BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

The Authority has upheld a complaint that two episodes of The Box Seat breached the accuracy and balance standards of the Pay TV Code of Broadcasting Standards. The Authority found that the segments about blood spinning in harness racing covered a controversial issue of public importance but failed to include balancing views on the issue being discussed or indicate that the programmes were presented from a specific perspective. The Authority also found that, although the broadcasts did not contain any specific factual inaccuracies, the omission of alternative perspectives and information on the safety and propriety of blood spinning meant that the broadcast was misleading as a whole. The Authority did not uphold the complaint under the fairness standard. The Authority considered the publication of this decision sufficient to censure the breach of standards by the broadcaster and made no orders.

Upheld: Balance, Accuracy. Not upheld: Fairness. No orders

The broadcast

[1]  Two episodes of The Box Seat included a two-part segment looking at blood spinning in harness horse racing (harness racing), in which presenter Greg O’Connor set out to explain the practice, its purpose and legality. The segments included interviews with vets Bill Bishop and Dr Lindsay Colwell, and Nick Ydgren from the Racing Integrity Unit (RIU).

[2]  The items were broadcast on 8 and 15 May 2019. As part of our consideration of this complaint, we have listened to recordings of the broadcasts and read the correspondence listed in the Appendix.

Background

[3]   ‘Blood spinning’ is a medical procedure used in harness racing (amongst other types of animal racing). We understand that it involves taking small samples of the horse’s blood, which is then spun in a centrifuge to create an extract such as Platelet Rich Plasma (PRP) or Interleukin-1 Receptor Antagonist Protein (IRAP). This can then be injected back into the horse to encourage regeneration of injured or degenerative tissue.¹

[4]  In November 2019, after the relevant broadcasts, Harness Racing New Zealand (HRNZ), the administrative body in charge of regulating harness racing, increased restrictions on the use of blood spinning.²

[5]  The broadcaster, the Racing Industry Transition Agency³ (RITA) operates and manages TAB and the Trackside channels (available via SKY and the TAB website).⁴

[6]  The Authority determined in an interlocutory decision that it has jurisdiction to consider complaints about a programme that has been simultaneously broadcast on television and streamed on the internet (simulcasts), such as The Kick Off. The Authority determined that the complaint should be considered under the Pay Television Code.⁵

The complaint

[7]  David Phillips provided extensive submissions arguing that the broadcasts breached the balance, accuracy and fairness standards of the Pay Television Code of Broadcasting Practice. Many of his submissions were more general criticisms of the racing industry and the practice of blood spinning generally and are not relevant to the broadcasting standards raised.

[8]   Mr Phillips made additional submissions to the Authority in the period shortly before the Authority’s decision on his complaint (including notifying the Authority of the HRNZ rule changes regarding blood spinning).  These were accepted and considered as relevant to the original complaint.⁶  However, we did not accept further additional submissions received from Mr Phillips on the weekend before the meeting at which the Authority was scheduled to consider the complaint as we considered we had sufficient information to understand and consider the complaint regarding the broadcast’s alleged breach of standards.

[9]  We have summarised what we consider to be the primary points of Mr Phillips’ submissions below.

Balance

• The interviewees chosen had a vested interested in promoting blood-spinning, so there was a lack of balance.
• To achieve balance, the broadcast should have included views from those opposed to blood-spinning.
• The programme did not cover the Messara report which found ‘disfavour with some practices and/or structure of each of the RIU and the NZRB’.
• To achieve balance, the programme should have explained:
  • why RITA and the RIU support blood spinning
  • how they and the racing industry they control benefit from it
  • how racing industry participants, bettors and gamblers benefit from it.

Accuracy

• A number of points in the broadcasts were incorrect or misleading.
• The broadcast omitted other information, leaving audiences misinformed.
• Most notably, HRNZ’s recent change to blood spinning rules indicates that the programme presented an inaccurate picture of the safety and legality of blood spinning.

Fairness

• The programme was unfair to all NZ equine trainers who do not use blood spinning and all NZ equine vets other than the three it named.
• It was unfair because it referred to one NZ laboratory without indicating whether there were others or no others.
• To be fair, the program should have named the 120 horses who have used spun blood in recent periods; and/or if not able to name them, then at the very least have identified the time period it referred to for the 120 horses’ use and the race track performances of those horses vis a vis the balance of the horse population. It should also have identified how many horses have raced in the same period without using it, and their relative successes.
• The programme did not identify links between All Stars and Equine Blood solutions, interview their directors or owners, address the possible conflict of interests there or identify Dr Colwell’s connection to the stables.

The broadcaster’s response

[10]  RITA did not uphold the complaint for the following reasons:

Balance

• Reasonable effort was made to present significant points of view.
• While Mr Bishop provided a favourable view of blood spinning, he is a respected professional with many years’ experience and ‘possesses a high level of expertise and knowledge’.
• Nick Ydgren provided the views of the Racing Integrity Unit which manages integrity issues within NZ racing and monitors possible breaches of the rules. Mr Ydgren provided the views of the RIU regarding how blood spinning fits within the rules of racing.
• The questions put to Mr Ydgren were not in breach of balance, as Mr Ydgren ‘is a qualified professional who was entitled to answer the questions in any manner he saw fit.’ He provided ‘what RITA considers are factual views as regards whether the practice of blood spinning complies with the relevant rules of racing.’
• ‘Most observers watching the segment would believe that Mr Ydgren was presenting his own views and the views of the Racing Integrity Unit, and that his answers were not influenced by the line of questioning as it was put to him.’
• Mr Ydgren is an employee of the RIU, not RITA. ‘RITA does not control the views or messaging expressed by the RIU, nor does the RIU speak on behalf of RITA.’

Accuracy

• The programmes were accurate in relation to all material points of fact and were not misleading.
• ‘Portions of the Programmes are clearly distinguishable as analysis, comment, or opinion.’
• Reasonable efforts were made to ensure accuracy by sourcing material from reputable organisations and experts, seeking comment, clarification and input from them and considering whether there was an obvious reason to question the accuracy of the programme.

Fairness

• All participants in the programme were dealt with fairly and provided full informed consent.

The relevant standards

[11]  The balance standard (Standard 8) 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.

[12]  The accuracy standard (Standard 9) 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 purpose of this standard is to protect the public from being significantly misinformed.⁷

[13]  The fairness standard (Standard 11) states that broadcasters should deal fairly with any person or organisation taking part or referred to in any broadcast. Its purpose is to protect the dignity and reputation of those featured in programmes.⁸

Our findings

[14]  The starting point of our consideration of this complaint is to recognise the high value which we place on the right to freedom of expression. The right to freedom of expression, includes the broadcaster’s right to impart ideas and information and the public’s right to receive that information. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only interfere and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

[15]  Our role is to determine complaints in relation to broadcasting standards. Section 5(c) of the Broadcasting Act 1989 recognises that complaints based merely on personal preference (such as who should be interviewed⁹) are not capable of being resolved by this complaints procedure. Provided broadcasting standards are observed, the way that broadcasters choose to convey information on a particular topic is a matter for their own editorial discretion. Much of Mr Phillips’ submissions fell into this category as he provided detailed descriptions of what he considered should have been broadcast and who should have been interviewed. However, where the submissions identified balancing information that could have been included in the item, this has been taken into account.

The broadcaster’s knowledge

[16]  Before considering how each of the standards applied, we discussed whether the broadcaster’s position in the racing industry meant that it should be held to a higher standard with regard to the level of accuracy and balance achieved in factual programmes concerning that industry.

[17]  We all agreed that as a broadcaster RITA should be held to the same standard as other broadcasters, consistent with principles of natural justice. However, in our consideration of the complaint, we took into account the level of knowledge that RITA can reasonably be expected to have in relation to the racing industry, and specifically harness racing.

Balance

[18]  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’.¹⁰

[19]  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’.¹¹  A controversial issue is one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.¹²

Blood spinning in harness racing is an issue of public importance

[20]  We consider that as New Zealand is an enthusiastic sporting nation, matters potentially associated with the conferring of unfair advantage to particular competitors are likely to be of significant concern to New Zealanders. There is also a broader public interest in integrity issues and the treatment of animals.

[21]  We are also conscious that horse racing contributes to New Zealand’s economy and employment levels, given its popularity in this country.  It has a substantial impact on the New Zealand economy (approximately $1.6bn in 2016/17 of which approximately $442m was derived from harness racing).¹³ The public impact of horse racing is great enough for New Zealand to have a Minister for Racing.¹⁴

[22]  Further, rules related to blood spinning and doping in harness racing have recently been under review by Harness Racing New Zealand¹⁵ and, as noted in the background section above, have now been amended to be more restrictive on the practice of blood spinning. In light of all of these factors we consider that the programme addressed an issue of public importance.

Blood spinning is a controversial issue

[23]  We also found that a discussion of blood spinning in harness racing amounted to a controversial issue because there were conflicting views regarding the practice and it had some topical currency given the then pending rules change. Some were in favour of this practice (seeing it as a therapeutic treatment to aid in the healing of injuries) but others (including the complainant) have raised concerns about its effect on animals.¹⁶ The broadcast itself included comment that there was considerable talk in the industry about blood spinning. 

Outcome under balance

[24]  For the above reasons, we have found that the broadcasts dealt with a controversial issue of public importance. As we also consider the issue to have been ‘discussed’ and the relevant broadcasts to constitute a factual programme, the balance standard applies.

[25]  The next consideration therefore is whether the broadcaster made reasonable efforts to present significant points of view either in the same programme or in other programmes within the period of current interest. No set formula can be advanced for the allocation of time to interested parties on controversial issues of public importance.¹⁷

[26]  The assessment of whether a reasonable range of other perspectives has been presented includes consideration of various contextual factors.¹⁸ In this instance, we found that the broadcast lacked balance for the following reasons:

• The broadcast purported to be a thorough investigation of blood spinning (with a closing comment describing it as a piece of ‘investigative journalism’).
• It was presented as a neutral look at blood spinning for the benefit of those who doubted its legality, safety and efficacy.
• Aside from a few brief references to ‘talk in the industry’ or ‘other views’, there was little indication of the nature of any opposing views.
• Viewers would have been left with the impression that blood spinning was an uncontroversial, long-standing, legal and veterinarian approved practice (including when injections are made one clear day before racing). This picture was incomplete in light of other perspectives on the practice.

[27]  Therefore we uphold the complaint under the balance standard.

Accuracy

[28]  With regard to the accuracy standard, while we found that many of the specific inaccuracies alleged by Mr Phillips were not material to the broadcast or were statements of analysis or opinion (to which the accuracy standard does not apply), we found the broadcast was misleading as a whole by virtue of failing to address alternative perspectives, and to provide information that purports to negate the safety and propriety of blood spinning. We expand on our reasoning below.

[29]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.¹⁹ Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’²⁰ Programmes may be misleading by omission.²¹

[30]  The accuracy standard is concerned only with material inaccuracy. For example, technical or unimportant points unlikely to significantly affect the audience’s understanding of the programme as a whole are not material.²² In addition, the requirement for accuracy does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.²³

[31]  Mr Phillips identified a number of points in the broadcasts as incorrect or misleading. We considered each of them in turn and have recorded our findings below:

• Blood spinning is not natural as said in the broadcast, it is an artificial process.

Blood spinning was referred to as ‘natural’ compared to ‘artificial’ in order to distinguish between materials sourced from the horse and manufactured drugs. We do not think that this distinction would mislead viewers to think that the blood material is not processed before being reinjected back into the horse, so this is not a material inaccuracy.

• The broadcast suggested spun blood is not ‘a race day performance enhancer’ but it does enhance the performance of horses.

The distinction was made in the programme between helping a horse reach its full capacity where it may be hindered due to injury or illness compared to drugs which make the horse perform better than its own full capacity. In our view, viewers would not be misled as to what was meant by ‘performance enhancer’ and this is not a material inaccuracy.

• The broadcast asserted the legality of blood spinning and that the World Anti-Doping Agency (WADA) does not ban blood spinning. The complainant identified a number of circumstances in which WADA rules would prohibit blood spinning (eg when the blood is injected by IV back into the horse or when there is intravascular manipulation of the blood).²⁴

While WADA does ban blood spinning in some circumstances, the key point made in the programme was that it is not illegal in New Zealand. Given this we consider that this was an immaterial statement.

• The statement that only a horse’s own blood could be injected back into it is incorrect.

The item was covering a specific process called autologous and in this process only the horse’s own blood can be injected back into it. Mr Phillips provided examples of other types of blood manipulating processes which were not the focus of the item. In our view this was not inaccurate in the context of the issues addressed in the item.

• The statement that blood spinning is not the same as blood doping is incorrect. ‘This differs with some international conclusions. At best, the IOC [International Olympic Committee] and FEI [International Federation for Equestrian Sports] each call blood spinning “blood manipulation”. IOC also has stated in past that all blood manipulation, as well as being banned pre competition is a form of blood doping.’

The distinction between blood doping and blood spinning was made in the programme where blood doping was defined as re-injecting red blood cells, and blood spinning does not involve such a process. By its own definition the programme made a clear distinction and identified what it meant by blood spinning as compared to what is illegal, blood doping. Viewers therefore would not have been misled by this distinction.

• The statement ‘well done mate…some nice investigative journalism’, when the process used by Mr O’Connor was ‘far from unbiased and was not balanced investigative journalism’

This was a statement of opinion and not subject to the accuracy standard.

• ‘Mr Guerin stated he did not have a personal position on blood spinning; but he then went on to influence viewers by adding words to the effect that: “ if vets who know all about this stuff reckon its fine, then its fine”. Then Mr O’Connor added words to the effect that: “and that’s both vets we have on this and Andrew Grierson who heads up the HRNZ team…”’

This was a statement of opinion and analysis on the preceding comments and not subject to the accuracy standard.

• The statistic that 120 horses with 25 different trainers use blood spinning was given out of context, with no time period or source given for the stats.

This point was not material to viewers’ overall understanding of the programme, which was showing what blood spinning is and why it is allowed in New Zealand.

[32]  Mr Phillips also argued that the omission of certain information made the programmes misleading. Much of this was an expression of his own personal views as to what the broadcast should have covered, and went into technical or investigative detail beyond the broadcast. As noted at paragraph [15], such matters are not capable of being resolved by this complaints procedure.  

[33]  However, we have found the broadcast was misleading as a whole by virtue of failing to address alternative perspectives and information that challenge the safety and propriety of blood spinning. It is not the role of the Authority to conduct an in-depth examination of factual matters relating to blood spinning and equine veterinary practices.  However, as noted in connection with the analysis under the balance standard, we consider viewers would have been left with the impression that blood spinning was an uncontroversial, long-standing, legal and veterinarian approved practice (including when injections are made one clear day before racing).  This picture was misleading in light of other available information and perspectives on the practice.

[34]  The misleading nature of the omission is more obvious when it is noted that, not long after this broadcast, HRNZ changed the rules to more substantially restrict blood spinning. While we accept that the broadcaster must be assessed based on information available to it at the time, for new rules to have been issued so soon after the broadcast, we can reasonably assume there had been ongoing discussion in the sector regarding issues of blood spinning leading up to the rule change (and that RITA was likely to have been aware of such discussion).  Even if the broadcaster was unaware of the pending rules review, as noted in our analysis under the balance standard, at the very least it was aware there were ‘other views’ on the practice and that there was considerable discussion regarding blood spinning in the industry (as this was noted briefly in the broadcast itself).

[35]  In light of these circumstances, having found the broadcast misleading as a whole due to its failure to address alternative perspectives, and provide information relating to those perspectives, we also find that the broadcaster did not make reasonable efforts to ensure the broadcast did not mislead.

[36]  Therefore we uphold the complaint under the accuracy standard.

Fairness

[37]  As described above, the fairness standard is intended to protect the dignity and reputation of persons and organisations featured in programmes. The complainant has not identified any person or organisation who he considers to have been treated unfairly in the programme.

[38]  Therefore the fairness standard does not apply and we do not uphold the complaint under this standard.

For the above reasons the Authority upholds the complaints that the broadcasts by the Racing Industry Transition Agency of The Box Seat on 8 and 15 May 2019 breached Standards 8 and 9 of the Pay TV Code of Broadcasting Practice.

[39]  We have considered whether we should make orders in this case. We do not intend to do so on this occasion. The broadcaster has not had any other complaints raised against it and participated willingly in the process.

[40]  We consider that publication of this decision is sufficient to publicly notify the breach of the balance and accuracy standards, and to censure the broadcaster. The decision also provides guidance on the application of the balance and accuracy standards and the level of care that is required to ensure competing viewpoints are adequately represented, and highlights that the omission of information can have the effect of misleading audiences.

[41]  In these circumstances we do not consider any further order against the broadcaster is necessary to respond to the breach.

Signed for and on behalf of the Authority

Judge Bill Hastings

Chair
22 January 2020

Appendix

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

1                 David Phillips’ complaint to RITA – 22 May 2019

2                 Mr Phillips’ further email to RITA – 24 May 2019

3                 RITA’s decision – 20 June 2019

4                 Mr Phillips’ referral to the BSA – 28 June 2019

5                 Mr Phillips’ submissions attached to BSA referral – 29 June 2019

6                 Mr Phillips’ further comments – 6 July 2019

7                 RITA’s comments – 2 October 2019

8                 Mr Phillips’ further comments – 12 October 2019

9                 Mr Phillips’ further comments – 29 November 2019

10              RITA’s further comments – 5 December 2019

11              Mr Phillips’ further comments – 6 December 2019

12              RITA’s final comments in response to Mr Phillip’s email of 6 December 2019 – 9 December 2019

The Authority declined to consider the following correspondence:

1            Mr Phillips’ email – 7 December 2019

¹ ‘Regenerative medicine for horses progressing in leaps and bounds’ (Horsetalk, 21 March 2018)
² See new HRNZ Rules 1004 to 1004O, in particular 1004G and 1004K
³ Formerly the New Zealand Racing Board
⁴ See <https://www.rita.org.nz/about-us>
⁵ Phillips and Racing Industry Transition Agency, Decision No. ID2019-044
⁶ Broadcasting Act 1989, Section 10(1)(b)
⁷ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
⁸ Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
⁹ Golden and Radio New Zealand Ltd, Decision No. 2018-097 at [7]
¹⁰ Guideline 8a
¹¹ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
¹² As above
¹³ See ‘Size and Scope of the New Zealand Racing Industry’ (RITA, February 2018)
¹⁴ See <https://dpmc.govt.nz/cabinet/portfolios/racing>
¹⁵ ‘Plan to Change to Blood Spinning Rules’ (Otago Daily Times, 13 October 2019)
¹⁶ ‘Plan to Change to Blood Spinning Rules’ (Otago Daily Times, 13 October 2019); ‘box seat, debate on blood spinning’ (RaceCafe.co.nz, 2 May 2019); ‘Blood doping?’ (Bit of a Yarn, 18 June 2018); Carabella gets 'Platelet Rich Plasma' therapy (Harnesslink, 19 March 2012)
¹⁷ Guideline 8b
¹⁸ Guideline 8d
¹⁹ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
²⁰ Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
²¹ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
²² Guideline 9b
²³ Guideline 9a
²⁴ All such circumstances are outlined in the WADA May 2019 rules (see ‘Manipulation of Blood and Blood Components’ – WADA)