BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld two complaints about an interview on Morning Report with Sue Grey, lawyer for the parents of a baby whose urgent heart surgery had been delayed due to the parents’ concerns regarding blood from donors vaccinated against COVID-19. The essence of the complaints was that the host did not listen to Grey, constantly interrupted her, did not allow her to answer the questions, and pushed his personal views. The Authority found the interview did not go beyond the level of robust scrutiny that could reasonably be expected in an interview with Grey on this subject, noting in particular that Grey was making claims contrary to public health advice, and was able to put forward key points in the course of the eight-minute interview. Therefore the broadcast overall did not result in any unfairness to Grey. The balance, accuracy and children’s interests standards either did not apply or were not breached.

Not Upheld: Fairness, Balance, Accuracy, Children’s Interests

The broadcast

[1]  On 1 December 2022 at approximately 7.10am, Morning Report broadcast an interview between host Corin Dann and lawyer Sue Grey. Grey was being interviewed in her capacity as the lawyer for the parents of a baby whose urgent heart surgery had been delayed due to their concerns regarding blood donations. The segment began as follows:

Dann:              The lawyer acting for the parents who are demanding only blood from unvaccinated donors be used for their baby's life saving surgery says the couple are being unfairly treated. The case is going back to the High Court next Tuesday, with health authorities asking for the baby to be placed under the guardianship of the Court. Now the parents are convinced any blood from vaccinated donors is unsafe. But Immunisation Advisory Centre Medical Director and Vaccinologist, Nikki Turner says that is not true.

Turner:           So what we do have in blood products is our immune response either to COVID disease or to a vaccine. And the immune response is what you will see in blood. And that's the same to any virus we're exposed to, COVID, or any other virus. So from a science point of view, there are no concerns here.

[2]  The interview (which lasted approximately 8 minutes in total) began with Grey explaining that the baby was born with a congenital heart defect, has already had one operation, and the question was whether this was an appropriate case (rather than seeking a blanket law change) for ‘direct donor blood’ from the New Zealand Blood Bank.¹

[3]  The interview included the following dialogue:

Dann:              Okay. So they trust the medical science behind those surgeons carrying out that operation yet they don't trust those same doctors who do trust the blood service's blood. Where's the logic in that?

Grey:               Oh, there's a huge amount of logic. There's a lot of evidence, including from Medsafe, the New Zealand Government regulator, about the harm or potential harm from the Pfizer vaccine. And we had a child -

Dann:              [Interrupting] No, no, no, no, no, no, no. I want an answer – I want an answer to the question that I asked, which is –

Grey:              Yes this is – this is – if you'd given me a chance to –

Dann:              [Speaking over interviewee] So – so you trust the doctors, the medical science behind the operation. Those same doctors, same doctors are not willing to cede to your request. They trust the blood from the blood service. They accept the truth, which is there's no risk here, yet, you're not willing to trust them.

Grey:               No, no, that is not the truth. The truth is there's a huge amount of international research showing that there are factors in blood that can cause –

Dann:              [Interrupting] I'm sorry Sue but that is not the case –

Grey:               No, no, look you've asked me –

Dann:              [Interviewee trying to interject] If we look at the Federal Drug Administration, the Canadian Blood Services Board, these have all found there is no issue here. We've got New Zealand's Medsafe, we've got the Blood Service, the Immunisation Centre, the overwhelming scientific evidence is clear. I don’t want to have a discussion about the research because you and I are laypeople. We trust the experts.

Grey:              The reason we’re in court is to have this discussion that needs to be had that nobody’s been having.

                        …

Grey:               [The doctors] are not 100% confident. What they're saying is there's been no testing done on the blood, so they have no information to show any harm from the blood. But they haven't done any testing and they have no testing to assess what factors are in the blood. What if there's any spike protein in vaccinated blood –

Dann:              [Interrupting] [Interviewee trying to interject] Again, I'm just sorry. But the overwhelming medical advice and experts in this country that we live in is very clear that there isn't a risk. And I wonder, are you concerned that this might –

Grey:               You're not – you're not – you asked me a question, you're not listening to my answer. I had a meeting with them yesterday. They confirmed at the meeting they had no way of measuring the blood to see what is in it. And we know that the factors from the vaccine, according to Medsafe's own website, can cause harm. It can cause inflammation, myocarditis, it can cause thrombosis, it can cause anaphylaxis, it can cause all sorts of problems –

                        …

Grey:               It's not scientific method to give a vaccine effectively by an indirect route, give a vaccine that's not approved for people under five to a very vulnerable baby who's got contraindications for that vaccine. That is not scientific method –

Dann:              [Interrupting] None of this is passed on in the blood. But again, I want to come back to the point – you and I are laypeople here. We live in a system that trusts experts.

[4]  The interview ended as follows:

Grey:               Well, this is really difficult to have the conversation when you won't listen and when you won't look at the evidence because this is –

Dann:              [Interrupting] The reason – I'm sorry for being – I'm sorry for interrupting and you may think I'm being rude, but the reason I'm doing that is because, again, I trust the medical science, the people who will be performing that surgery.

Grey:               We trust them as surgeons, but they're not experts on the Pfizer vaccine and the risks in blood. And I can tell you that for sure, because there's a lot of research that we've got from around the world that these doctors were not even aware of until we started providing it to them.

Dann:              Okay, Sue Grey, I'm going to leave it there. But thank you very much for coming on. I do appreciate that.

The complaints

[5]  Gareth Watkins complained the broadcast breached the fairness and balance standards of the Code of Broadcasting Standards in New Zealand as:

• Grey ‘was not given the chance to answer questions posed’ or get her point of view across while Dann ‘made every attempt to stop the interviewee from completing an answer’.
• ‘In the recording of the live interview, Corin speaks for 4m56s while the interviewee speaks for a mere 3m42s. Twice the interviewee complains that the interviewer will not let her answer and is not listening. Why get an interviewee on air if the programme clearly doesn't want to hear what they have to say?’
• ‘The producer could have stopped the interview at any point when the interviewer became unstable,’ or ‘pre-recorded the interview and not aired it.’
• In relation to RNZ’s argument (paragraph [9] below) that Grey may not have been able to hear the questions due to the interview being conducted over the internet: ‘This is pure speculation on the part of RNZ. Ms Grey did not complain about the inability of being able to hear or understand the interviewer. She complained about not being listened to and not being allowed to finish.’
• ‘This was a prime-time interview on RNZ's flagship news programme. It was potentially heard by hundreds-of-thousands of New Zealanders. Given the very public nature of the encounter, a public apology in the same time slot to Ms Grey is the least RNZ could do.’

[6]  Alan Yardley complained the broadcast breached the fairness, balance, accuracy and children’s interests standards on the basis:

• Dann refused to listen to Grey’s answers and ‘shovelled his personal views into every aspect of this “conversation”’.
• Dann did not ‘demonstrate any empathy for the child or his parents, nor did he advance anything remotely like “help” for their plight.’
• The interview demonstrated ‘ignorance, stupidity, and corruption of the truth’.

The broadcaster’s response

[7]  In responding to the complaints, Radio New Zealand Ltd advised:

…this was not an excellent interview and that it did little to clarify the issues delaying the surgery which are of interest to the audience. In fact, the conduct of the interview raised issues with RNZ’s editorial policies, namely (3.13) of the Interviewing Code of Conduct.²

…

Had Ms Grey been allowed to respond in her own words and in her own time, the interview may well have been more productive.

[8]  In this respect RNZ advised the matter had been raised with people involved within RNZ and that the issue had been resolved.

[9]  However, it did not uphold the complaints, considering the broadcast did not meet ‘the very high threshold required to uphold a complaint under the broadcasting standards’. It noted:

• ‘Ms Grey is an able media performer who is well versed in defending her point of view in a debate.’
• ‘The interview was conducted over the Internet, which can lead to multiple points of failure and, therefore, it is possible that Ms Grey may not have been able to hear everything that Mr Dann was saying.’

The standards

[10]  The complaints did not make specific arguments against the standards raised. We have focused our decision on the fairness standard, which in our view is most relevant to the complainants’ concerns. The fairness standard³ states broadcasters should deal fairly with any individual or organisation taking part or referred to in a broadcast. It protects the dignity and reputation of those featured in programmes,⁴ and ensures they are dealt with justly and fairly and protected from unwarranted damage.

[11]  We deal briefly with the remaining standards raised (balance, accuracy and children’s interests) at paragraph [23].

Our analysis

[12]  We have listened to the broadcast and read the correspondence listed in the Appendix.

[13]  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, and 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 the level of harm means placing a limit on the right to freedom of expression is reasonable and justified.⁵

Fairness

[14]  The key concerns raised in both complaints concern the host’s interview manner and treatment of Grey during the interview. We consider these are best addressed as a question of whether the broadcast overall resulted in any unfairness to Grey.

[15]  A consideration of what is fair, and the threshold for finding unfairness to an individual, may take into account factors such as:⁶

• the nature of the programme and content
• the nature of the individual (ie the threshold for finding unfairness will be higher for a public figure, politician or organisation familiar with dealing with the media, as opposed to an ordinary person with little or no media experience)
• whether the programme would have left the audience with an unfairly negative impression of the individual
• whether any critical comments were aimed at the participant in their business or professional life, or their personal life
• the public significance of the broadcast and its value in terms of free speech
• the vulnerability of the individual.

[16]  Applying these to this case, we noted in particular:

• Morning Report is a news programme featuring coverage of local and world events,⁷ with an adult target audience. It frequently features robust interviews with individuals on newsworthy subjects.
• There was significant public interest in the baby’s case, given the serious risks involved in delaying its surgery due to the parents’ concerns about donor blood, and given Te Whatu Ora had filed an application for guardianship of the baby so consent could be given to use donated blood.⁸ The interview with Grey carried public interest as it provided some insight into the parents’ perspective and the reasons they did not want their baby to receive blood from vaccinated donors.
• Grey is a high profile lawyer and co-leader of the NZ Outdoors & Freedom Party.⁹ She is an anti-vaccination activist, who frequently shares misinformation on her social media pages about COVID-19 and the Pfizer vaccine.¹⁰
• Grey is experienced in dealing with the media, having been involved in several high-profile legal matters throughout her career,¹¹ as well as being co-leader of a political party.¹²
• Dann frequently interrupted Grey when she was trying to answer his questions, and argued strongly against her point of view regarding the safety of blood from donors who have had the Pfizer vaccine.
• Grey complained several times Dann was not listening to her answers to his questions, at one point stating “this is really difficult to have the conversation when you won't listen.”
• Both Dann and Grey were talking over each other at times.
• Dann stated at the end of the interview “I'm sorry for interrupting,” and explained he was doing so as he “trust[s] the medical science.” He also thanked Grey at the end of the interview and said he appreciated her coming on the show.

[17]  We acknowledge the complainants’ concerns about this interview and that some listeners will have found Dann’s approach rude and disrespectful. However, in the context, we do not consider that the interview went beyond the level of robust scrutiny that could reasonably be expected in an interview with Grey on this particular subject.

[18]  Broadcasters have an obligation to protect the public from being significantly misinformed.¹³ In this case, the interviewee was arguing against medical consensus and claiming that donor blood from people who have been vaccinated may pose a risk, as well as raising concerns about the safety of the Pfizer vaccine. In these circumstances, where Grey was making comments contrary to public health advice with the potential to cause harm, it was not unreasonable in our view for Dann to have pushed back in a strong way and cut her off at times.

[19]  As noted above, Grey is a public figure with an extensive history of engaging with the media, on sometimes controversial topics. She can therefore be expected to be more comfortable and familiar with handling a challenging interview than a regular layperson. Despite the pushback she received from Dann, Grey was able to convey several key points during the course of the eight-minute interview, including:

• The baby whose parents she represented ‘was born with a congenital heart defect and it’s already had one operation.’
• The baby had contraindications for the vaccine: ‘It’s not scientific method to give a vaccine effectively by an indirect route, give a vaccine that’s not approved for people under five to a very vulnerable baby who’s got contraindications for that vaccine.’
• The baby had a unique condition, requiring caution: ‘That is why when you’ve got a very unique condition, it’s important to do additional research because the doctors are busy…’
• The parents’ view that there is insufficient evidence to assess what factors are in blood and whether it is safe for their vulnerable baby: ‘[The doctors are] not 100% confident. What they’re saying is there’s been no testing done on the blood, so they have no information to show any harm from the blood. But they haven’t done any testing and they have no testing to assess what factors are in the blood.’
• The parents’ focus was on what they considered to be best for their baby.
• ‘The reason we’re in Court is to have this discussion that needs to be had that nobody’s been having.’

[20]  We agree with the complainant that the fact the interview took place virtually has little bearing on the issues in this case – it did not appear Grey was unable to hear the questions, and her protests related to Dann’s constant interjections when she was trying to answer a question. However, while Dann clearly did not agree with Grey’s views, and was actively arguing against them, his comments did not stray into personal abuse of Grey. We note he apologised to Grey towards the end of the interview for interrupting her, and also thanked her for coming on the programme.

[21]  In the circumstances, we do not consider this interview would have resulted in the audience being left with an unfairly negative impression of Grey, or that Grey was treated unfairly to an extent which would justify limiting the broadcaster’s right to freedom of expression. Accordingly, we do not uphold the complaint that the interview was unfair to Grey.

[22]  Yardley raised concerns that Dann did not ‘demonstrate any empathy for the child or his parents, nor did he advance anything remotely like “help” for their plight.’ To the extent that Yardley’s concerns relate to unfairness to the baby or the parents, broadcasters are not required to be empathetic or supportive to people participating in or referred to in broadcasts. The host did not make any comments about the family that were personally abusive, and we do not consider the interview would have left listeners with an ‘unfairly negative’ impression of them (given Grey was the focus).

The remaining standards

[23]  The complaints also identified the balance, accuracy and children’s interests standards as having been breached. We find no breach of these standards for the following reasons:

• Balance:¹⁴ The balance standard requires broadcasters to present significant viewpoints when controversial issues of public importance are discussed during news or current affairs programmes. The complainants’ concerns primarily relate to the host’s treatment of Grey and their views that the host did not let Grey answer the questions posed. As we have found above, notwithstanding the host’s interview manner, Grey was able to convey key aspects of the parents’ views regarding their baby’s case during the course of the interview. The case also received significant coverage elsewhere.¹⁵ We do not consider the audience would have been left uninformed or unable to form their own views as a result of this particular broadcast.
• Accuracy:¹⁶ Yardley’s complaint did not identify any specific programme content as being inaccurate or misleading, instead stating broadly that it was ‘a corruption of the truth’. We do not consider the host’s manner or his pushback on Grey’s views resulted in the broadcast being inaccurate or misleading, particularly since Grey was nevertheless able to present key points of her/the baby’s parents’ position.
• Children’s Interests:¹⁷ Again, no specific arguments were made under this standard, besides noting the host did not display empathy towards the child or their parents. We do not consider this raises any issues under the children’s interests standard, which is targeted at ensuring children in the audience (rather than children participating or referred to in a broadcast) can be protected from broadcast content which might adversely affect them.

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

Susie Staley
Chair
12 April 2023   

Appendix

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

Watkins

1  Gareth Watkins’s formal complaint to RNZ – 9 December 2022

2  RNZ’s decision on complaint – 21 December 2022

3  Watkins’s referral to the Authority – 21 December 2022

4  RNZ confirming no further comment – 1 February 2023

Yardley

5  Alan Yardley’s formal complaint to RNZ – 1 December 2022

6  RNZ’s decision on complaint – 21 December 2022

7  Yardley’s referral to the Authority – 21 December 2022

8  RNZ confirming no further comment – 1 February 2023

¹ Health Navigator New Zealand “Blood Transfusion” (10 July 2022) <www.healthnavigator.org.nz>: ‘Directed donations – blood is collected from your relatives or friends. This is not recommended by the New Zealand Blood Service’
² Radio New Zealand “RNZ Editorial Policy 2021” <www.rnz.co.nz>
³ Standard 8, Code of Broadcasting Standards in New Zealand
⁴ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand, page 20
⁵ Introduction, Code of Broadcasting Standards in New Zealand, page 4
⁶ Guideline 8.1
⁷ Radio New Zealand "Morning Report" <www.rnz.co.nz>
⁸ Eva Corlett “Parents refuse use of vaccinated blood in life-saving surgery on baby” The Guardian (online ed, 30 November 2022); Logan Church “Parents refusing vaccinated blood for baby’s surgery appear in court” 1 News (online ed, 30 November 2022); “Immunisation Advisory Centre expert on parents wanting unvaccinated blood for baby’s surgery” Newstalk ZB (online ed, 30 November 2022); “Lawyer representing the parents who want unvaccinated blood for baby’s surgery ahead of Tuesday’s trial” Newstalk ZB (online ed, 30 November 2022); “Supporters outside High Court hearing on parents refusing vaccinated donor blood for baby” RNZ (online ed, 30 November 2022)
⁹ Outdoors & Freedom Party “Meet the Team” <www.outdoorsparty.co.nz>
¹⁰ Dan Satherley “Sue Grey, a lawyer spreading COVID-19 misinformation, now under investigation by Law Society” Newshub (online ed, 12 November 2021)
¹¹ Cherie Sivignon “Lawyer Sue Grey aims to win Nelson electorate seat for NZ Outdoors Party” Stuff (14 January 2020)
¹² Gavin Ogden “Local Focus: Sue Grey on Candidate Camera” NZ Herald (online ed, 28 May 2022)
¹³ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand, page 16
¹⁴ Standard 5, Code of Broadcasting Standards in New Zealand
¹⁵ See sources cited at footnote 8, above
¹⁶ Standard 6, Code of Broadcasting Standards in New Zealand
¹⁷ Standard 2, Code of Broadcasting Standards in New Zealand