Clough and Television New Zealand Ltd - 2022-053 (2 August 2022)
- Susie Staley MNZM (Chair)
- John Gillespie
- Tupe Solomon-Tanoa’i
- Aroha Beck
- Miryam Clough
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
The Authority has not upheld a complaint about an item on 1 News focusing on social-media-based misinformation, which included brief footage of an unnamed individual displaying what appeared to be convulsions in a wheelchair, and other social media material featuring influencer Chantelle Baker. The complainant argued the item reflected poorly on these individuals as it implied both were ‘spreaders of misinformation’ and, in the unnamed person’s case, ‘strongly inferred’ their injuries were not vaccine-related. The Authority did not consider the item resulted in either individual being treated unfairly, in the context of the item. The remaining standards either did not apply or were not breached.
Not Upheld: Fairness, Good Taste and Decency, Discrimination and Denigration, Balance, Accuracy
 An item on 1 News broadcast on 3 April 2022 discussed social-media-based misinformation. The item was introduced as follows, with the background graphic displaying the words ‘Fact Fake’:
There are calls for a crackdown on social media based on misinformation as New Zealand fights a wave of COVID-related conspiracy theories. Misinformation and disinformation spreads largely unchecked on social platforms. And as we saw at last month's protest, it can have catastrophic effects.
 The broadcast contained footage from the protest of the occupation at Parliament, then displayed two screens for approximately three seconds: one showing influencer Chantelle Baker’s Facebook page, the other playing footage of a person displaying what appeared to be convulsions in a wheelchair with a mic held to them. These were accompanied by a voiceover stating, ‘Misinformation is a growing problem here and overseas, and social media has an integral role.’
 Excerpts of videos from Baker’s page, showing footage from the end of the protest were then played, with the following commentary:
Reporter: Here's an example. On March 2nd, influencer Chantelle Baker shared this video with her 96,000 Facebook followers.
Baker: Police pushed over a generator that set a tent on fire. So the police caused this.
Reporter: She had no evidence and even filmed a protester lighting a fire herself, but stuck to her claim.
Baker: The police set the fire and now, they can, try and get it out.
Reporter: The next day, a retraction.
Baker: And I'm happy to be wrong. Doesn't worry me in the slightest because we're live.
Reporter: But by then, the misinformation had spread nearly as fast as the fire itself.
 The broadcast then included interviews with experts and commentators in the field regarding the harms of misinformation.
 Dr Miryam Clough complained the broadcast breached the good taste and decency, discrimination and denigration, balance, accuracy and fairness standards of the Free-to-Air Television Code of Broadcasting Practice. In summary, she submitted:
- The ‘Fact Fake’ series ‘is an overtly biased and manipulative effort to discredit New Zealanders with genuine concerns. It is devoid [of] accuracy, fairness, and balance.’
- TVNZ’s persistent ‘anti-vaxxer’ narrative is offensive and misleading, and the use of the particular clip of the woman, in the context, was ‘callous’ and in ‘extremely poor taste’.
- The broadcast ‘strongly inferred’ the unnamed individual’s injuries (in the video shown) ‘are not vaccine related, that [their] page is a scam, and that [they]… by virtue of their association with the four individuals named, are spreaders of misinformation.’ ‘To use a clip of a young [individual] who had the vaccine and was seriously injured by it is both disingenuous and callous.’
- TVNZ has ‘persisted in allowing and upholding a high standard of condemnation … against New Zealanders who have legitimately expressed their religious, cultural, and political views about the government’s covid response’. By doing so, ‘TVNZ has actively contributed to the creation of a two-tier society in New Zealand by denigrating a significant and diverse sector of the population.’ Further, ‘Standard 6 is no longer fit for purpose as it is being actively used by TVNZ to justify and promote discrimination.’
- There are various safety issues with the Comirnaty COVID-19 vaccine and this is ‘unquestionably a controversial issue’.
- ‘If TVNZ’s reporting was balanced, TVNZ would be investigating the unprecedented number of adverse reactions and deaths proximate to the Covid vaccines reported both to Medsafe/CARM and to NZDSOS.’
- The broadcast treated the unnamed individual in the video and their mother unfairly by ‘accusing them of being “some of the worst spreaders of misinformation".’
 The complainant argued the entirety of the ‘Fact Fake’ news series on 1 News breached standards, but focused their complaint on the item broadcast on 3 April 2022 within 1 News. Formal complaints must be sufficiently specific about a broadcast in order to enable the broadcaster (and the BSA in the event a referral is made) to meaningfully address the complaint, as required under s 6(1) of the Broadcasting Act 1989. As the complaint has focused on an item within the 3 April 1 News broadcast, we have limited our decision to that broadcast.1
The broadcaster’s response
 Television New Zealand Ltd did not uphold the complaint for the following key reasons:
- Good Taste and Decency: ‘The issue of misinformation and disinformation is one which is in the public interest to discuss. The footage complained about was fleeting and unlikely to be noticed by the casual viewer and the person were not highlighted or discussed in any way in the story. The focus of the image was Chantelle Baker's Facebook page. TVNZ does not agree the footage was offensive or disturbing in this context.’
- Discrimination and Denigration: People opposed to vaccination, vaccine mandates and lockdowns are not included in the recognised prohibited grounds of discrimination.2 In any event ‘the story comprised factual information and comment, analysis or opinion, which the standard is not intended to prevent. There was no material in the Programme that expressed a high level of condemnation of the groups referred to in the story.’
- Balance: Social media-based misinformation is widely accepted as a problem; it is not controversial. Neither are issues regarding the safety of the COVID-19 vaccine. The topic of the unnamed individual shown was not ‘discussed’. Therefore the standard was not triggered as no controversial issue of public importance was discussed.
- Accuracy: No allegation was made ‘that a material point of fact is inaccurate in the programme.’
- Fairness: Regarding the footage of the individual, ‘The shot was primarily to draw attention to Chantelle Baker's feed and the misinformation-fuelled videos she produces. In the foreground we had Chantelle's page, and in the background we were playing some of her videos, including the one [seen]’. ‘Baker is known for spreading Covid related conspiracy theories, and the story goes on to explain one instance where she spread misinformation about the actions of police at the Wellington Anti-Covid mandate protests.’
- TVNZ further noted ‘a number of health experts have questioned [the unnamed individual’s Givealittle] page's legitimacy with some medical professionals calling it a scam. The page was amended to reflect that [their] doctors have not yet conclusively determined if all [their] symptoms are a reaction to the vaccine or not - it was previously stated on the page that doctors had confirmed this.’
The relevant standard
 In our view, the fairness standard is the most relevant to the complainant’s concerns, so we have focused our decision accordingly.
 The fairness standard3 states broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. It protects the dignity and reputation of those featured in programmes, and ensures individuals and organisations are dealt with justly and fairly and protected from unwarranted damage.4
 We have briefly addressed the remaining standards nominated at paragraph  below.
 We have watched the broadcast and read the correspondence listed in the Appendix.
 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 against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.5
 The value of the programme is high given it concerns misinformation relating to the current COVID-19 pandemic. The programme was addressing the known issue of misinformation and the harms it can cause.6 This carries significant value and therefore the level of harm justifying regulatory intervention needs to be correspondingly high.
 The complainant has alleged the unnamed individual in the video and their mother were treated unfairly in the broadcast. We note the complainant and TVNZ also referred to other people in their submissions, but as none of these people were ‘referred to’ in the broadcast (with the exception of Baker, who we will address shortly), the fairness standard does not apply to them.
 The complainant alleged the inclusion of a clip showing the unnamed individual displaying what appears to be convulsions in their wheelchair gave the implication that the individual’s symptoms, or the cause of symptoms, were fake.
 Firstly, we note there were a wide range of inferences available to an audience from the inclusion of the clip. The clip was on-screen for three seconds alongside a graphic scrolling through Baker’s Facebook page. In this context, the majority of viewers, who would have been unaware of the particular individual, would have taken little notice of the footage and understood the item as a whole as a report on the harms of social media based misinformation, using the occupation at Parliament as an example. To that extent, Baker was the focus of the programme. From this perspective, the footage was used to illustrate Baker’s influencer status.
 In support of this view, we note the voiceover accompanying the footage was not directly linked to the footage. To the contrary, Baker was identified in the broadcast and the report immediately moves to focus on Baker’s livestream footage. The audience was likely to understand the reference to misinformation to be a reference to Baker’s claims regarding the cause of the fire at Parliament (and later retraction of such claims). The unnamed individual was therefore not affected by the broadcast, let alone adversely affected.
 To the extent viewers shared the complainant’s impression of the broadcast, and were aware of the unnamed individual’s background (given the broadcast does not identify or specifically refer to the individual), we do not consider the individual was treated unfairly.
 It is well established the threshold for finding unfairness is higher for a public figure used to being the subject of robust scrutiny and regular media coverage. It is also commonplace for public figures to be criticised without it giving rise to an expectation of participation in every broadcast.7 In this case, we understand the individual put themselves in the public spotlight. The footage used in the broadcast was publicly available on Facebook, and the reporter’s comments related to this footage.
 We do not consider the broadcast reached the high threshold justifying regulatory intervention. Any potential impact upon the individual was outweighed by the right to freedom of expression, given the high public interest in this broadcast. In reaching this finding, we also note:
- The broadcast did not refer to any claim made by the individual; it did not refer to the disorder or its cause (which we understand is the subject of some controversy). The fleeting reference it did make, by use of the footage, constituted three seconds in a split-screen visual (diverting audience attention) alongside Baker’s Facebook page (the ‘subject’ of the report) in the context of a 3.15min item.
- Audience members who were aware of the individual would have also been aware of the associated controversy. In this respect, to those who would already be familiar with the issue, the inclusion of the footage may represent an example of misinformation gaining credence due to social media depending on their own view of the issue (as it is through social media the individual became a public figure).
- The individual’s mother is less well known and was not the focus of the footage (she is seen holding the microphone for the individual). For similar reasons, we do not consider she was treated unfairly.
 For completeness, we also do not consider Baker was treated unfairly as:
- While she was referred to in the broadcast, and it was suggested she spread misinformation, this was all taken from publicly available information on her Facebook page.
- Baker is a high-profile media figure who has been the subject of frequent media coverage and commentary, particularly in relation to COVID-19 related misinformation.8 Baker can reasonably expect her actions to be scrutinised by the media.
- The item was clear she had ‘issued a retraction’ regarding one video which blamed police for starting a fire at the Parliament protest.
 We consider the remaining standards either did not apply or were not breached:
- Good taste and decency:9 the standard states current norms of good taste and decency should be maintained, consistent with the context of the programme. The standard is intended to protect audiences from content likely to cause widespread undue offence or distress, or undermine widely shared community standards.10 The complaint under this standard appears to relate to TVNZ’s allegations towards the individual and Baker. We do not uphold the complaint under this standard for the reasons outlined above, under the fairness standard.
- Discrimination and denigration:11 the standard applies only to recognised ‘sections of the community’, consistent with the grounds for discrimination listed in the Human Rights Act 1993.12 As we have previously found, people who oppose or who have concerns about the COVID-19 vaccine are not a ‘recognised section of the community’ to which the standard applies.13
- Balance:14 the standard ensures competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.15 The standard only applies to news, current affairs and factual programmes, which discuss a controversial issue of public importance.16 The complaint alleges the broadcast was unbalanced as it did not investigate safety issues regarding the COVID‑19 vaccine, to the individual specifically and the population more broadly. We do not consider these issues were ‘discussed’ as envisaged by the standard; the balance standard therefore does not apply.
- Accuracy:17 the purpose of the accuracy standard is to protect the public from being significantly misinformed.18 It states broadcasters should make reasonable efforts to ensure that any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead. The complaint under this standard largely relates to the safety of the COVID-19 vaccine. As noted above, there is a consensus amongst medical authorities regarding the vaccine’s safety. We do not consider the item was materially inaccurate or misleading in highlighting the issue of COVID-related misinformation.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
2 August 2022
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Dr Miryam Clough’s formal complaint to TVNZ – 3 April 2022
2 TVNZ’s response to the complaint – 2 May 2022
3 Dr Clough’s referral to the Authority – 20 May 2022
4 TVNZ’s response to referral – 1 June 2022
5 Dr Clough’s final comments – 3 June 2022
6 TVNZ’s final comments – 7 July 2022
1 See Supreme Sikh Council of New Zealand & Supreme Sikh Society of New Zealand and Radio Virsa, Decision No. 2015-082
2 Referring to s 21 of the Broadcasting Act 1989 and Laroche & Breed and Television New Zealand Ltd, Decision No. 2021-132
3 Standard 11, Free-To-Air Television Code of Broadcasting Practice
4 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
5 Freedom of Expression: Broadcasting Standards in New Zealand Codebook, page 6
6 See Classification Office | Te Mana Whakaatu The Edge of the Infodemic: Challenging Misinformation in Aotearoa (Wellington, 2021)
7 Walls and Radio New Zealand Ltd, Decision No. 2022-025 at 
8 See, for example, David Fisher “Analysis: False information is so out of hand that it should be a national security issue” New Zealand Herald (online ed, 18 May 2022); Alison Mau “The battle of Portaloo, and other reckons” Stuff (online ed, 6 March 2022); and Dylan Reeve “When misinformation spreads like fire” The Spinoff (online ed, 3 March 2022)
9 Standard 1, Free-To-Air Television Code of Broadcasting Practice
10 Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
11 Standard 6, Free-To-Air Television Code of Broadcasting Practice
12 Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
13 Laroche & Breed and Television New Zealand Ltd, Decision No. 2021-132 at 
14 Standard 8, Free-To-Air Television Code of Broadcasting Practice
15 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
16 As above
17 Standard 9, Free-To-Air Television Code of Broadcasting Practice
18 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18