BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary  

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

The Authority has not upheld a complaint about two broadcasts on The OARsome Morning Show and The Afro-Caribbean Show respectively on OAR FM Dunedin, where the hosts shared their experiences of receiving the COVID-19 booster vaccine, and encouraged the audience to get vaccinated. The complainant alleged the broadcasts breached the accuracy and balance standards as they did not mention the risk of adverse reactions. The Authority found that the broadcasts did not imply any side effects would be minimal/non-existent and were not misleading by omitting mention of potential adverse reactions. The balance standard did not apply as the broadcasts did not discuss a controversial issue of public importance.

Not Upheld: Accuracy, Balance

The broadcasts

[1]  On OAR FM Dunedin’s OARsome Morning Show on 24 January 2022 at 8am, the host spoke about New Zealand’s move to the Red Traffic Light setting as part of the COVID-19 Protection Framework, which had come into effect the previous evening. The host explained what ‘Life at Red’ entailed, including rules for mask-wearing and vaccine passes. Later in the programme, the host spoke about the importance of getting a vaccine booster shot, and encouraged people to get one:

Why should we do it? Well, everyone over the age of 18 and over who has been fully vaccinated for at least four months is advised to get this free booster now. Speeding up the booster rollout is one of several ways that Government officials are protecting Aotearoa New Zealand from the Omicron variant of Covid-19 at the moment, and while the two-dose course provides some protection against severe disease from the Omicron variant, a booster is much more likely to offer greater protection by reducing the chance of more serious infection and the risk of transmitting it to others.

So, there you go. If it’s been on your to-do list, if you know it’s been four months since your second jab, then now’s the time to get your booster shot. Get it, and get it done and I’ll tell you what, I had it done on Friday and, a bit of a sore arm, felt a little bit grotty on Saturday, nothing to worry about at all. Just allow yourself a little bit of time for rest and you’ll be sweet-as and ready to go and ready to cope physically with Omicron should it come your way. Let’s hope it doesn’t. Let’s keep up all those good practices around mask wearing, scanning in, regularly washing our hands - all of those things that we learnt right at the very start of this pandemic. They still all apply and perhaps now if we’re even more vigilant about it we can do a lot to keep Omicron at bay, and maybe not even touch our household at all. So, see what you can do. Get your booster shot if you’re due for it.

[2]  On the Afro-Caribbean Show on 28 January 2022 at approximately 9.30pm, the host also made some brief comments encouraging people to get vaccinated:

I just want to remind you folks, if you haven’t had your first or second vaccines, please go do it. It’s not a big deal. I’m speaking from personal experience - I can’t guarantee that there aren’t negative side effects - but billions of people have had the jab now. Multiple jabs. I had my booster today. I’m telling you, you might feel a bit crook afterwards and you might not, but it’s a lot better than coming down with this thing that’s been circulating around for two years now and is taking literally millions of lives. Don’t let yours be one of them, OK?

The complaint

[3]  Nigel Yates complained that the two broadcasts breached the accuracy and balance standards:

• In relation to the OARsome Morning Show, ‘The part which caused me most concern was when the presenter was extolling the virtues of receiving the Pfizer booster and said that apart from feeling a little ‘grotty’ (I think that was his terminology) the next day, it was a positive experience (or words to that effect).’
• In relation to the Afro-Caribbean Show, ‘the presenter did a similar positive spin about being injected with the Pfizer product and strongly implied any side effects would be minimal.’
• He considered this amounted to medical advice as ‘It was clear on both occasions that the idea was to encourage people to receive the Pfizer product and cancel any doubts they may have about its safety.’
• ‘When a medical procedure is being recommended there is a standard principle called ‘informed consent’ which was absent in this case.’
• The safety of the vaccine is ‘easily disproved by reference to the CARM database on the Government's Medsafe website, which to date (February 2022) has recorded 147 post-injection deaths and almost 52,000 adverse events, 2460 which are regarded as serious.’
• It was of concern that the broadcasts did not mention possible adverse reactions, of which he had also heard numerous anecdotes in the Dunedin community, including anaphylaxis, brain fog and chest pain.

The broadcaster’s response

[4] Otago Access Radio did not uphold the complaints. It noted:

• ‘The information shared by the host of the OARsome Morning Show on the day in question was sourced from the Government website covid19.govt.nz, summarising the key implications for all New Zealanders of the ‘Life at Red’ settings that had come into effect at 11.59pm the previous evening. Included in that was information, sourced and worded from the same website, about how to check if a vaccination booster was due, and how to arrange a booster vaccination.’
• It considered the host’s comments about his own experience of receiving a booster to have been a personal view.
• ‘The comments made by the host of the Afrocaribbean Show amounted to a reminder of the fact that vaccinations were available and that uptake around the world was significant. Also mentioned was the fact that the virus had taken millions of lives. In relating his own experience of receiving a booster vaccination, he also stated “I can’t guarantee that there aren’t negative side-effects.”’
• It disagreed that ‘offering our listeners gentle encouragement to take up the opportunity to be vaccinated and through offering some reassurance on the likely effects of that (based on the described effects on the programmes’ hosts)’ amounted to the hosts providing medical advice.
• In relation to Yates’ concerns about ‘informed consent’ being absent, it noted ‘At no stage did either host state or imply that vaccinations were mandatory for the general population.’
• ‘Neither of the programmes in question (a 90-minute magazine-style morning show and a 60-minute music show) have a track record of providing comprehensive analysis of health matters, and no listener tuning in on the days in question was primed to expect in-depth coverage of reported side-effects of the Pfizer vaccine.’

The standards at issue

[5]  The accuracy standard states 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.¹ Its purpose is to protect the public from being significantly misinformed.²

[6]  The balance standard³ ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.⁴ The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.⁵

Our analysis

[7]  We have listened to the broadcasts and read the correspondence listed in the Appendix.

[8]  In considering complaints, our starting point is the right to freedom of expression, including the broadcaster’s right to impart ideas and information and the public’s right to receive that information. Equally important is our consideration of the level of actual or potential harm that may be caused by the broadcast. We may only intervene and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.

Accuracy

[9]  The accuracy standard only applies to ‘news, current affairs and factual programmes’. Noting the subject matter of the particular broadcasts and the broadcaster’s submission that part of OAR’s role in a pandemic is to ‘broadcast freely available public information to our diverse local audiences’ we accept that the segments in question constituted current affairs and factual programmes for the purposes of the standard.

[10]  Audiences may be misinformed in two ways: by incorrect statements of fact within the programme; and/or by being misled by the programme as a whole.⁶ In this case, we have focused our deliberations on the latter requirement to ensure the programmes were not ‘misleading’. Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’⁷ Programmes may be misleading by omission.⁸

[11]  The complainant has alleged the audience would be misled by the hosts of both programmes:

• implying any side effects of getting the booster shot would be non-existent/minimal
• encouraging people to get the vaccination without mentioning the possibility of adverse reactions.  

[12]  We do not consider the broadcasts misleading in either of those respects:

• Both hosts spoke of their personal experience in getting the vaccine. Reasonable listeners are likely to understand that people’s experiences with the vaccine may be different. In addition, with regard to the Afro-Caribbean Show, the host expressly commented that he ‘can’t guarantee that there aren’t negative side effects,’ and ‘you might feel a bit crook afterwards and you might not.’
• The host of the OARsome Morning Show was reiterating advice issued by the New Zealand Government that people receive a booster dose to protect against the Omicron variant.⁹
• The hosts did not claim the vaccine did not cause any side effects or caused only minimal side effects.
• The vaccine’s safety has repeatedly been accepted by medical authorities around the world,¹⁰ (and acknowledged by us in previous decisions, although focusing on different aspects).¹¹ These authorities are all well placed to evaluate the relevant science and inform policy decisions.
• As the vaccine’s safety is accepted by medical authorities, the omission of references to side effects does not make the broadcast misleading or otherwise inaccurate. We are conscious many vaccines and medicines cause side effects in some people and the question of safety for the public generally does not rely on excluding the risk of any side effects, but rather undertaking a risk-benefit analysis to ensure the safety profile is acceptable.¹²
• With regard to the complainant’s reliance on Medsafe’s ‘CARM’ database, we note Medsafe publishes regular adverse event reports (an important part of the ongoing safety monitoring of the vaccine). However, as indicated in the most recent report as at the date of this decision:¹³
  (a)  The database provides information on reports of adverse events following immunisation. While an adverse event may follow vaccination, it ‘does not necessarily have a causal relationship with the administration of the vaccine’.
  (b)  Out of 10,941,275 total vaccine doses administered, there were 60,972 total adverse event reports from which 1 safety issue has been identified.
• OAR FM Dunedin is a non-profit Community Access radio station, and the OARsome Morning Show is a ‘magazine-style’ show featuring music, interviews and feature segments.¹⁴ Its audience would not expect it to contain comprehensive health advice and canvas all aspects of the safety of the booster shot.

[13]  Accordingly, we find that the broadcasts did not breach the accuracy standard.

[14]  With regard to Yates’ concerns that the hosts were providing medical advice, we do not consider that the hosts reiterating Government recommendations in relation to receiving the booster constitutes providing medical advice. We also note that, in a medical context, ‘informed consent,’ refers to the interactive process between a doctor and a patient to help the patient gain an understanding about their condition and to make an informed decision about their care,¹⁵ which is not relevant here.

Balance

[15]  The balance standard¹⁶ requires reasonable efforts to be made to reflect significant perspectives when ‘controversial issues of public importance’ are discussed in news, current affairs or factual programmes.¹⁷ We have previously held the safety of the COVID-19 Pfizer vaccine is not a controversial issue for the purposes of the standard due to consensus about its safety.¹⁸ The same applies here.

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

Susie Staley
Chair
18 May 2022

Appendix

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

1  Nigel Yates’ complaint to OAR FM Dunedin – 2 February 2022

2  OAR FM’s decision on complaint – 22 February 2022

3  Yates’ referral to the Authority – 25 February 2022

4  Yates confirming broadcasting standards complained under - 1 March 2022

5  OAR FM’s further comments on referral – 7 March 2022

6  Yates’ further comments – 12 March 2022

7  OAR FM confirmation of no further comments – 17 March 2022

¹ Standard 9 of the Radio Code of Broadcasting Practice
² Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
³ Standard 8 of the Radio Code of Broadcasting Practice
⁴ Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
⁵ As above
⁶ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁷ Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110
⁸ Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
⁹ Ministry of Health | Manatū Hauora “COVID-19 vaccine: Boosters” (Updated 7 April 2022) <www.health.govt.nz>
¹⁰ Unite against COVID-19 | Mā tātau katoa e ārai atu te COVID-19 “What you need to know about the Pfizer vaccine” (10 January 2022) New Zealand Government | Te Kāwanatanga o Aotearoa <covid19.govt.nz>, World Health Organisation “Safety of COVID-19 Vaccines” (31 March 2021) and “Coronavirus disease (COVID-19): Vaccines safety” (24 January 2022) <who.int>; Australian Government Department of Health “COVID-19 vaccine safety and side effects” (28 February 2022) <health.gov.au>; Johns Hopkins Medicine “Is the COVID-19 Vaccine Safe?” (4 January 2022) <hopkinsmedicine.org>
¹¹ For safety generally: Donald and Television New Zealand Ltd, Decision No. 2021-033 at [15]–[18]; for safety for pregnant people: Marshall and Television New Zealand Ltd, Decision No. 2021-138; Bright and Discovery NZ Ltd, Decision No. 2021-152; New Zealand; NZDSOS Inc and Television New Zealand, Decision No. 2022-005
¹² Medsafe “Medsafe's Evaluation and Approval Process” (12 September 2019) <medsafe.govt.nz> at “How is the safety of a medicine established before it is approved for use in New Zealand?”
¹³ Medsafe “Adverse events following immunisation with COVID-19 vaccines: Safety Report #42 – 31 March 2022” (13 April 2022) <www.medsafe.govt.nz>
¹⁴ OAR FM Dunedin “OARsome Morning Show” <www.oar.org.nz>
¹⁵ Medical Council of New Zealand | Te Kaunihera Rata o Aotearoa “Informed Consent: Helping patients make informed decisions about their care” (June 2021) <www.mcnz.org.nz>
¹⁶ Standard 8 of the Radio Code of Broadcasting Practice
¹⁷ Guideline 8a
¹⁸ Donald and Television New Zealand Ltd, Decision No. 2021-033 at [15]–[18]; Marshall and Television New Zealand Ltd, Decision No. 2021-138 at [14]