BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

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

3D reported on the cervical cancer vaccine Gardasil, and the stories of several girls and their families who believed that they had suffered serious health problems after being vaccinated. It also reported on the as-yet-unexplained sudden deaths of two girls who had recently received the vaccine. The Authority did not uphold a complaint from the maker of Gardasil alleging that the programme misleadingly suggested that Gardasil was unsafe and thus deceived and disadvantaged the public when there was no evidential basis for doing so. The story was well-reported, was measured in its presentation and gave viewers a range of information, which enabled them to make up their own minds about the vaccine. The Authority emphasised the high public interest in the story and in giving a platform for minority voices to be heard.

Not Upheld: Accuracy, Responsible Programming

Introduction

[1]  3D reported on the cervical cancer vaccine Gardasil, and the stories of several girls and their families who believed that they had suffered serious health problems after being vaccinated. It also reported on the as-yet-unexplained sudden deaths of two girls who had recently received the vaccine. The item was entitled, ‘Cause or Coincidence?’

[2]  Seqirus, Gardasil’s maker, complained that the item misleadingly gave the impression that Gardasil was unsafe, despite the lack of any medical evidence to support that contention, and thus that public confidence in the vaccine would be undermined ‘when there is no valid evidential basis to do so’.

[3]  The issue is whether the broadcast breached the accuracy and responsible programming standards of the Free-to-Air Television Code of Broadcasting Practice.¹

[4]  The item was broadcast on 9 November 2015 on TV3. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

The programme

[5]  The item was introduced by the presenter as follows:

Tonight, the vaccination to help prevent cervical cancer. It’s been on offer here since 2008 and more than 200,000 New Zealand girls have had it. The scientists say it’s safe, but in tonight’s 3D Investigates, Paula Penfold hears from girls, and their families, who have serious doubts. They want to know whether Gardasil is to blame for what’s happened to them. In two cases, that was sudden, unexplained death, and others, crippling illness. Are these families right to be concerned, or is science on the vaccine’s side?

[6]  The reporter introduced four teenage girls, and they discussed their symptoms, such as chest and joint pain. The reporter’s interactions with the girls all took place separately, and were edited together in the programme. The reporter asked one of the girls, ‘What do you think is the cause of all this?’ She, and three of the other girls, separately responded, ‘Gardasil’.

[7]  The reporter asked one of the girls, ‘Why?’ She replied, ‘Because I was a healthy child before this’. One girl replied, ‘Every time I had a shot, it got worse’. Another girl said, ‘Food allergies, and then all the other symptoms just followed’. The girls all further discussed their symptoms.

[8]  The reporter said to one of the girls, ‘It’s a big list of symptoms’ and then had the following exchange with another of the girls:

Reporter: Could it be a coincidence?

Girl: I don’t think so.

Reporter: But it’s tough to make that conclusion, isn’t it? Because there’s no scientific evidence.

[9]  Another girl said:

I think it’s really hard, because no one can prove it, but I don’t think it is a coincidence that there’s all these girls with all the same symptoms as me. Not just in New Zealand, but all around the world. I think it might have been the trigger to what I have.

[10]  In a voiceover, the reporter explained:

Gardasil was first approved by the FDA in 2006 and has been available in New Zealand for seven years – mostly given through schools to girls in Year 8, costing around $8.7 million a year. And there’s no argument that what Gardasil aims to counter is a serious disease. [Human Papilloma Virus (HPV)] may eventually lead to cervical cancer, which kills about 50 New Zealand women a year. And of the 200,000 women and girls who’ve had Gardasil here so far, for the vast majority there have been no problems. But there have been 478 cases of adverse reactions considered to be related to Gardasil. The doctors for these girls can’t tell them the cause of their illnesses. What is clear is that their lives have been drastically changed.

[11]  The reporter then talked to the girls about the challenges of their daily lives, such as going from being fit, active, and healthy to being confined to a wheelchair. She then said:

The symptoms and concerns are not just being raised here – they’re being echoed internationally, most recently in this Danish documentary.

[12]  An excerpt of the documentary was then shown, with girls talking about their symptoms (subtitled), such as joint pain and feeling faint. The reporter then said, ‘And just last month in the Irish Parliament, this from an opposition Senator’, and showed footage of the Senator saying:

What I have got here are testimonials, from young girls between 12 and 17 across Ireland, who have been confined to their beds, all because of this vaccination. This is an appalling vista. I couldn’t believe what I was listening to. And the more I’ve delved into this, the more I believe that it is a national disgrace.

[13]  In a voiceover, the reporter then said:

But is there any scientific evidence? Well, yes. There’s screeds of research used by both sides to back up their positions. The latest is from the European Medicines Agency [EMA], which on Friday reported back the results of a major safety review, concluding that the two reported side effects it was investigating are not caused by Gardasil; that they would occur at the same rate without the vaccination. So the official position here is that the benefit outweighs any risks, which the parents of all of the girls we spoke to accepted. None had any qualms about signing the consent form. None are what you’d call anti-immunisation.

[14]  The reporter then talked to three of the mothers of the girls featured, and they all said that their daughters had received all recommended vaccinations and that they were not ‘anti-vaccination’. One mother said:

I have actually had cervical cancer myself. And to this day I kick myself because I signed [the consent form], and if I’d known half of what I know now, I would never have gone near it.

[15]  The reporter in a voiceover said:

But could it be worse than claimed side effects? Internationally, there are concerns Gardasil could be linked with deaths, and now that concern is being raised here too.

[16]  The reporter then discussed the case of one girl (B) who was described as a ‘pretty typical teenager’ who had died suddenly in her sleep. An autopsy had been held, ‘but no obvious cause of death was found’. The reporter asked B’s parents, ‘So what explanation do you have?’ B’s father replied:

Well it’s down as ‘unknown natural causes’, I guess, is what’s written on the final report. But it is pretty unusual when what we call a pretty normal 16-year-old girl does go to bed and doesn’t wake up in the morning.

[17]  In a voiceover, the reporter said:

And so [B]’s death, as you would expect, was referred to the Coroner. But the Coroner decided not to hold an inquest, saying he’s satisfied she died of natural causes. So what could cause a 16-year-old girl to die in her sleep? Well here’s something worth exploring, you’d think – [B] had had a Gardasil injection that day.

[18]  The reporter discussed with B’s parents that she had received the Gardasil injection that morning, and then in a voiceover the host said:

The medical reports after [B]’s death state the vaccine is ‘well-tolerated’, and that anaphylaxis and acute allergic reaction, which has been reported in about three cases per million, wasn’t detected at post-mortem.

[19]  The reporter had the following conversation with B’s parents:

Mother: It’s hard for me, because she had that medical procedure that day that she died and did nothing else that was different. To just say that it was a coincidence is just hard, but as [my husband] said, how do we find out for sure?

Father: What we can’t say is that the injection that [B] had purely caused her death because there wasn’t testing available to prove that one way or another, but what we can say is we’ve had lots of other tests done, and they’ve all come back as being perfectly normal.

Reporter: What do you think? Do you think Gardasil did have a part to play in your daughter’s death?

Father: I don’t know. I can’t say whether I particularly feel that it did or it didn’t, but it’s certainly one thing that was different that day, compared to any other day.

Reporter: Which leads you to wonder whether or not it’s at least a possibility.

Father: Yes it does. It’s a pretty big thing to get wrong when you get it wrong, isn’t it? I would hate to think that this didn’t go unexplored and that somebody else would be in this position. It’s devastating.

[20]  The reporter in a voiceover said:

As one doctor put it to us, when a normal, healthy girl dies the same day as having a medical procedure – any medical procedure – then it should go without saying that that procedure should be called into question. Without an inquest there’s been no investigation into whether there’s any connection between Gardasil and [B]’s death. It has been reported to the Centre for Adverse Reactions Monitoring [(CARM)], and in information we’ve obtained, it says that it ‘carefully reviews any report of death with vaccines, and that this one will undergo such consideration’. So what’s happened to [B]’s review?

[21]  The reporter then interviewed Dr Stewart Jessamine, the Acting Director of Public Health, as follows:

Doctor: My understanding is that the case has been considered and a decision’s been made as to whether we were able to attribute a vaccination to her or not. We will have classified this case as being either a) in the negative – no we don’t believe it’s associated, or b) unclassifiable, which means we cannot make a determination.

Reporter: So you don’t know which one of those two possibilities it is?

Doctor: I don’t know, but I’m sure we can get you the answer to that question.

Reporter: We would appreciate that answer.

[22]  The reporter was then shown speaking directly to camera, and said:

A week later, the Ministry came back to us and admitted that in the two years since [B] died, that review has never happened. But it also says in the same response that her death was ‘unlikely to have been caused by the HPV vaccination’. But how can that be the conclusion when the promised review never occurred? Which leaves her family in the dreadful position of not only dealing with their loss, but also having no explanation as to what caused it.

[23]  The reporter was then shown speaking to [B]’s parents again:

Reporter: You have a younger daughter. Will she get the Gardasil vaccination?

Mother: No. I can’t take that chance. I don’t know if it was something that’s in [B]’s genetic makeup that maybe reacted to the Gardasil that [her younger sister] has. I just can’t do it.

[24]  The reporter then discussed the case of another girl (K), whose family, the reporter said, ‘is convinced Gardasil is to blame.’ An inquest had been held into K’s death. The reporter said, ‘So what has it found, and what are our health authorities doing about these questions over whether this vaccine they’re promoting is safe?’ In a voiceover, the reporter said:

[K]’s parents say she started to become unwell, mentally and physically, at the end of September 2008, and that coincided with the time she began receiving her Gardasil vaccinations. She had headaches and dizzy spells, nausea and occasional memory loss. She had feet, leg and back pain, and well as aching joints. She was tired all the time, and one night she complained of chest pains and said her heart was racing. Three weeks later, she died in her sleep. As in [B]’s case, the cause of [K]’s death was unascertained, but unlike in [B]’s case, there was an inquest, which we filmed, and at which [K]’s family’s concern that there was a connection to Gardasil was canvassed extensively.

[25]  Footage from the inquest showed Dr Jessamine testifying that it was not possible to ascertain whether K’s death was related to the vaccination. The reporter explained that the provisional finding is that the cause of death is unascertained. The host said, ‘So where does this leave the families who think Gardasil is responsible for their daughters’ illnesses, and possibly, their deaths?’

[26]  The reporter interviewed Dr Jessamine as follows:

Reporter: For those people who believe that Gardasil is the cause of the chronic pain that they’re living with, what do you say to them?

Doctor: That actually the issue is, what do you do next? How do you obtain treatment?

Reporter: Well what do they do next?

Doctor: You seek medical care that is appropriate for your condition.

Reporter: The experience of the families that we’re dealing with is that when they do seek the medical care, if they get a diagnosis that usually takes a while. If they get a diagnosis [and] there’s no cause for the diagnosis given – maybe that’s because there can’t be a cause given. But what they are also universally finding is that the minute they mention Gardasil as just a possibility, they feel as though they’re laughed out of the surgery.

Doctor: Well we’re back into – is there any evidence that this is associated with Gardasil that’s available at this point in time? And the answer is no. The correct response that we would encourage both families and doctors to pursue is that they should report these cases to [CARM].

Reporter: And in the meantime we have this anecdotal evidence of the type that we’re reflecting in this programme where patients and their families are convinced that there is a causal relationship between their vaccination and the symptoms they’re experiencing. So can you reassure them that in 20 years’ time, we won’t look back on the Gardasil vaccination programme and say that was an unfortunate experiment that we put a generation of Kiwi girls through?

Doctor: For me, this is about, what can the family contribute to the totality of knowledge in this area, and so that’s why I’m really going to push again that if they feel their doctor’s not reporting, they should report, because this adds to the totality.

Reporter: Are you confident that in 20 years’ time we won’t look back on this vaccination programme and say, ‘That was a mistake. There were serious side effects that we didn’t know about at the time’?

Doctor: We are now eight, nine years into the vaccination programme, 63 million doses of this vaccine given globally, extensive clinical studies looking at a whole range of issues, which have not picked up any significant issues around an autonomic disease.

Reporter: So when you say ‘significant issues’, is that an acknowledgement that there might be, for a very small minority, there might be problems of the nature that we’re discussing?

Doctor: As I said to you, it is always possible because we can never totally exclude a negative.

[27]  In a voiceover, the reported said:

When you’re in the minority, it’s no comfort that, as a population, the benefits are said to outweigh the risks. These four girls want something proactive to happen about their cases. They want health authorities to look at their lives and take notice.

[28]  The reporter said to the mother of one of the girls, ‘At this point there’s no medical recognition of a causal link between the Gardasil injection and the kinds of symptoms that you’re talking about. There is no link.’ The mother replied, ‘There absolutely is a link. All these girls cannot be wrong. They’re not one in a million.’

[29]  The report concluded by discussing how each of the girls were coping, and the presenter ended the segment saying, ‘Well whatever the cause, it is a very sad situation for those girls.’

Freedom of expression and public interest

[30]  Freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information, is the starting point in our consideration of complaints. We may only interfere and uphold complaints where the limitation on the right would be reasonable and justified in a democratic society.²

[31]  MediaWorks argued that the programme ‘did not set out to challenge... Gardasil’ but ‘focused on the concerns held by families of New Zealand girls suffering from serious illnesses which had come about after receiving HPV vaccinations, and in particular the feeling among these families that their concerns were not being adequately considered by the medical profession’. It said these concerns were ‘legitimate and worthy of investigation’. It considered that 3D was following a ‘model of advocacy journalism, representing minority viewpoints that may otherwise be lost against prevailing public attitudes or the official stances of Commercial and Governmental bodies’. It said it was ‘important that these minority viewpoints are heard and added to public discourse’.

[32]  In our view the public interest value of this broadcast was very high. The Gardasil vaccination programme in schools is publicly funded. It is a vital function of the media, when questions are raised about an aspect of the public health system, to investigate these issues and robustly scrutinise the system. It was legitimate for 3D to investigate the health issues being experienced by the young New Zealand girls interviewed, who had a right to have their stories told. It was also legitimate for 3D to take an advocacy position on behalf of these girls and their families, so long as standards were adhered to. As MediaWorks has pointed out, the programme allowed minority views to be heard which otherwise may not have been afforded such a platform.

[33]  Our task is to weigh the value of the programme against the level of harm alleged to have been caused by the broadcast, in terms of the underlying objectives of the relevant broadcasting standards. Seqirus has argued that, although MediaWorks may intend to ‘represent minority viewpoints’, ‘it has a duty as a responsible broadcaster to ensure that those viewpoints are nevertheless portrayed in a way that, in this case, makes it abundantly clear that they are not supported by any evidence and that there is no credible reason to believe that Gardasil is anything other than safe.’ The harm alleged to have been caused by the broadcaster not fulfilling this duty, is that public confidence in the vaccine has been undermined.

[34]  This was an important story and we must only intervene and limit the right to free expression, and the broadcaster’s right to present the piece in the way it did, if there is sufficient justification to do so. With that in mind we proceed to consider the standards raised in the complaint.

Was the broadcast inaccurate or misleading?

[35]  The accuracy standard (Standard 5) 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 objective of this standard is to protect audiences from receiving misinformation and thereby being misled.³

[36]  Seqirus argued that the broadcast was inaccurate or misleading in a number of respects:

• the overall impression created by the programme that Gardasil is unsafe and caused the symptoms discussed in the broadcast
• the programme’s failure to explain what an ‘adverse reaction’ is and the suggestion that all adverse reactions of the Gardasil vaccination are of equal severity to those suffered by the girls featured
• the programme’s misrepresentation of the investigation into the death of B
• the programme’s failure to seek comment from appropriate bodies, ie, CARM and the Coroner’s Office.

Overall impression created by the programme that Gardasil is unsafe and caused the symptoms discussed in the broadcast

[37]  Seqirus argued that the following misleading aspects of the report contributed to this impression:

• The girls’ stories were presented ‘as though they were evidence that proved that Gardasil was the cause of their symptoms’, and the girls ‘all told [the reporter] that Gardasil was the cause’. It said that MediaWorks was required to ‘make at least basic efforts to investigate whether [the girls’ opinions] were in substance supported by scientific evidence’.
• The story referenced ‘screeds’ of medical evidence on both sides, when in fact there is no medical evidence that Gardasil is unsafe, and none was cited in the programme.
• ‘[T]he only argument put forward by the other side of the debate is that if there is no other immediately recognisable cause of the symptoms suffered, the cause must be Gardasil’. Seqirus alleged that the programme did not discuss whether there could be a ‘valid alternative cause’ of the symptoms or whether ‘the likelihood and frequency’ of the symptoms were experienced at the same rate as those who had not received the vaccination. It also pointed out that one of the girls had been diagnosed with Chronic Regional Pain Syndrome (CRPS), and that MediaWorks had ‘failed to explore a possible identified (and scientifically accepted) cause for [her] symptoms, being an untreated physical trauma.’
• International anecdotes were taken out of context because in fact the EMA investigation referred to was linked to the Danish documentary.
• The broadcast failed to state that the EMA investigation ‘considered the types of symptoms that the girls interviewed have suffered’.
• The Irish Senator featured ‘did not have any medical background or expertise’.

[38]  In summary, Seqirus argued that the broadcast ‘did not make any concerted effort to ask if there could be another underlying problem; it remains entirely plausible that all six girls’ issues have arisen for different reasons. Nevertheless, viewers were clearly invited to conclude that there is a link between the girls’ symptoms and Gardasil and that despite the lack of concrete medical evidence, there are grounds to believe that Gardasil is unsafe.’

[39]  MediaWorks argued that ‘the tone of the programme was that the girls suffered illnesses that they believed to have been caused by Gardasil’ and that the programme had ‘explained that Gardasil is considered safe by the medical community’. It made the following points in response to Seqirus’ arguments:

• The girls’ statements that Gardasil was the cause of their symptoms was clearly opinion and thus that the accuracy standard did not apply.
• The reference to ‘screeds’ of research on both sides ‘established to viewers the fact that debate exists regarding the safety of Gardasil’. MediaWorks provided links to three articles which it considered ‘suggest[ed] that further studies are necessary’.
• The girl who had been diagnosed with CRPS maintained to MediaWorks that Gardasil may have been the trigger of her CRPS.
• The EMA findings were adequately summarised in the broadcast.
• There was no assertion that EMA’s investigation did not consider the types of symptoms the girls interviewed suffered.
• The Irish Senator was not presented as an expert.

[40]  We accept that the programme suggested there are questions about whether Gardasil might be unsafe for some girls receiving the vaccination, and whether it may have caused or contributed to the symptoms and deaths discussed in the programme. In a general sense, this Authority is not the appropriate body to determine whether or not ‘Gardasil is unsafe’, and we do not have the necessary expertise to make such a finding. Our task is to consider whether the broadcaster made reasonable efforts to ensure that material points of fact in the broadcast were accurate, and to ensure the programme did not mislead. It is with this in mind that we have assessed the aspects of the programme which Seqirus identified as contributing to the impression it alleged was created by the programme (see [37] above).

[41]  Guideline 5a says that the accuracy standard does not apply to statements which are clearly distinguishable as analysis, comment, or opinion. We think that viewers would have taken the opinions of the girls and their families as just that – their personal opinions and experiences. They were clearly presented as such, and were usually given in response to the reporter’s question, ‘What do you think?’ They did not hold themselves out to be experts, and the reporter put it to several of those she interviewed that there is no medical evidence that Gardasil is unsafe. We do not agree with Seqirus that MediaWorks had a duty to ensure that the girls’ opinions were ‘rooted in fact’ – that would defeat the purpose of guideline 5a. In this respect, the programme was not inaccurate or misleading.

[42]  In assessing whether the reference to ‘screeds’ of research on both sides was inaccurate or misleading, we make several observations. First, ‘screeds’ is a subjective term and does not lend itself to considerations of factuality. Second, MediaWorks cited in its submissions several pieces of research which at the very least called for further investigation into Gardasil.⁴ Third, the rest of the programme made it abundantly clear that there is no definitive medical evidence that Gardasil is unsafe. Therefore, considering the programme as a whole, viewers would not have been misled and we find that this aspect of the programme was not inaccurate or misleading.

[43]  Regarding Seqirus’ contention that the programme failed to consider whether there could be any ‘valid alternative cause’ to the symptoms suffered by the girls, we do not agree. Rather, this was the purpose of exploring what investigations had been carried out and asking the girls and their families whether there could be other explanations. It was the lack of any identifiable ‘valid alternative cause’ that gave rise to suspicions from the girls and their families and to the 3D investigation.

[44]  As to one girl’s diagnosis of CRPS, this did not preclude the reporter asking her what could have triggered her health problems. The girl responded, ‘I think it might have been the trigger to what I have’ (see paragraph [9] above). As we have stated above at paragraph [39] above, this statement was not subject to the accuracy standard because it was clearly her opinion. Accordingly, this aspect was not inaccurate or misleading.

[45]  We do not agree that the EMA investigation was mischaracterised in any way, or that the reporting on this was in any way misleading. We also do not agree that the Irish Senator was held out as being a medical expert. Both of these aspects were included as international context to the story, and were not inaccurate or misleading in any way.

[46]  Overall, while we accept that viewers may have been left with the impression that Gardasil could be unsafe for some girls, we do not have jurisdiction, nor the appropriate expertise, to determine whether this was correct. However, we have considered the specific aspects which Seqirus alleged were inaccurate or misleading and we do not agree that they were. MediaWorks appeared to have a reasonable basis to question the safety of Gardasil and the programme was transparent about the fact that no medical evidence existed to support the contention that it was unsafe. The reporter acknowledged several times that scientists considered Gardasil to be completely safe, and the item contained an extensive interview with Dr Jessamine who reiterated that the medical community considered the vaccine to be safe (see paragraph [26] above). The interviewees’ concerns were also clearly contextualised for viewers with reference to 478 adverse reactions to the vaccination recorded, among 200,000 women in New Zealand who had received the vaccination.

[47]  We therefore do not uphold this part of the accuracy complaint.

The programme’s failure to explain what an ‘adverse reaction’ is, and the suggestion that all adverse reactions of the Gardasil vaccination are of equal severity to those suffered by the girls featured

[48]  Seqirus argued that including the statistic that ‘478 adverse event reports [had] been filed’ in relation to the Gardasil vaccine gave the impression that this was a ‘worrying statistic’ when in fact it was not, as the ‘rate of adverse event reports is slightly less than one per thousand doses’. It also argued that the implication was given that all 478 reactions were ‘of the same severity as the symptoms suffered by the girls’, but in fact ‘matters such as pain, swelling or bruising around the injection area also amount to adverse reactions and would comprise a proportion of these cases’. It also pointed out that ‘making a report does not automatically lead to the conclusion that the vaccine was in fact the cause or in any way related to the symptoms suffered’.

[49]  MediaWorks argued that the reported number of adverse events was accurate and not disputed by the complainant. It disagreed that the use of the statistic created the impression alleged.

[50]  We do not agree with the complainant that the programme suggested that the number of adverse reactions was ‘worrying’ or that all adverse reactions were as serious as those mentioned in the programme. MediaWorks was not required to canvass all possible kinds of adverse reaction; the story’s focus was the personal experiences of the girls interviewed, conveyed in their own words. The programme clearly stated several times that the girls who suffered serious reactions were in a very small minority, also noting that 200,000 women across New Zealand had received the vaccination. We therefore find the programme was not inaccurate or misleading in this respect.

The programme’s misrepresentation of the investigation into the death of B

[51]  Seqirus argued that the reporter’s statement that, ‘[w]ithout an inquest there’s been no investigation into whether there’s any connection between Gardasil and B’s death’ misrepresent[ed] the role of Coroners, and that the programme thus ‘suggest[ed] that the Coroners have not followed the correct process with regards to her death, which ‘gives the public reason to doubt their efficacy and trustworthiness’.

[52]  MediaWorks argued that there was ‘no suggestion made that the [Coroner] did not [follow] the correct process’.

[53]  We do not agree that there was any misrepresentation of the Coroner’s role or implication that the Coroner had not followed the correct process. While the reporter perhaps implied that there should have been further investigation by the medical authorities, this was open to her as her opinion, and was not misleading.

The programme’s failure to seek comment from appropriate bodies, ie, CARM and the Coroner’s Office

[54]  Seqirus argued that MediaWorks should have approached CARM and the Coroner’s Office for comment to give them an opportunity to ‘fully explain the reports and decisions made’, and that the failure to do so resulted in the programme being misleading.

[55]  MediaWorks argued that it had had ‘many conversations’ with the Coroner’s Office and that the Ministry of Health had provided information from CARM through Dr Jessamine. It said it was ‘satisfied ... that 3D took reasonable steps to seek comment from appropriate bodies and that there was no intention to mislead viewers’.

[56]  As stated by MediaWorks, it had been in correspondence with the Coroner’s Office, and Dr Jessamine spoke as a representative of CARM as well as the Ministry of Health. We are satisfied that neither the Coroner’s Office, nor CARM, was misrepresented in the broadcast, and that viewers were not misled in this respect.

Conclusion on accuracy

[57]  Overall, we are satisfied that the broadcaster made reasonable efforts to ensure that the programme was accurate and did not mislead, and we decline to uphold the accuracy complaint.

Did the broadcast breach the responsible programming standard?

[58]  The responsible programming standard (Standard 8) requires broadcasters to ensure that programmes are correctly classified and screened in the appropriate time-band. The standard also says that broadcasters should ensure programmes are not presented in such a way as to cause panic, or unwarranted alarm or undue distress, and do not deceive or disadvantage viewers.

[57]  Seqirus argued that the programme ‘was presented in a way that cause[d] unwarranted alarm and/or deceive[d] or disadvantage[d] the viewer’ by:

• suggesting Gardasil has severe side effects without any ‘valid evidential basis’
• presenting the risk of cervical cancer as a preferable prospect to receiving the Gardasil vaccination
• ‘suggesting that the medical profession and associated regulators are failing in their roles and exposing girls to unnecessary risk by administering Gardasil’
• discouraging individuals from receiving the Gardasil vaccination or receiving further doses of the vaccination, which could cause girls and women to ‘contract HPV and cervical cancer as a result’.

[59]  MediaWorks argued that the programme ‘presented a range of views and gave viewers a balanced perspective’. It said that it ‘did not question the value and importance of vaccinations and did not discourage viewers from taking them’ and did not make any ‘recommendation in regard to the Gardasil vaccination’. MediaWorks submitted that the programme ‘acknowledged the gravity of the disease Gardasil is intended to protect against, as well as noting that side effects resulting from the vaccine have been minimal’. It considered that viewers ‘will have considered the range of views expressed ... and weighed them against their existing understandings of the Gardasil vaccine ... allowing them to reach an informed conclusion as to the validity of the concerns raised in the programme.’ As a result, MediaWorks did not consider that the programme would have alarmed or disadvantaged viewers.

[60]  In our view, the tone of the programme was not alarmist, but rather exploratory. It posed the question whether Gardasil might be unsafe for some girls, with reference to the experiences of the girls featured. This was important and in the public interest to investigate. It did so in a responsible and balanced way, presenting viewers with adequate information on both sides, and did not ignore the significant medical evidence to the contrary. The reporter acknowledged several times that scientists considered Gardasil to be completely safe, and the item contained an extensive interview with Dr Jessamine who reiterated that the medical community considered the vaccine to be safe (see paragraph [26] above). As we have said in relation to accuracy, the programme also placed the number of those affected within the context of the large number of vaccinations given (200,000 girls in New Zealand, and 63 million doses administered worldwide).

[61]  Overall, we agree with the broadcaster that viewers were given sufficient information and a range of viewpoints which enabled them to make up their own minds about the vaccine. Therefore we do not uphold the complaint under Standard 8.

For the above reasons the Authority does not uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
27 June 2016

Appendix

The correspondence listed below was received and considered by the Authority when it determined this complaint:
1      Seqirus’ formal complaint – 2 December 2015
2      MediaWorks’ response to the complaint – 19 February 2016
3      Seqirus’ referral to the Authority – 26 February 2016
4      MediaWorks’ response to the referral – 30 March 2016
5      Seqirus’ final comment – 6 April 2016
6      MediaWorks’ final comment – 3 May 2016

¹ This complaint was determined under the previous Free-to-Air Television Code, which applied up until 31 March 2016. The new Broadcasting Standards in New Zealand Codebook took effect on 1 April 2016 and applies to any programmes broadcast on or after that date: http://bsa.govt.nz/standards/overview

² See sections 5 and 14 of the New Zealand Bill of Rights Act 1990

³ Bush and Television New Zealand Ltd, Decision No. 2010-036

⁴ For example, Danish Medical Journal, http://www.danmedj.dk/portal/page/portal/danmedj.dk/dmj_forside/PAST_ISSUE/2015/DMJ_2015_04/A5064; National Center for Biotechnology Information, U.S. National Library of Medicine, http://www.ncbi.nlm.nih.gov/pubmed/24102827; ‘Death after [HPV] Vaccination: Causal or Coincidental?’ from Pharmaceutical Regulatory Affairs: Open Access journal, http://www.luontaisnetti.fi/hpv/LTShawDeathafterQuadrivalentHPVvaccinationPharmaRegAffairs2012.pdf