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 a segment on Paddy Gower Has Issues breached the accuracy, balance and fairness standards of the Code of Broadcasting Standards in New Zealand. The segment included Gower stating he had ‘no issues’ with genetically modified corn, and that the effective ban on GE should be removed. The Authority did not uphold the complaint, finding the statements amounted to Gower’s opinion and that the alleged inaccuracy was not materially misleading and would not have impacted the audience’s understanding of the broadcast as a whole. The Authority also found under balance that the segment was clearly intended to provide a particular perspective (Gower’s) on the topic.  While the segment did include a brief image of GE-Free NZ’s logo, the Authority found in the context of the broadcast, the complainant’s participation was minor, and therefore there was no obligation to notify the complainant or provide an opportunity for the complainant to comment.

Not Upheld: Accuracy, Balance, Fairness

The broadcast  

[1]  During an episode of Paddy Gower Has Issues (PGHI) broadcast on 15 November 2023, the host, Gower, spoke on a topic he had ‘no issues with’. The dialogue of this segment, titled ‘No Issues’, was as follows:

Welcome back Kiwis, I’m Paddy Gower and this is my show, called Paddy Gower Has Issues… What is actually spot on in the country right now? It's time for ‘No Issues’.

I've got no issues with corn. Give me your ears. Obviously, I’ve got no issues with normal corn. Who would? But I've also got no issues with genetically modified corn. That means new species of corn created in the lab. Twenty-two years ago, we were scared of corn. [Image shown on-screen of an ear of corn with GE-Free NZ’s logo in front of it.] Something called ‘Corngate’ divided our nation – when we found out that genetically modified corn had been released here. It was like we'd unleashed Frankenstein – or Fran-corn-stein.

We pretty much banned genetic modification after that, and nobody here has given it a go since. But the rest of the world got bloody stuck in and GM corn has been created to resist drought and to kill devastating pests that I hate like corn earworms, root worms - I hate them - and of course I hate the dreaded European corn borer.

And what's gone wrong, though, in all these decades of global genetic modification? Well, not one three-eyed fish has appeared, nothing [image on-screen of three-eyed fish taken from The Simpsons]. And meanwhile, our scientists and businesses here are crying out to be able to bring New Zealand agriculture into the 21st century. Imagine creating grasses that reduce emissions from animals that eat them. That would solve one of our biggest problems.

Right now, though, we can't even try. So there's a brain drain, smart people are taking their nous and talent overseas where they can get involved. And now that the National Party has taken power, they did promise to end this ban on GM. So just bloody do it, you lot. We pride ourselves on things like nuclear-free and being anti stuff, but this GM ban is the wrong one and 20 years is way too long to get over it.

That's why I've got no issues with genetically modified corn and with genetic modification.

The complaint

[2]  GE Free NZ in Food & Environment Inc (GE-Free NZ) complained the broadcast breached the balance, accuracy and fairness standards of the Code of Broadcasting Standards in New Zealand. The complainant’s arguments can be summarised as follows:

Balance 

• The debate over GE regulation is ‘complex and long running’.
• The broadcast was unbalanced as it only provided Gower’s views on the regulation of GE. The broadcast should have included a response from GE-Free NZ in order to provide another perspective on the issue – eg support for regulation (including labelling of food) and liability on users to manage risk.
• The segment contained inaccurate information, and therefore the lack of balance would have resulted in the viewer being misled.
• While a single broadcast might not need to be balanced, broadcasters are responsible for ensuring balance over time, and the broadcaster has failed to do this.
• The most recent scientific advice supports the need for the broadcaster to act to ensure balance, not just note other perspectives exist.¹

Accuracy

• While the complainant accepted much of the segment was Gower’s opinion, ‘The boldness of [Gower’s] claims made them present as facts and the viewer would expect that these facts would be accurate’.
• ‘There were a number of factual errors’, including Gower’s statement ‘what's gone wrong, though, in all these decades of global genetic modification? Well, not one three-eyed fish has appeared, nothing.’
• This statement was ‘clearly’ wrong given the fact that there have been problems over the years, including in New Zealand where genetically modified calves were born with ‘exploding ovaries’.² 

Fairness

• ‘GE-Free NZ is the organisation of record for 20+ years in the debate targeted by Paddy Gower. The images used in the broadcast were of [GE-Free NZ’s] banner and logos, clearly inferring [GE-Free NZ’s] community public-interest group.’
• ‘GE-Free NZ requested a right of reply to appear on the broadcast to provide accuracy and balance.’

The broadcaster’s response

[3]  Warner Bros. Discovery (WBD) did not uphold the complaint for the following reasons:

Balance

• ‘While the 'No Issues' segment potentially canvassed a controversial issue of public importance, [WBD does] not agree that the issue was discussed in the manner intended by this broadcasting standard and therefore the requirement for balance was not triggered. The Broadcast did not purport to be a complete and detailed examination of the complex subject of genetic engineering. It was clearly framed as Mr Gower's opinion on the subject and [WBD] maintains viewers would not have expected an alternate viewpoint to be presented in this context.’

Accuracy

• ‘Mr Gower and the PGHI editorial team are aware of the complex and long-running nature of the debate and Mr Gower's opinion, as expressed, is that New Zealand needs changes to our regulations to allow more investigation of the potential benefits of GE’.
• ‘The “No Issues” segment is an editorial-style segment in which Mr Gower provides his opinion on issues he has no problem with. [WBD] maintains that the segment contained commentary and analysis that was readily identifiable as such.’
• ‘Research by the PGHI team showed there have been some well-publicised problems with genetic modification trials including the examples mentioned in [the] complaint. When Mr Gower stated, "And what’s gone wrong in decades of global genetic modification? Well, not one three-eyed fish has appeared. Nothing." he was pointing out that there have been no environmental or health disasters caused by genetic engineering.’
• ‘[WBD] has not identified any material errors of fact.’

Fairness

• ‘This Standard requires: Broadcasters should deal fairly with any person or organisation taking part or referred to in any broadcast.’ The complaint did not identify any individual or organisation treated unfairly, and [WBD] found no breach of this standard.
• ‘The PGHI editorial team is aware of [the complainant’s] request for a right of reply and it is not possible at this time to extend an invitation. This matter is outside the scope and control of the WBD Standards Committee.’

The standards

[4]  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 viewpoints either in the same broadcast or in other broadcasts within the period of current interest unless the audience can reasonably be expected to be aware of significant viewpoints from other media coverage.

[5]  The purpose of the accuracy standard⁴ is to protect the public from being significantly misinformed.⁵ It states broadcasters should make reasonable efforts to ensure news, current affairs or factual content is accurate in relation to all material points of fact, and does not mislead.

[6]  The fairness standard⁶ protects the dignity and reputation of those featured in programmes.⁷ It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage.

Our analysis

[7]  We have watched the broadcast and read the correspondence listed in the Appendix.

[8]  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, including 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 resulting limit on the right to freedom of expression is demonstrably reasonable and justified in a free and democratic society.⁸

Balance

[9]  Determination of a complaint under the balance standard occurs in two steps.⁹ The first step is to consider whether the programme ‘discussed’ a ‘controversial issue of public importance’. The second step is to consider whether reasonable efforts were made by the broadcaster to present relevant perspectives on this issue.

[10]  An issue ‘of public importance’ is something that would have a significant potential impact on, or be of concern to, New Zealanders. A ‘controversial’ issue is an issue of topical currency which has generated or is likely to generate conflicting opinion, or about which there has been ongoing public debate.¹⁰

[11]  The focus of the broadcast segment was Gower’s views on genetic modification (of corn in particular, although he also mentioned grasses which could reduce emissions from animals eating them), and the possibility of the ‘effective ban’ on genetic modification and genetic engineering being overturned. We have previously found discussions relating to the regulation of genetic modification and genetic engineering amounted to discussion of controversial issues of public importance.¹¹ For similar reasons to those decisions, and particularly given the new Government’s indication it intends to loosen regulation on genetic modification and genetic engineering, we consider this issue is to be one of public importance and controversial.

[12]  The next question is whether the issue in this case was ‘discussed’. 

[13]  We have previously found that the presentation of a personal view or perspective may not amount to a discussion for the purpose of the standard.¹²

[14]  However, even if the broadcast did constitute a discussion, the balance standard does not require that multiple perspectives on an issue be captured in every broadcast.¹³ The requirement to present significant points of view can be reduced, or in some cases negated, where the programme does not purport to be a balanced examination of an issue, or is signalled as approaching the issue from a particular perspective.¹⁴ A key consideration is what an audience expects from a programme and whether they were likely to have been misinformed by the omission or treatment of a significant perspective.¹⁵

[15]  Applying these considerations, we find no breach of the balance standard, on the basis that:

• The segment was clearly introduced as presenting Gower’s perspective on this issue (‘Welcome back Kiwis, I’m Paddy Gower and this is my show…’ ‘I've got no issues with corn… I've also got no issues with genetically modified corn’).
• The PGHI programme traditionally ends with Gower providing a brief opinion on the topics featured throughout the programme, or providing his views on an unrelated topic he has ‘no issues’ with.
• The brief segment did not purport to be a detailed or in-depth examination of the issue.
• In this context the audience would not have expected to hear another view.
• The issue of regulation of genetic modification and genetic engineering is long-running – as noted in the broadcast over more than 20 years – and is a topic that the audience could reasonably be expected to be aware of in terms of the main perspectives on the issue (noting that Gower acknowledged there were differing views during the broadcast).
• The standard allows for balance to be achieved over time within the period of current interest.¹⁶ It does not require every significant viewpoint to be presented in every programme that discusses a controversial issue of public importance.¹⁷ While the topic of genetic engineering and genetic modification is a long-running issue, arguably the period of interest in this case was triggered in June 2023 when the National Party announced its intention to remove regulations on genetic modification and genetic engineering.¹⁸ With the new Government yet to make a decision on changes to the regulation of genetic modification and genetic engineering, the period of interest is ongoing.

[16]  In these circumstances, we do not uphold the balance complaint.

Accuracy

[17]  Determination of a complaint under the accuracy standard occurs in two steps. The first step is to consider whether the programme was inaccurate or misleading. The second step is to consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.

[18]  The standard is concerned only with material inaccuracies. Technical or unimportant points that are unlikely to significantly affect viewers’ understanding of the programme as a whole are not considered material.¹⁹

[19]  Further, the requirement for factual accuracy does not apply to statements clearly distinguishable as analysis, comment or opinion, rather than statements of fact. But broadcasters should still make reasonable efforts in ensuring these comments are not materially misleading with respect to facts referred to, or upon which comments are based.²⁰

[20]  In assessing whether a statement was a statement of fact, or analysis, comment or opinion, the following factors may be relevant:²¹

• The language used
• The type of programme
• The role and reputation of the person speaking
• The subject matter
• Whether the statement is attributed to someone
• Whether evidence or proof is provided.

[21]  PGHI blends comedy, light-hearted investigations and in-depth reporting.²² In this context, and from the title and premise of the show itself (looking into topics which Gower has issues with) the programme could reasonably be expected to contain a significant portion of opinion. 

[22]  In looking at the specific segment complained about, we note wording of the introduction to the segment indicated it comprised Gower’s opinion:

I’m Paddy Gower and this is my show, called Paddy Gower Has Issues… What is actually spot on in the country right now? It's time for no issues. I've got no issues with corn. Give me your ears. Obviously I’ve got no issues with normal corn. Who would? But I've also got no issues with genetically modified corn…

[23]  Further, as noted at [15], PGHI usually ends with Gower providing his opinion on the topics researched, or on a topic with which he has ‘no issues’. Audiences would expect this segment to be opinion based.

[24]  Nevertheless, broadcasters are obliged to make reasonable efforts to ensure any opinion is not misleading with respect to any facts referred to, or upon which the analysis, comment or opinion is based. 

[25]  The complaint alleges the statement ‘what's gone wrong, though, in all these decades of global genetic modification? Well, not one three-eyed fish has appeared, nothing’ was inaccurate as there have been issues with genetic engineering and genetic modification in the two decades since the regulations were tightened, including issues with the ovaries of genetically modified calves in 2010.  

[26]  We consider this comment by Gower was a continuation of his analysis and opinion on the issue, and was intended as light-hearted commentary – supported by the image of a three-headed fish from The Simpsons that was chosen to accompany the comment. 

[27]  We also do not consider the omission to address issues such as the 2010 calves example mentioned by the complainant made the segment as a whole materially inaccurate or misleading. The segment as a whole focused on Gower’s opinion of genetic modification – with the primary examples discussed being the removal of pests from corn, and the possibility of creating grasses that may reduce emissions – and his view that the Government should go ahead with its proposals to lessen the regulation on genetic modification and genetic engineering. We do not consider the comment complained of, particularly in the manner and tone it was presented, was likely to change viewers’ overall understanding. Nor do we think if viewers had been alerted to the incident referenced by the complainant, that they would have had a materially different understanding of the segment as a whole. 

[28]  In these circumstances, we have not found actual or potential harm under the accuracy standard which warrants regulatory intervention or limiting the right to freedom of expression.

Fairness

[29]  The fairness standard states that broadcasters should deal fairly with any individual taking part or referred to in a broadcast.²³ The fairness standard states that participants and contributors should be informed, before a broadcast, of the nature of the programme and their proposed contribution, except where justified in the public interest, or where their participation is minor in the context of the programme.²⁴

[30]  In this case, we consider GE-Free NZ’s participation in the broadcast, being a very brief inclusion of its logo, in the context of summarising the history of ‘Corngate’ in New Zealand and the ban on GE, was minor in the context. It follows that GE-Free NZ was not required in the interests of fairness to be informed before the broadcast that the logo was to be included, nor was the broadcaster required to provide GE-Free NZ an opportunity to comment in response to the broadcast.

[31]  We find no breach of the fairness standard.

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

Susie Staley
Chair
20 February 2024   

Appendix

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

1  GE-Free NZ’s formal complaint – 19 November 2023

2  WBD’s response to the complaint – 12 December 2023

3  GE-Free NZ’s referral to the Authority – 14 December 2023

4  GE-Free NZ’s additional submissions – 15 December 2023

5  WBD’s confirmation of no further comments – 25 January 2024

¹ “New Genetic Engineering: Scientists oppose EU Commission proposal” Test Biotech (5 December 2023)
² Eloise Gibson “Mutant cows die in GM trial” The Herald (online ed, 1 May 2010) and Antonio Regalado “Gene-edited cattle have a major screwup in their DNA” (29 August 2019) MIT Technology Review
³ Standard 5, Code of Broadcasting Standards in New Zealand
⁴ Standard 6, Code of Broadcasting Standards in New Zealand 
⁵ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand, page 16
⁶ Standard 8, Code of Broadcasting Standards in New Zealand
⁷ Commentary, Standard 8, Code of Broadcasting Standards in New Zealand, page 20
⁸ Introduction, Code of Broadcasting Standards in New Zealand, page 4
⁹ Guideline 5.1
¹⁰ Guideline 5.1
¹¹ Grammar and Discovery NZ Ltd, Decision No. 2021-070 at [20]  Friends of the Earth (NZ) and Radio New Zealand Ltd, Decision No. 2018-081 at [15] and Carapiet and Radio New Zealand Ltd, Decision No. 2022-081 at [17]
¹² Gray, Scott, Vickers and Vink and MediaWorks TV Ltd, Decision No 2019-020 at [33] and Muir and Television New Zealand Ltd, Decision No. 2019-039 at [14]
¹³ Guideline 5.2
¹⁴ Guideline 5.4
¹⁵ Commentary, Standard 5, Code of Broadcasting Standards in New Zealand at page 15
¹⁶ Guideline 5.2
¹⁷ Guideline 5.2
¹⁸ “NZ’s GMO laws to be loosened under National govt – Luxon” 1News (online ed, 11 June 2023)
¹⁹ Guideline 6.2
²⁰ Guideline 6.1
²¹ Commentary, Standard 6, Code of Broadcasting Standards in New Zealand, page 16
²² Hayden Donnell “An hour of Gower” RNZ (online ed, 28 May 2023)
²³ Standard 8, Code of Broadcasting Standards in New Zealand
²⁴ Guideline 8.2