BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority did not uphold a complaint about an item on 1News discussing the Government’s announcement of a new funding package for Pharmac, which included ‘up to seven’ of the 13 cancer drugs earlier promised by the National Party. The item’s introduction questioned, ‘Where does that leave the remaining six cancer-fighting drugs National pledged?’ The complaint was that the item was inaccurate, unfair and biased, by failing to mention that the Government had committed to replacing the remaining six drugs with ‘alternatives just as good or better’ (which other news outlets had reported). The Authority agreed the item was misleading by omission, by not specifically answering the question of what happened to ‘the remaining six’ drugs – which was a material point and carried public interest, in particular for those counting on receiving the promised medicines. However, the Authority concluded the potential harm caused by the omission was not sufficient to justify regulatory intervention, viewing the item as a whole and given the online version of the story (and other media) reported the relevant statement from the press release. The Authority found no breach of the balance or fairness standards.

Not Upheld: Accuracy, Balance, Fairness

The broadcast

[1]  An item on 1News on 24 June 2024 discussed the Government’s policy announcement regarding additional funding for Pharmac for new cancer treatments.¹ The segment was introduced as follows:

‘We’re providing better access to more medicines.’ That from Health Minister Shane Reti today as the Government’s confirmed there’ll be extra funding for drug-buying agency Pharmac. After initially costing the policy at $280 million dollars over four years, that’s now been raised to more than $600 million dollars. Pharmac estimates around 175,000 people will benefit from additional treatments in just the first year. And of the 13 promised cancer drugs, up to seven are included in today’s package. So where does that leave the remaining six cancer-fighting drugs National pledged?

[2]  An interview followed with a cancer patient who had voted for National on the basis they were going to fund his cancer medication. The reporter said:

When last month’s budget came out, he felt that promise was broken. Now it’s back on but [he] will have to wait a few more months, continuing to fund his $11,000-a-month treatment through Givealittle… Today the Government making amends and adding more.

[3]  A clip of Prime Minister Christopher Luxon discussing the policy followed:

Luxon: Through an unprecedented boost for Pharmac’s medicine budget of $604 million dollars over four years, 26 cancer treatments will be made available for Kiwis who need them as part of an overall package of up to 54 new medicines, benefiting 175,000 people.

Reporter: The Government’s calling it a transformative investment in the drug-buying agency. Advocates agree.

[4]  Two advocates for cancer patients were shown giving their reactions to the policy announcement:

Malcolm Mulholland (Patient Voice Aotearoa): Out of the chaos has come good. I think that this is fantastic news for patients. I can’t see there being any devil in the detail. I think it’s pretty straightforward. The Government are going to fund these drugs.

Dr Chris Jackson (oncologist): It’s the single largest investment in cancer medicines which has been made since Pharmac was invented. So it is truly an historic level of investment.

Reporter: Seven of the 13 drugs National promised will now get funding. That’s for liver, kidney, bowel, lung and bladder cancer.

Jackson: It’s clear that New Zealand has been behind the rest of the world when it comes to accessing cancer meds and this is a big, big boost. This will hopefully bring us up on par with Australia within a couple of years.

[5]  The item also included comment from Labour Party leader Chris Hipkins (who criticised the delay) and a cancer patient who was waiting to access the publicly funded drugs.

The complaint

[6]  Graham Powell complained that the broadcast breached the accuracy, balance and fairness standards of the Code of Broadcasting Standards in New Zealand:

• This was a ‘biased story’ which twice mentioned that only seven of the 13 promised cancer drugs would be funded, but ‘on no occasion [clarified] that alternative or better drugs are being funded in the place of the other promised medicines’.
• ‘Other more professional news broadcasters ensured that this clarification was made. Accordingly the story was not accurate or fair, and in all likelihood this was based on bias.’

The broadcaster’s response

[7]  TVNZ did not uphold Powell’s complaint for the following reasons:

• ‘The story accurately summarised the substance of the Government’s Pharmac funding announcement, in relation to cancer drugs. The story explained to viewers that seven new treatments were included in the funding package with a further six pending (but not yet funded), and that these new treatments would be part of Pharmac’s funding of up to twenty-six cancer treatments’.
• ‘The story amply met the [balance] Standard by presenting a range of significant viewpoints… the story contained comment from Christopher Luxon, Chris Hipkins, Malcolm Mulholland of Patient Voice Aotearoa, oncologist Dr Chris Jackson, [and a] cancer patient… as well as analysis from the reporter’.
• ‘The story contained some minor criticisms of the Government, but these were well within what would reasonably be expected of a story scrutinising Government policy. It should be noted that the Government’s perspective was included in the story, with a comment from Christopher Luxon’.

The standards

[8]  The purpose of the accuracy standard² is to protect the public from being significantly misinformed.³ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact and does not mislead. Where a material error of fact has occurred, broadcasters should correct it within a reasonable period after they have been put on notice.

[9]  The balance standard⁴ states that when controversial issues of public importance are discussed in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant viewpoints either in the same broadcast or in other broadcasts within the period of current interest unless the audience can reasonably be expected to be aware of significant viewpoints from other media coverage.

[10]  The fairness standard⁵ ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage to their dignity or reputation.⁶

Our analysis

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

[12]  As a starting point, we considered the right to freedom of expression. It is our role to weigh up the right to freedom of expression, including the value and public interest in the broadcast, against any harm potentially caused by the broadcast. We may only intervene and uphold a complaint where there is actual or potential harm at a level that justifies placing a reasonable limit on the right to freedom of expression.⁷

Accuracy

[13]  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 the broadcaster made reasonable efforts to ensure that the programme was accurate and did not mislead.

[14]  The first question for the Authority is whether or not the item was misleading in the manner alleged in the complaint – by failing to clarify the Government had committed to replacing the remaining six cancer drugs earlier promised, with ‘alternatives just as good or better’.

[15]  To ‘mislead’ in the context of the accuracy standard means ‘to give another a wrong idea or impression of the facts’.⁸ The standard is concerned only with material inaccuracies or materially misleading points. Technical or other points that are unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.⁹

[16]  The press release issued by the Government stated [our emphasis]:

Of the 13 cancer treatments listed in 2023, up to seven will be included in the package announced today, and the others will be replaced by alternatives just as good or better… This announcement will allow Pharmac to fund up to 26 cancer treatments and 28 other treatments. This will be a mix of new medicines and widened access to medicines that are already available.

[17]  We do not accept the broadcaster’s submission (paragraph [7] above) that the story ‘explained to viewers that seven new treatments were included in the funding package with a further six pending (but not yet funded)’. On the contrary, the question of what had happened to ‘the remaining six’ drugs was explicitly highlighted in the introduction, before repeating the statement in the body of the item, that seven of the 13 promised drugs were included in the new funding package. The question of what had happened to the other six was not explicitly answered. This was a material point that carried public interest, particularly for those people who – like the patient interviewed for the item – had voted for National based on its earlier election promise to fund those treatments, and who after release of the Government budget had been left feeling National had broken that promise. As noted by the complainant, other media outlets reported the rest of the statement from the press release, that the remaining six promised drugs would be replaced by ‘alternatives just as good or better’.¹⁰

[18]  In these circumstances, we find the broadcaster did not make reasonable efforts to ensure the item was not misleading by omission.

[19]  We must then consider whether this omission caused actual or potential harm at a level sufficient to justify regulatory intervention and restricting the broadcaster’s right to freedom of expression.

[20]  We understand the harm alleged in the complaint is that by omitting this clarifying detail from the press release, 1News’ presentation of the story was biased, inaccurate, and unfair.

[21]  While we agree with the complainant that the item omitted a material point, we concluded the potential harm was minimal, and no further intervention is required, taking into account:

• The overall impression created by the broadcast was that the National Government had made an historic investment into cancer medications which was being praised by patient advocates, and that 26 new cancer treatments would be funded as a result. It included comments that the promise to fund cancer treatments, which was made before the election, was ‘back on’, with the Government ‘adding more [treatments]’.
• The online version of the 1News story reported that the six remaining drugs will ‘be replaced by alternatives just as good or better’.¹¹
• This was also reported in other, widespread coverage of the announcement – meaning information about what was happening to ‘the remaining six’ drugs was readily available.

[22]  Accordingly, we do not uphold the accuracy complaint.

Remaining standards

[23]  We are satisfied the balance and fairness standards either did not apply or were not breached, for the following reasons:

• Balance: The balance standard is concerned with ensuring significant alternative viewpoints are presented on controversial issues. The complaint was focused on the omission of information / a specific aspect of the Government press release, which the complainant considered was inaccurate and misleading, and ‘biased’ – rather than suggesting a particular viewpoint was missing.¹² The balance standard is not concerned with ‘bias’ in and of itself.¹³ We have addressed the complainant’s concerns around the omission under the accuracy standard above.
• Fairness: As above, the focus of the complaint was the omission of particular information, which the complainant considered was ‘not accurate or fair’. The fairness standard requires broadcasters to deal fairly with any individual or organisation referred to in a broadcast; it is not directed at addressing whether facts are ‘fairly’ or misleadingly conveyed (which is better addressed under the accuracy standard, dealt with above).¹⁴ To the extent the complaint could possibly be read as alleging the broadcast was unfair to the Government, it is well established there is a high threshold for finding a breach of the fairness standard in relation to public figures or politicians familiar with dealing with the media.¹⁵ The item presented the Government announcement favourably overall, and for reasons already outlined we are satisfied the item did not give rise to any unfairness.

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

Susie Staley
Chair
12 November 2024    

Appendix

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

1  Graham Powell’s formal complaint – 25 June 2024

2  TVNZ’s response to the complaint – 23 July 2024

3  Powell’s referral to the Authority – 30 July 2024

4  TVNZ’s confirmation of no further comment – 13 August 2024

¹ Beehive Press Release “Transformative investment in cancer treatments and new medicines” Beehive (online ed, 24 June 2024)
² Standard 6, Code of Broadcasting Standards in New Zealand 
³ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
⁴ Standard 5, Code of Broadcasting Standards in New Zealand
⁵ Standard 8, Code of Broadcasting Standards in New Zealand
⁶ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand, page 20
⁷ Introduction, Code of Broadcasting Standards in New Zealand at page 4
⁸ Attorney General of Samoa v TVWorks Ltd [2012] NZHC 131, [2012] NZAR 407 at [98]
⁹ Guideline 6.2
¹⁰ Molly Swift “Cancer U-turn: Coalition mends National’s broken promise with 54 new drugs funded” Newshub (online ed, 24 June 2024), Chelsea Daniels “Government’s Pharmac funding foreshadowing could have cost New Zealand – The Front Page” The New Zealand Herald (online ed, 26 June 2024), Jenna Lynch “How the Government’s funding of 54 new drugs will work and who misses out” Newshub (online ed, 24 June 2024), Anna Whyte, Rachel Thomas and Justin Wong “$600m boost to Pharmac to fund 26 cancer treatments” The Post (online ed, 24 June 2024), Adam Pearse “Prime Minister Christopher Luxon reveals future of Pharmac cancer drugs promise at post-Cabinet press conference” The New Zealand Herald (online ed, 24 June 2024),
¹¹ Felix Desmarais “National’s promises cancer treatments: ‘Up to 7’ funded, 6 replaced” 1News (online ed, 24 June 2024)
¹² See Hart and Radio New Zealand Ltd, Decision No. 2024-002 at [8] for a similar finding.
¹³ See Chapel, Garbutt & Hopcroft and Television New Zealand Ltd, Decision No. 2024-042 at [20] and Neal and Television New Zealand Ltd, Decision No. 2024-055 at [16]
¹⁴ See Higgins and Television New Zealand Ltd, Decision No. 2023-002 at [17] and Chapman and Television New Zealand Ltd, Decision No. 2022-108 at [24] for similar findings.
¹⁵ Guideline 8.1