BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Te Kaea – item reported that colostrum from cows’ milk was being used to cure a variety of illnesses – allegedly unbalanced and inaccurate

Findings
Standard 4 (controversial issues – viewpoints) – item reported a new product which was claimed to be a cure for a wide variety of illnesses – discussed a controversial issue of public importance – no alternative viewpoints were presented which questioned the product’s effectiveness or the scientific proof behind it – unbalanced – upheld

Standard 5 (accuracy) – reporter adopted the position put forward in the story that colostrum was a miracle cure – news was not impartial – viewers would have been misled – upheld

Orders
Section 13(1)(a) – broadcast statement

Section 16(4) – payment of costs to the Crown $1,000

This headnote does not form part of the decision.

Broadcast

[1]   An item on Te Kaea, broadcast on Māori Television on Saturday 7 November 2009 reported on “praise for a remedy that comes from the milk of a cow and being used to cure a variety of illnesses”. The reporter stated that “those who have used colostrum... have been rejuvenated and brought back to health from the brink of death” and that they had come together to share their experiences. Three individuals were shown advocating colostrum. One man said, “I was taking a lot of pills and other drugs, but I don’t take those anymore,” while another said, “I was near to death, but now I’m fine.” The reporter said that “there are no concerns about the colostrum coming from cows and being used to stimulate the human body’s stem cells”. At the end of the item, Dame Iritana Tawhiwhirangi was shown saying (in Māori, with English subtitles):

It’s individual choice. If you are suffering from a lot of illnesses, or you don’t have many options left open to you, I’m not saying this is for you, I’m saying this can help cure you from all illnesses. But really it’s up to you.

Complaint

[2]   Paul Tahere made a formal complaint to Māori Television, the broadcaster, alleging that the item breached standards relating to accuracy and the discussion of controversial issues.

[3]   Mr Tahere argued that the item was presented as a “news event rather than a sales event” and that it stated that people had been “brought back to health from the brink of death”. He considered that the item would have led viewers to believe that the effectiveness of colostrum had been proven when it had not. No scientific evidence was presented as a balancing perspective, he said.

[4]   With regard to accuracy, the complainant argued that the comments, “the choice between a healthy life and continuing illness”, and “I’m saying this can help cure you from all illnesses” were presented as fact rather than opinion. He said that stem cell research was sparse and considered that the item “would have given people false hope”.

Standards

[5]   Mr Tahere nominated Standards 4 and 5 of the Free-to-Air Television Code of Broadcasting Practice in his complaint. These provide:

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance in news, current affairs or 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.

Standard 5 Accuracy

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/or
• does not mislead.

Broadcaster's Response to the Complainant

[6]   Looking at Standard 4, Māori TV said that “arguably the issue could be seen as controversial due to the fact that the actual benefits of the colostrum have not been properly established”. It also considered that the issue discussed was of public importance because it had “the potential to affect not just Māori but the whole population”.

[7]   Māori TV argued that reasonable opportunities were given to those who attended the conference to offer their personal experiences of the benefits of using colostrum. It said:

...the context of the story was trying to inform the public that this food supplement existed. It rendered no conclusion as to the efficacy of the product itself, and the story stated that this may assist people with illnesses however it should not be treated as a panacea to all ills. Despite this, there could have been some form of expert comment related to the use of colostrum and a brief analysis of its efficacy...

[8]   Māori TV therefore accepted that it could be argued that not all significant points of view were presented as the views of the company promoting colostrum and the views of health professionals were not included in the item. It said that it had recommended to its news and current affairs department that a follow-up story be broadcast within the period of current interest to present other significant points of view. It had also recommended that the reporter be notified of the complaint.

Referral to the Authority

[9]   Dissatisfied with the broadcaster’s response, Mr Tahere referred his complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[10]   Mr Tahere said that it appeared that Māori TV had upheld his complaint under Standard 4 although it had not stated that explicitly. He accepted that broadcasting another item would “assist in mitigating the original unbalanced story”. However, he was unsatisfied because Māori TV had not promised to broadcast a follow-up item or given any timeframe.

[11]   The complainant noted that the broadcaster had not addressed his complaint under Standard 5. He reiterated his view that the item was inaccurate.

Broadcaster’s Response to the Authority

[12]   Māori TV provided a recording of a follow-up item that was broadcast on Te Kaea on 30 January 2010. It included the following comments (mostly spoken in Māori and displayed as English subtitles):

• “From years of scientific research into the colostrum found in cows’ milk, the result is an array of alternative medicines which is proving popular with Māori.” (presenter)
  
  
• “People want to know the facts, they want to know the truth. They want to substantiate... the scientific backing behind the claims that we make...” (Graeme Clegg, colostrum spokesman, in English)
  
  
• “So have the products been scientifically proven?” (reporter)
  
  
• “Indeed, scientists have approved the colostrum.” (Oto Simmonds, interviewee)
  
  
• “Colostrum has more research than any other nutritional supplement that’s in the world today and helping to restore the body’s functions. Without a doubt there’s no question the scientific backing is there.” (Graeme Clegg, in English)
  
  
• “This is being researched worldwide, there’s nothing better.” (Graeme Clegg)
  
  
• “There must be some sceptics out there.” (reporter)
  
  
• “For the sceptic, I guess the best way to find out is try it like I did.” (Oto Simmonds, in English)
  
  
• “I would tell them to consume the medicine carefully to reap the full benefits.” (Oto Simmonds)

[13]   The broadcaster stated that it had “fully acknowledged” that the November item breached Standard 4 of the Code, and that it had offered “remedial action which was implemented well within the period of current interest”. It considered that it had acted sufficiently to remedy the breach.

[14]   With regard to accuracy, the broadcaster argued that Dame Iritana Tawhiwhirangi was expressing her opinion as she was entitled, and that she was not presented as an expert on colostrum. Māori TV asserted that her comment was actually, “I am not saying that this can help cure you from all illnesses” (emphasis added). It maintained that the item would not have given people false hope.

Further Comments from the Broadcaster

[15]   Māori TV stated that, having looked at the items again, it considered that the follow-up story did not meet broadcasting standards and said that it intended to broadcast a third story using a different reporter.

Authority's Determination

[16]   The members of the Authority have viewed a recording of the broadcast complained about, as well as the follow-up item, and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Procedural Matters

[17]   In the Authority’s view, Māori TV did not explicitly uphold the Standard 4 complaint in its original decision, but only recommended that another item be broadcast. Accordingly, the Authority has accepted Mr Tahere’s referral under section 8(1B)(b)(i) of the Broadcasting Act 1989 on the basis that he was dissatisfied with the broadcaster’s response rather than with the action taken by Māori TV.

[18]   With respect to Māori TV’s latest submission that Dame Iritana Tawhiwhirangi had actually said, “I am not saying that this can help cure you from all illnesses”, the Authority notes that the English subtitles in the item said “I’m saying this can help cure you from all illnesses”.

Standard 4 (controversial issues – viewpoints)

[19]   Standard 4 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.

[20]   In the Authority’s view, reporting on a product which was claimed to be a cure for all illnesses constituted a discussion of a controversial issue of public importance to which Standard 4 applied. The Authority notes that the following comments were included in the item in favour of colostrum:

• “Praise for a remedy that comes from the milk of a cow and being used to cure a variety of illnesses.” (presenter)

• “...those who have used colostrum... have been rejuvenated and brought back to health from the brink of death.” (reporter)

• “Māori suffer from many illnesses. When I heard about this event and this remedy, I thought I should come along so that I could explain to families that this could be a potential remedy they could look at.” (Dame Iritana Tawhiwhirangi)

• “I was taking a lot of pills and other drugs, but I don’t take those anymore.” (Oto Simmonds)

• “I was near to death, but now I’m fine.” (Travis Rapana)

• “There are no concerns about the colostrum coming from cows and being used to stimulate the human body’s stem cells.” (reporter)

• “Apart from the fact that colostrum comes from cows, it is a choice between a healthy life or continuing illness.” (reporter)

• “It’s individual choice. If you are suffering from a lot of illnesses, or you don’t have many options left open to you, I’m not saying this is for you, I’m saying this can help cure you from all illnesses. But really it’s up to you.” (Dame Iritana Tawhiwhirangi)

[21]   In fact, these comments made up the entire item. Te Kaea did not present any information about what exactly the product was, or how it was viewed among doctors or scientists. The Authority considers that the item appeared to be more like an infomercial than a news item, except that it was given credibility because it was presented in Māori TV’s primary news programme. Without any balancing perspectives, the Authority finds that viewers could not assess the validity of the information presented. The Authority therefore agrees with Mr Tahere that the item may have given some viewers “false hope”.

[22]   Accordingly, the Authority finds that Māori TV did not satisfy its obligation under Standard 4 by presenting significant perspectives within the programme so that viewers could reach an informed conclusion about the issue under discussion.

[23]   Standard 4 allows broadcasters to provide balance within the period of current interest. Māori TV broadcast a follow-up item on 30 January 2010 which was intended for this purpose. However, looking at the comments that were included in the 30 January item (see paragraph [12]), the Authority considers that the item in fact compounded the lack of balance by simply stating that, first, scientists had approved colostrum, and second, any sceptics should try the product and see the results for themselves. The item still did not present any information about medical or scientific research into the product’s effectiveness.

[24]   The Authority therefore concludes that the 30 January item did not present alternative viewpoints which provided balance for the 7 November item within the period of current interest.

[25]   Having reached this conclusion, the Authority must decide whether to uphold the complaint as a breach of Standard 4. In Commerce Commission and TVWorks,¹ the Authority determined that upholding a complaint under Standard 4 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 4 in the following terms:

... the balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion. The standard only applies to programmes which discuss "controversial issues of public importance", and therefore this objective is of vital importance in a free and democratic society. Accordingly, the Authority considers that upholding a complaint under the balance standard would place a justified limitation on a broadcaster's right to freedom of expression.

[26]   The Authority must now consider whether it would be a reasonable and proportionate limit on Māori TV’s freedom of expression to uphold a breach of the Standard 4 on this occasion. As discussed above, the significant perspective which was omitted from this programme was important to viewers' ability to reach an informed view on the effectiveness of colostrum for curing health problems. Upholding this part of the complaint would signal the importance of providing the public with all significant sides of a controversial issue under discussion particularly when claims are made about the medical effectiveness of a product. Accordingly, upholding this part of the complaint would clearly promote the objective of Standard 4 (as outlined in paragraph [25] above).

[27]   In these circumstances, the Authority upholds the Standard 4 complaint.

Standard 5 (accuracy)

[28]   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. Mr Tahere complained that the following two statements breached Standard 5:

“Apart from the fact that colostrum comes from cows, it is a choice between a healthy life and continuing illness” (reporter)

“I’m saying this can help cure you from all illnesses” (Dame Iritana Tawhiwhirangi)

[29]   Guideline 5a to the accuracy standard states that the standard does not apply to comments which are clearly distinguishable as opinion. In the Authority’s view, viewers would have realised that Dame Iritana Tawhiwhirangi was offering her opinion, particularly as she prefaced her comment with “I’m saying...”

[30]   However, guideline 5c states that news must be impartial. The Authority considers that the reporter, in unequivocally stating that “it is a choice between a healthy life and continuing illness”, explicitly accepted the position favouring colostrum which was put forward in the item. Coupled with the lack of balance in the item, the Authority also finds that the reporter’s adoption of the views expressed in the item would have misled viewers about the effectiveness of colostrum.

[31]   Accordingly, the Authority finds that the item was not impartial, and was misleading. Having reached this conclusion, the Authority must consider whether to uphold the complaint as a breach of Standard 5 (accuracy).

[32]   The Authority acknowledges that upholding the Standard 5 complaint would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In Pryde and RNZ,² the Authority determined that upholding a complaint under Standard 5 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act.

[33]   The Authority considers that it would be a reasonable and proportionate limit on Māori TV’s freedom of expression to uphold a breach of the accuracy standard on this occasion. Te Kaea is Māori TV’s primary news programme, and its viewers must be able to expect that its reporting is impartial and truthful at all times. Upholding Mr Tahere’s complaint clearly promotes the objective of Standard 5, which is to protect audiences from receiving misinformation and thereby being misled. In these circumstances, the Authority upholds the accuracy complaint.

For the above reasons the Authority upholds the complaint that the broadcast by Māori Television of an item on Te Kaea on 7 November 2009 breached Standards 4 and 5 of the Free-to-Air Television Code of Broadcasting Practice.

[34]   Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties.

Submissions on Orders

[35]   Mr Tahere stated that he was happy for the Authority to make a decision as to the appropriate orders. However, he said that he would like Māori TV to properly explain how “such a biased item” was allowed to screen, and to ensure that “their reporters are not captured like this again”. Noting the Authority’s comments on procedural matters, he also considered that the broadcaster needed to review its process for handling complaints.

[36]   Māori TV wrote a formal apology to Mr Tahere. It said that the item was the result of a failure to follow editorial procedures and provide significant points of view. This happened because the same person was assuming the roles of reporter and producer, so an independent producer had not checked the item before it went to air. Māori TV said that, in future, all items correcting an error would be overseen by the executive producer of the programme, the head of news or the general manager of news and current affairs.

[37]   The broadcaster stated that a disciplinary meeting was held with the reporter involved, and that it would be reviewing its complaints handling processes. It accepted that the subtitles in the story for Dame Iritana Tawhiwhirangi’s comment were incorrect.

Authority’s Decision on Orders

[38]   Given that the Authority has found that the broadcast was misleading and unbalanced, it considers that it is appropriate to order Māori TV to broadcast a comprehensive summary of the upheld aspects of the Authority's decision. The statement must be broadcast both verbally and visually on screen; the Authority will liaise with Māori TV as to how this should be presented so that the statement caters to both Māori and English speakers.

[39]   Costs to the Crown are generally imposed where there has been a serious departure from broadcasting standards. On this occasion, the first broadcast reflected a breakdown in Māori TV’s editorial procedures, and the second item compounded the original breaches of broadcasting standards. In all the circumstances, the Authority considers that an order of $1,000 costs is warranted on this occasion.

Orders

The Authority makes the following orders pursuant to sections 13 and 16 of the Broadcasting Act 1989:

1. Pursuant to section 13(1)(a) of the Act, the Authority orders Māori Television to broadcast a statement approved by the Authority.

That statement shall:

• be broadcast within one month of the date of this decision

• be presented both verbally and visually on screen

• be broadcast during Te Kaea, on a date and at a time to be approved by the Authority

• contain a comprehensive summary of the upheld aspects of the Authority's decision.

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

1. Pursuant to section 16(4) of the Act, the Authority orders Māori Television to pay to the Crown costs in the amount of $1,000, within one month of the date of this decision.

The orders for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich
Chair
13 May 2010

Appendix

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

1.           Paul Tahere’s formal complaint – 24 November 2009

2.          Māori TV’s response to the complaint – 1 December 2009

3.          Mr Tahere’s referral to the Authority – 24 December 2009

4.          Māori TV’s response to the Authority – 4 February 2010

5.          Further comments from Māori TV – 16 February 2010

6.          Mr Tahere’s submissions on orders – 6 April 2010

7.          Māori TV’s submissions on orders – 22 April 2010

¹Decision No. 2008-014

²Decision No. 2008-040