Donald and Television New Zealand Ltd - 2021-033 (2 August 2021)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- Hugh Donald
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
The Authority has not upheld a complaint about an item on Seven Sharp in which Hilary Barry made comments about the safety of the COVID-19 Pfizer vaccine and about ‘anti-vaxxers’, including suggesting those who do not want to be vaccinated could ‘jump on a ferry and go to the Auckland Islands for a few years, and then when we’ve got rid of COVID-19…come back’. The complaint alleged these comments breached the good taste and decency, discrimination and denigration, balance, accuracy and fairness standards, by suggesting the safety of the vaccine was almost without question, and denigrating those with a different view. The Authority found Ms Barry’s comments were unlikely to cause widespread undue offence or distress or undermine widely shared community standards. It found the broadcast did not address a controversial issue so the balance standard did not apply. The fairness, discrimination and denigration and accuracy standards also did not apply or were not breached.
Not Upheld: Good Taste and Decency, Balance, Fairness, Discrimination and Denigration, Accuracy
 In an item on Seven Sharp, broadcast by TVNZ on 16 February 2021, hosts Hilary Barry and Jeremy Wells interviewed vaccinologist Helen Petousis-Harris, and Ms Barry made comments about the safety of the COVID-19 Pfizer vaccine and about ‘anti-vaxxers’:
Ms Barry: We also had a chat to Helen off-air about whether we should feel confident in this vaccine, and she and her colleagues have done a lot of reading of all the data that's available. And there's more data coming in over time. And she is very confident that the vaccine is both safe and effective and that we all should have it. She says it's good enough for her. It's certainly good enough for me…I know the hate mail will be coming in now from the anti-vaxxers, ‘Oh, Hilary Barry, she's paid by Big Pharma to be pro-vaccine. No, I'm not.
Mr Wells: [Laughing] Are you sure?
Ms Barry: I just care about people, and if you care about people you should get vaccinated. I think maybe the anti-vaxxers, and we do know that there are those small number of people who can't be vaccinated, they’re to one side, the immunocompromised, of course. But those who actively follow what Rochelle on Facebook said about her next-door neighbour having an adverse reaction to it, don't follow what Rochelle said on Facebook. Just get yourself vaccinated. Maybe those who don't want to be vaccinated could jump on a ferry and go to the Auckland Islands for a few years. And then when we've got rid of COVID, you can all come back.
Mr Wells: Facebook’s been telling me some very interesting information about not vaccinating.
Ms Barry: Stop it, this is the problem. If you want to research, research. But make sure you read reputable reports, not Facebook…
 Hugh Donald complained these comments breached the good taste and decency, discrimination and denigration, balance, accuracy and fairness standards, suggesting the safety of the vaccine was almost without question, and denigrating those with a different view:
- ‘[Ms Barry’s] comments were extremely discriminatory and degrading of those that have concerns about vaccinations. Suggesting that they should leave the country or go and live for a few years on an island shows her lack of good taste, decency, and discrimination of those with a different view.’
- ‘Her physical actions along with her comments show unacceptable and unsatisfactory [imbalance] on…an important topic’.
- ‘The way she suggested that the safety of this vaccination is almost without question was totally inaccurate, especially as she neither [speaks] as one with either scientific or medical qualifications, or gave a fair opportunity to opponents.’
- ‘I believe her actions and comments will result in some being driven away, even further, from good logical and serious consideration of this and other vaccinations.’
- ‘The fact is there is extreme opposition by some, and ridicule gets us nowhere.’
- ‘Personally, I am not an anti-vaxxer and I am trying to encourage those concerned or anti to consider the matter seriously. [Hilary] Barry, in my opinion, mocked them both in word and her demeanour during the broadcast.’
The broadcaster’s response
 TVNZ did not uphold Mr Donald’s complaint:
- Good taste and decency: The comments complained about were light-hearted and would have been unlikely to cause widespread undue offence or distress.
- Discrimination and denigration: Anti-vaxxers are not a recognised section of the community for the purposes of this standard and, in any case, the comments do not reach the threshold for finding a breach under this standard.
- Balance: The broadcast did not discuss a controversial issue and it was not necessary to include any material from an anti-vaccination perspective under this standard.
- Accuracy: Ms Barry’s comments about the safety of the vaccine were based on Ms Petousis-Harris’ expert opinion, and viewers were advised where this information came from so that they could form their own view on this.
- Fairness: The complaint did not identify any person or organisation taking part in the broadcast that was allegedly treated unfairly.
 The good taste and decency standard1 states current norms of good taste and decency should be maintained, consistent with the context of the programme. The standard protects audiences from content likely to cause widespread undue offence or distress, or undermine widely shared community standards.2
 The balance standard3 states when controversial issues of public importance are discussed 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. The purpose of this standard is to ensure competing viewpoints about significant issues are presented to enable the audience to arrive at an informed and reasoned opinion.4
 The fairness standard5 protects the dignity and reputation of those featured in programmes. The objective in assessing fairness is to weigh the broadcaster’s right to freedom of expression against the right of individuals and organisations to be treated fairly.
 The discrimination and denigration standard6 states that broadcasters should not encourage discrimination against, or denigration of, any section of the community on account of sex, sexual orientation, race, age, disability, occupational status or as a consequence of legitimate expression of religion, culture or political belief. ‘Discrimination’ is defined as encouraging the different treatment of the members of a particular section of the community, to their detriment.7 ‘Denigration’ is defined as devaluing the reputation of a particular section of the community.8
 The accuracy standard9 protects the public from being significantly misinformed.10 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.
 We have watched the broadcast and read the correspondence listed in the Appendix.
 We have also considered the right to freedom of expression, which is our starting point. This includes the broadcaster’s right to offer a range of information and the audience’s right to receive it. We may only intervene and uphold a complaint where the broadcast has caused actual or potential harm at a level that outweighs the right to freedom of expression. For the reasons outlined below, we have not found such harm in this case.
Good taste and decency
 The question for the Authority under this standard is whether the comments made by Ms Barry were likely to cause widespread undue offence or distress, or undermine widely shared community standards.11
 Context is always relevant when determining a complaint under this standard.12 In this case, the following contextual factors were identified:
- Seven Sharp is aimed at an adult audience and provides alternative commentary on news and current affairs.
- Audiences expect a level of humour and satire from Ms Barry and Mr Wells, and expect them to express their opinions, occasionally in an irreverent or provocative way.
- The item included an interview with vaccinologist Ms Petousis-Harris, and Ms Barry’s comments were made subsequent to and in light of Ms Petousis-Harris’s advice.
- Ms Barry’s comments were not graphic or malicious.
- Ms Barry’s comments were punctuated by laughter and sarcastic remarks from Mr Wells.
- The focus of the item, raising awareness about the COVID-19 Pfizer vaccine, was a matter of significant public interest.
 We acknowledge the complainant’s concerns. There was some flippancy in Ms Barry’s comments. However, having regard to these factors, and in particular audience expectations of Seven Sharp and of Ms Barry and Mr Wells as hosts, we consider the comments were unlikely to cause widespread undue offence or distress or undermine widely shared community standards.
 Accordingly, we do not uphold the complaint under this standard.
 For the balance standard to apply, the subject matter of the broadcast must be an issue of ‘public importance’, it must be ‘controversial’ and it must be ‘discussed’ in a news, current affairs or factual programme.13
 An issue of public importance is something that would have a significant potential impact on, or be of concern to, members of the New Zealand public.14 A controversial issue will be one which has topical currency and excites conflicting opinion or about which there has been ongoing public debate.15
 We note the safety of the COVID-19 Pfizer vaccine (the subject of the comments complained about) has been established by medicine safety authorities and health science authorities in New Zealand,16 and around the world.17 In this light, we do not consider the safety of the Pfizer vaccine to be a controversial issue for the purposes of the balance standard, although some people may continue to hold different views about it.
 Accordingly, the balance standard does not apply.
 The fairness standard is concerned with preventing undue harm to the dignity and reputation of any person or organisation taking part or referred to in a programme.18 The question is whether opponents of COVID-19 vaccinations, or ‘anti-vaxxers’, amount to an organisation for the purposes of the standard.
 The Cambridge Dictionary defines ‘organisation’ as ‘a group of people who work together in an organized way for a shared purpose’. Previously we have applied the standard to established groups, such as political parties,19 lobby groups,20 government agencies,21 businesses22 and organised protest groups.23
 In comparison to these groups, this complaint concerns a loose category of people who oppose or have concerns about vaccinations. We consider this group does not constitute an ‘organisation’ for the purposes of the standard.
 Accordingly, the fairness standard does not apply.
 We consider the remaining standards either did not apply or were not breached:
- Discrimination and Denigration:24 This standard applies only to recognised ‘sections of the community’, which is consistent with the grounds for discrimination listed in the Human Rights Act 1993.25 Like other broad groups previously considered by the Authority, we do not consider ‘anti-vaxxers’ are a ‘recognised section of the community’ to which the standard applies.26 In any event, for the reasons outlined in paragraph  above, the relevant comments did not involve the high level of condemnation necessary for finding a breach under this standard.27
- Accuracy:28 Ms Barry’s comments were distinguishable as analysis, comment or opinion, to which the requirement for factual accuracy does not apply.29 The broadcast was otherwise not materially inaccurate or likely to mislead.
For the above reasons, the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
2 August 2021
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Hugh Donald’s original complaint – 16 February 2021
2 TVNZ’s decision on the complaint – 15 March 2021
3 Mr Donald’s referral to the Authority – 31 March 2021
4 TVNZ’s confirmation of no further comment – 16 April 2021
1 Standard 1 of the Free-to-Air Television Code of Broadcasting Practice
2 Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
3 Standard 8 of the Free-to-Air Television Code of Broadcasting Practice
4 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
5 Standard 11 of the Free-to-Air Television Code of Broadcasting Practice
6 Standard 6 of the Free-to-Air Television Code of Broadcasting Practice
7 Guideline 6a
8 As above
9 Standard 9 of the Free-to-Air Television Code of Broadcasting Practice
10 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
11 Commentary: Good Taste and Decency, Broadcasting Standards in New Zealand Codebook, page 12
12 Guideline 1a
13 Guideline 8a
14 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
15 As above
16 Ministry of Health “COVID-19: Assessing and approving the vaccines” <www.health.govt.nz>
17 World Health Organization “The Pfizer BioNTech (BNT162b2) COVID-19 vaccine: What you need to know” <www.who.int>; Centers for Disease Control and Prevention “Pfizer-BioNTech COVID-19 Vaccine Overview and Safety” <www.cdc.gov>; Johns Hopkins “Is the COVID-19 Vaccine Safe?” <www.hopkinsmedicine.org>
18 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21
19 See for example Morton and Radio New Zealand Ltd, Decision No. 2020-150 or Wilding and Discovery NZ Ltd, Decision No. 2020-161
20 See for example Andrews & Murray and Radio New Zealand Ltd, Decision No. 2020-153
21 See for example Davis and Radio New Zealand Ltd, Decision No. 2019-061
22 See for example Real Nappies Ltd and Television New Zealand Ltd, Decision No. 2020-148
23 See for example Honour the Maunga and Radio New Zealand Ltd, Decision No. 2020-049
24 Standard 6 of the Free-to-Air Television Code of Broadcasting Practice
25 Commentary: Discrimination and Denigration, Broadcasting Standards in New Zealand Codebook, page 16
26 See for example Foster and Television New Zealand Ltd, Decision No. 2017-009 at ; Swinney and Radioworks Ltd, Decision No. 2014-021 at ; Truijens and Radio New Zealand Ltd, Decision No. 2019-012 at .
27 Guideline 6b
28 Standard 9 of the Free-to-Air Television Code of Broadcasting Practice
29 Guideline 9a