the programme, which was designed and presented like a factual documentary programme.

Is the content ‘analysis, comment or opinion’ to which the accuracy standard does not apply?

[29]  Daystar argued that the content of this programme reflected ‘honest expressions of opinion’. The accuracy standard does not apply to statements clearly distinguishable as analysis, comment or opinion, rather than statements of fact.¹⁰

[30]  The Authority has previously found statements by experts in their field often amount to analysis or opinion and are not subject to the accuracy standard, for example, where an expert is providing a view on the public health risks of weed killer,¹¹ or where a scientist is making a prediction or reporting on new findings.¹²

[31]  However, expert discussion is not automatically considered opinion or comment. Experts may within their analysis make statements of fact, and as previously found, it is important any experts that may be used make accurate statements of fact.¹³

[32]  In this case, we are satisfied the alleged inaccuracies (described below) were not delivered as expressions of opinion but as fact. Nor were they delivered, as the broadcaster suggested, with ‘very strong caveats’ encouraging viewers to do their own research or form their own views or, in case of the doctors’ comments, with ‘constant challenging’ by the hosts. Had that occurred, it may have reinforced the ‘opinion’ argument. However, aside from a brief reference at the end (‘I can’t tell you what to do, but make an informed decision, make a prayerful decision’), the hosts effectively provided a platform to draw out, endorse and reinforce the various falsehoods as fact. This included by:

(a)  adding information, stories and comments to expand upon and support the points made

(b)  describing one or both of the doctors as ‘fighting for truth’, ‘having the courage to speak the truth’, ‘heroes’, ‘warriors’ and ‘an instrument of righteousness that God is using’.

The alleged inaccuracies

[33]  The complainant has alleged the programme was ‘promoting falsehoods and misinformation’. He provided some examples of such falsehoods (‘multiple deaths in hospitals as a result of vaccines’, ‘changing DNA’, ‘advocated natural remedies, like sunshine, etc to boost immunity’) and alleged the programmes ‘stated various conspiracy theories with no scientific basis’. We watched the entire programme and will address the key ‘falsehoods’ under the following categories:

(a)  Vaccine safety

(b)  Vaccine/COVID-19 is part of a ‘conspiracy’ or hidden agenda by elite/leaders

(c)  Vitamins etc are an effective treatment/preventative for COVID-19

[34]  Our findings are based on the following facts:

• COVID-19 is a serious, infectious illness which has caused many deaths around the world,¹⁴ and some people who contract COVID-19 require professional medical care or hospitalisation to recover.¹⁵
• COVID-19 vaccines approved for use around the world are safe and effective.¹⁶

(a) Vaccine safety

[35] The programme contained statements about the contents of COVID-19 vaccines and about death or illness caused by COVID-19 vaccines (see paragraphs [10]-[14] above). We found these statements inaccurate and misleading for the following reasons:

• COVID-19 vaccinations are not causing people’s bodies to attack themselves, and, while adverse reactions can occur with any vaccine, the vaccinations are not causing large numbers of people to die or get sick.¹⁷
• COVID-19 vaccinations have saved thousands of lives.¹⁸
• ‘Since December 2020, more than 350 million doses of COVID-19 vaccine have been administered in the U.S., and VAERS [Vaccine Adverse Event Reporting System] has received 6,968 reports of death (0.0019%), according to the CDC. (Numbers as of Aug. 26, 2021) However, that statistic offers no insight into the cause of death for those people. If a 90-year-old nursing home resident got the vaccine and then died days, weeks or even months later of another ailment, the resident’s death would be reported to VAERS.’¹⁹
• Unvaccinated people are dying from COVID-19, not from something caught from vaccinated people.²⁰

[36]  Dr Mikovits implied COVID-19 vaccines cause autoimmune disease as they will teach the body to ‘attack’ itself. This is incorrect and misrepresents how the mRNA vaccines work.²¹ Even though Dr Mikovits didn’t specifically say vaccines alter DNA, her comments about the structure and effect of mRNA vaccines were inaccurate and misleading, as per the following information from the USA’s National Institute of Health:²²

• ‘mRNA vaccines inject cells with instructions to generate a protein that is normally found on the surface of SARS-CoV-2, the virus that causes COVID-19.’
• ‘The protein that the person makes in response to the vaccine can cause an immune response without a person ever having been exposed to the virus that causes COVID-19. Later, if the person is exposed to the virus, their immune system will recognize the virus and respond to it.’
• ‘mRNA vaccines are safe and cannot alter your DNA, and you cannot get COVID-19 from the vaccine.’

[37]  Dr Palevsky’s statements regarding graphene oxide and oversight on the development of vaccines were also misleading:

• No COVID-19 vaccines contain graphene oxide, and if they did, they would not be a clear liquid.²³
• COVID-19 vaccines are regulated for safety and effectiveness.²⁴

(b) Vaccines/COVID-19 is part of a ‘conspiracy’ or hidden agenda by elite/leaders

[38]  The programme makes a number of references to a ‘plandemic’ or deliberate spreading of COVID-19, (see examples above at paragraph [15]).

[39]  Although some aspects of these comments may be considered opinion (for example, the comments about doctors being afraid, or comments like ‘some people feel there is a conspiracy…’) there are clear assertions of fact that the pandemic was ‘planned’, eg:

• ‘because there is a plan and I just shared to you all the way back at least to 1981 and probably beyond for what's happening here today’ - Marcus Lamb
• ‘And you [Dr Mikovits] were saying long before the evidence came out that it started in North Carolina where they developed the cell line…everyone was saying you’re crazy. But now that’s actually panned out with the documentation that we have’ – Joni Lamb.

[40]  We find these statements are inaccurate and misleading as COVID-19 is not a bioweapon²⁵ and according to the World Health Organisation, was not man-made and most likely spread to humans from animals.²⁶

(c) Vitamins etc are an effective treatment/preventative for COVID-19

[41]  Both guests spoke about sunshine, vitamins and alternative medicines, as outlined at paragraphs [16]-[17].

[42]  We found these statements inaccurate and misleading for the following reasons:

• People who have received COVID-19 vaccines do not require any kind of treatment ‘against’ the vaccine, which is safe.²⁷
• Vitamins can boost immunity but are not cures or treatments for COVID-19;²⁸ nor is sunshine.²⁹

Reasonable efforts to ensure accuracy

[43]  In light of the various resources and authorities we have identified above, we are satisfied any reasonable effort by the broadcaster would have demonstrated the falsity of the points complained about.

[44]  Daystar has suggested there was a ‘scientific basis’ for the material presented (based on the qualifications of the guests). However:

a)  Dr Mikovits is not a reliable expert on COVID-19, or associated vaccines or treatment. She appeared in COVID-19 conspiracy documentary Plandemic (removed from YouTube, Vimeo and Facebook for violating community guidelines³⁰) and has made ‘many unfounded claims’ about COVID-19.³¹

b)  Dr Palevsky is a paediatrician and ‘anti-vaccine activist’.³² He is ‘a leading proponent of the discredited conspiracy theory that vaccines are related to autism’.³³ He is known for spreading vaccine misinformation even prior to the COVID-19 pandemic,³⁴ and theories he spreads about COVID-19 vaccines have been debunked.³⁵

[45]  Given this, we consider the broadcaster cannot rely on Dr Mikovits or Dr Palevsky as experts to demonstrate they made reasonable efforts to ensure the accuracy of the programme.

The remaining standards

[46]  Naughton complained the ‘programme was biased against vaccinations and stated various conspiracy theories with no scientific basis or alternative views or any balance’.

[47]  The Authority has previously found the safety and efficacy of COVID-19 vaccines is not a controversial issue to which the balance standard applies.³⁶

[48]  While the programme was misleading and peppered with misinformation and conspiracy theories, the inclusion of other points of view (ie that COVID-19 vaccines are safe and effective) would be unlikely to mitigate the harm caused by the broadcast of conspiracy theories. Accordingly, the issues with the programme are most effectively addressed under the accuracy rather than the balance standard.

[49]  The programme information standard is concerned with ensuring programmes are correctly classified and scheduled in appropriate timeslots. It is not applicable to the complainant’s concerns.

For the above reasons the Authority upholds the complaint that the broadcast of Marcus and Jodi on 31 August 2021 breached Standard 9 (Accuracy) of the Free-to-Air Television Code of Broadcasting Practice.

[50]  Having upheld these complaints under the accuracy standard, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Mainland

[51]  In response to the provisional decision, Mainland reiterated it was not subject to the Broadcasting Act as it falls under the s 2(2) exemption. We have provided further detail in paragraphs [4]-[7] above to clarify our position for Mainland.

[52]  In making orders, we have taken into account the limited editorial control Mainland has over the Daystar channel.

[53]  Mainland also commented:

As an observer we see the accuracy issue is not the broadcaster’s role or control in live shows with experts as it does not produce nor has any control over guests nor can it be done as we understand the presenters were repeating content and asking questions from many Doctors, guests and Health professionals.

[54]  The broadcaster is obligated to make reasonable efforts to ensure the accuracy of a programme. As outlined at paragraphs [43]-[45], the broadcaster failed to make such efforts in this case.

Daystar

[55]  Daystar has not accepted the Authority’s findings, arguing the accuracy standard did not apply as the contributors were providing opinion or comment:

We profoundly disagree with the descriptions of the contributors as set out. We believe the report has chosen to ignore or traduce their qualifications and to misconstrue the situation with regard to their presentation of what we believe can only be regarded as views rather than facts.

[56]  Daystar submitted viewers would be aware what they are hearing from Dr Mikovits and Dr Palevsky are their views, and the finding ‘displays what appears to us to be a “closed opinion” that questioning the vaccine content and rollout falls outside the realms of expression of opinion and free speech’.

[57]  We disagree. As outlined in paragraph [25], the right to freedom of expression is the starting point in our consideration of all complaints. We only intervene when the limitation on the right to freedom of expression is reasonable and justified, in light of actual or potential harm caused. The content we have found to breach the accuracy standard is not ‘questioning the vaccine content and rollout’ but rather the dissemination of inaccuracies about the safety and efficacy of the vaccine, presented as factual information, alongside the promotion of conspiracy theories and advocating for ineffective remedies. This is not a valuable contribution to the COVID-19 discussion, and we consider given the potential harm this causes, upholding this complaint and making orders against the broadcasters is a justifiable limitation on their right to freedom of expression.

The complainant’s submissions

[58]  Naughton agreed with the findings and submitted a broadcast statement by Daystar would be the most suitable order.

Orders

[59]  In determining whether orders are warranted, the factors we take into consideration are:³⁷   

• the seriousness of the breach, and the number of upheld aspects of the complaint
• the degree of harm caused to any individual, or to the audience generally
• the objectives of the upheld standards
• the attitude and actions of the broadcaster in relation to the complaint (eg, whether the broadcaster upheld the complaint and/or took mitigating steps, or whether the broadcaster disputed the standards breach and/or aggravated any harm caused)
• whether the decision will sufficiently remedy the breach and give guidance to broadcasters, or whether something more is needed to achieve a meaningful remedy or to send a signal to broadcasters
• past decisions and/or orders in similar cases.

Mainland - orders

[60]  The following aggravating and mitigating factors are relevant in this case:

Aggravating factors:

• The conduct is at the serious end of the spectrum, given the strong public interest in accurate information around COVID-19 vaccinations and treatments.
• Multiple inaccuracies were found.
• Mainland has not accepted the finding and has defended providing a platform for Daystar to spread misleading information.
• Mainland continues to promote misleading information sourced from Daystar on its website: www.mainlandtv.nz 

Mitigating factors:

• This is the first accuracy complaint upheld against Mainland.
• Mainland has limited editorial control over the content on Daystar.
• Mainland does not have a large share of the New Zealand audience given its limited reach.

Costs to the Crown – section 16(4)

[61]  Costs to the Crown (up to $5,000) are usually ordered where a broadcaster’s conduct resulting in a breach of standards is at the medium-to-serious end of the spectrum, and the Authority determines a punitive response is required.

[62]  We recently made a costs order in the amount of $500 for a breach of the accuracy standard.³⁸ In our view, having balanced the factors outlined above, the conduct and seriousness of the breach justify an award of costs to the Crown in this instance. We consider a punitive response is required to hold the broadcaster to account, deter future non-compliance and confirm our expectations, especially given Mainland’s continued denial of the Authority’s findings.

[63]  We consider a costs order in the amount of $500 is appropriate.

[64]  Given the limited editorial control Mainland has over the Daystar channel, we do not consider any further orders against Mainland to be appropriate.

Daystar - orders

[65]  The following aggravating and mitigating factors are relevant in this case:

Aggravating factors:

• As above, the conduct is at the serious end of the spectrum, given the strong public interest in accurate information around COVID-19 vaccinations and treatments and multiple inaccuracies were found.
• Daystar has not accepted the finding.
• The inaccuracies were not errors or oversights but part of an editorial agenda promoting misleading and false information.

Mitigating factors:

• This is the first accuracy complaint upheld against Daystar.

Broadcast statement – section 13(1)(a)

[66]  A broadcast statement is typically ordered where we consider publication of the decision is insufficient to publicly denounce the breach of broadcasting standards, censure the broadcaster, or rectify the harm caused.

[67]  The breach of standards in this case had the potential to significantly mislead viewers about serious issues where there is a strong public health need for accurate information about COVID-19.

[68]  We consider a broadcast statement is an appropriate remedy for the harm caused in this case. A broadcast statement will identify and correct the inaccuracies.

[69]  Consistent with the Authority’s usual practice, the broadcaster will draft a statement summarising the upheld aspects of our decision, for approval by the Authority. The statement should be broadcast at a similar time, and on the same day of the week, as the original broadcast, in order to reach a similar audience.

Costs to the Crown – section 16(4)

[70]  As above, the conduct and seriousness of the breach justify an award of costs to the Crown. We consider a punitive response is required to hold the broadcaster to account, deter future non-compliance and confirm our expectations.

[71]  We consider a costs order in the amount of $500 is appropriate.

Orders

1.  Under section 16(4) of the Act, the Authority orders Mainland Television Limited to pay to the Crown costs in the amount of $500 within one month of the date of this decision. 

2.  Under section 13(1)(a) of the Broadcasting Act 1989, the Authority orders Daystar Television to broadcast a statement. The statement shall:

• be broadcast during a programme similar to Marcus and Joni
• be broadcast at a similar time, and on the same day of the week, as the original broadcast
• be broadcast within one month of the date of this decision
• contain a comprehensive summary of the upheld aspects of the Authority’s decision
• be approved by the Authority prior to being broadcast.

The Authority draws the broadcaster’s attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice to the Authority and the complainant of the manner in which the above orders have been complied with.

3.  Under section 16(4) of the Act, the Authority orders Daystar Television to pay to the Crown costs in the amount of $500 within one month of the date of this decision.

The order for costs is enforceable in the District Court.

Signed for and on behalf of the Authority

Susie Staley
Chair
16 February 2022

Appendix

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

1  Tony Naughton’s complaint to Mainland TV – 31 August 2021

2  Mainland’s response to Naughton – 1 September 2021

3  Naughton’s referral to the Authority – 1 September 2021

4  Mainland’s comments on the referral – 9 September 2021

5  Mainland confirming complaint provided to Daystar – 22 September 2021

6  Mainland’s further comments on jurisdiction – 30 September 2021

7  Daystar’s response to the referral – 6 October 2021

8  Naughton’s final comments – 6 October 2021

9  Mainland’s submissions on the provisional decision – 23 December 2021

10  Daystar’s submissions on orders – 19 January 2022

11  Naughton’s submissions on orders – 5 January 2022

¹ See UJ and Sky Network Television Ltd, Decision No. 2019-030
² See Christoforou and Al Jazeera Media Network, Decision No. 2020-054 at [5]-[8]
³ For this reason the ‘transmission services’ exclusion to the definition of broadcaster does not apply (see Broadcasting Act 1989. Section 2(2))
⁴ Decision No. 2019-030, paragraph [40] and the Pay Television Code, Broadcasting Standards in New Zealand Codebook, page 43
⁵ Oliver Milman “Co-founder of Christian TV network that railed against vaccines dies of Covid-19” The Guardian (online ed, 1 December 2021)
⁶ Standard 9 of the Free-to-Air Television Code of Broadcasting Practice
⁷ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁸ For example, United Fire Brigades’ Association and Radio New Zealand Ltd, Decision No. 2021-038; Right to Life New Zealand and Discovery NZ Ltd, Decision No. 2021-054; End-of-Life Choice Society NZ and MediaWorks TV Ltd, Decision No. 2020-094; End-of-Life Choice Society NZ and Radio New Zealand Ltd, Decision No. 2020-095; Burne-Field and NZME Radio Ltd, Decision No. 2020-040
⁹ Clark & Sallee and APNA Television, Provisional Decision No. 2021-081
¹⁰ Guideline 9a
¹¹ See, for example, Matthew and Television New Zealand Ltd, Decision No. 2019-114 at [21]
¹² See, for example, Ancel and Television New Zealand Ltd, Decision No. 2020-112 at [11]
¹³ Wilson and NZME Radio Ltd, Decision No. 2020-030 at [23]
¹⁴ World Health Organization “WHO Coronavirus (COVID-19) Dashboard” <www.covid19.who.int>
¹⁵ World Health Organization (12 October 2020) “Coronavirus disease (COVID-19)” <www.who.int>
¹⁶ Ministry of Health, NZ (2 November 2021) “COVID-19 Vaccines” <www.health.govt.nz> (see ‘Vaccine effectiveness and protection’ and ‘Side effects and reactions’); Center for Disease Control, USA (20 October 2021) “Different COVID-19 Vaccines” <www.cdc.gov>; National Health Service, UK (1 November 2021) “Coronavirus (COVID-19) vaccines” <www.nhs.uk>
¹⁷ Gabrielle Settles “Report shares wildly unfounded claims on COVID-19 vaccine” Politifact (online ed, 1 October 2021)
¹⁸ Nick Triggle “Covid: How vaccines changed the course of the pandemic” BBC (online ed, 9 December 2021); Nancyy Schimelpfening “COVID-19 Vaccines saved 140,000 lives over first 5 months of 2021” Healthline (online ed, 18 August 2021); “COVID-19 Vaccines Prevented Nearly 140,000 US Deaths” NIH News in Health (online ed, October 2021); Reuters Fact Check “Fact Check-Data shows COVID-19 vaccines have saved thousands of lives; contrary claims have taken a PHE report out of context” Reuters (online ed, 15 July 2021)
¹⁹ Missouri University Healthcare “Scary Reports of Deaths Following COVID-19 Vaccination Aren’t What They Seem” <www.muhealth.org>
²⁰ Health Feedback “Unvaccinated individuals now account for the vast majority of COVID-19 hospitalizations and deaths in the U.S., according to available data” (7 July 2021) <www.healthfeedback.org>
²¹ Beatrice Dupuy “No evidence COVID-19 vaccines lead to autoimmune disease” AP News (online ed, 6 January 2021)
²² “Understanding COVID-19 mRNA Vaccines” NIH National Human Genome Research Institute <www.genome.gov>
²³ Reuters Fact Check “Fact Check-COVID-19 vaccines do not contain graphene oxide” Reuters (online ed, 24 July 2021)
²⁴ World Health Organisation (11 June 2021) “Statement for healthcare professionals: How COVID-19 vaccines are regulated for safety and effectiveness”
²⁵ Julian Borger “Covid bioweapon claims ‘scientifically invalid’, US intelligence reports”  The Guardian, (online ed, Washington 29 October 2021)
²⁶ The British Medical Journal “Covid-19: WHO says laboratory escape theory is ‘extremely unlikely’ after mission to China” (“All the work that has been done on the virus and trying to identify its origin continues to point toward a natural reservoir” Peter Ben Embarek)
²⁷ Ministry of Health, NZ (2 November 2021) “COVID-19 Vaccines” <www.health.govt.nz> (see ‘Vaccine effectiveness and protection’ and ‘Side effects and reactions’); Center for Disease Control, USA (20 October 2021) “Different COVID-19 Vaccines” <www.cdc.gov>; National Health Service, UK (1 November 2021) “Coronavirus (COVID-19) vaccines” <www.nhs.uk>
²⁸ Robert H Shmerling “Do vitamin D, zinc, and other supplements help prevent COVID-19 or hasten healing?” Harvard Health Publishing (online ed, 5 April 2021)
²⁹ American Academy of Dermatology “Can sunlight kill the coronavirus?” <www.aad.org>
³⁰ Travis Andrews “Facebook and other companies are removing viral ‘Plandemic’ conspiracy video” Washington Post (online ed, 7 May 2020)
³¹ Martin Enserink, Jon Cohen "Fact-checking Judy Mikovits, the controversial virologist attacking Anthony Fauci in a viral conspiracy video" Science.org (8 May 2020); Stuart Neil and Edward Campbell “Fake Science: XMRV, COVID-19, and the Toxic Legacy of Dr. Judy Mikovits” (2020) 36 Aids Research and Human Retroviruses 545; ABC/Reuters “Millions view viral Plandemic video featuring discredited medical researcher Judy Mikovits” ABC News (online ed, 13 May 2020); Chris McGreal “A disgraced scientist and a viral video: how a Covid conspiracy theory started” The Guardian (online ed, 14 May 2020); Reuters “Fact check: Unfounded claim that 50 million Americans would die from COVID-19 vaccine” (online ed, 24 June 2020)
³² Bill McCarthy “Debunking the anti-vaccine hoax about ‘vaccine shedding’” Politifact (6 May 2021); and Tyler Pager “‘Monkey, Rat and Pig DNA’: How Misinformation Is Driving the Measles Outbreak Among Ultra-Orthodox Jews” New York Times (online ed, 9 April 2019)
³³ JK Trotter “This New York doctor has been publicly urging parents not to vaccinate their children in the midst of a measles outbreak. Why is he still allowed to practice medicine?” The Insider (31 May 2019)
³⁴ See Jonathon Howard and Dorit Rubinstein Reiss “The Anti-Vaccine Movement: A Litany of Fallacy and Error” in Allison Kaufman and James Kaufman Pseudoscience: The Conspiracy Against Science (The MIT Press, Cambridge, Massachusetts, 2018) 195 at 203–206; and Jaclyn Jeffrey-Wilensky “Cake, Coffee, and Misinformation: Inside an Anti-Vaxxer Meeting” The Daily Beast (online ed, 14 May 2019); Andy Nguyen " The COVID-19 vaccines do not contain aluminum” Politifact (22 March 2021)
³⁵ Bill McCarthy “Debunking the anti-vaccine hoax about ‘vaccine shedding’” Politifact (6 May 2021)
³⁶ Donald and Television New Zealand Ltd, Decision No. 2021-033
³⁷ Guide to the BSA Complaints Process for Television and Radio Programmes, Broadcasting Standards in New Zealand Codebook, page 60
³⁸ See Clark & Sallee and Apna Television Ltd, Decision No. 2021-081