Gibbs and Radio New Zealand Ltd - 2020-156 (28 April 2021)
- Judge Bill Hastings (Chair)
- Leigh Pearson
- Paula Rose QSO
- Susie Staley MNZM
- Andrew Gibbs
BroadcasterRadio New Zealand Ltd
Channel/StationRadio New Zealand
[This summary does not form part of the decision.]
The Authority has not upheld a complaint about an item on Morning Report which briefly discussed soil contamination at, and the possible repurposing of, a chemical plant site in Paritutu, New Plymouth. The complainant, an interviewee on the broadcast, argued the item misrepresented likely contamination levels by citing test results from outside of the plant site, and through a comment that the site was cleaner than that at Mapua. The Authority found the statements complained about either were not materially inaccurate, or were clearly distinguishable as opinion, to which the requirement for factual accuracy does not apply. The broadcast was unlikely to mislead listeners. The balance and fairness standards either did not apply or were not breached.
Not Upheld: Accuracy, Balance, Fairness
 An item on Morning Report, 20 August 2020, briefly discussed soil contamination at the site of a closing chemical plant in Paritutu, New Plymouth. It presented expert advice from Associate Professor Dave McBride of Otago University, warning of the need to test the soil before the site is ever used again:
Host: An expert in occupational and environmental medicine says land a controversial chemical plant in New Plymouth is built on, should be thoroughly tested for dioxin contamination before ever being used again…
Reporter: Associate Professor Dave McBride of Otago University has studied dioxin levels in the blood of Dow workers and contamination at the former Fruitgrowers' Chemical Company in Mapua. Professor McBride said Dow ran a cleaner operation than at Mapua, but it wasn’t perfect.
Prof McBride: A disc burst in a valve, so they did have a release of Trichlorophenol which was the precursor to one of the pesticides. We’ve shown that the staff there got high levels of dioxin in their blood. There were also some emissions from an incinerator on the site.
Reporter: A 2002 Institute of Environmental Science and Research report noted that in the mid-1980s elevated levels of TCDD were found in the soil on the Paritutu site's boundaries with reserve land and a residential street. In 1998, similar levels were found on Mt Moturoa some distance away… Professor McBride warns repurposing the 16 hectare coastal site will not be easy.
Prof McBride: There should be some soil testing done and any future building on that site should be closely regulated I think, because problems often turn up years afterwards. And I think if this land was going to be sold off and it's going to be used for residential, I would worry about that…
Reporter: Professor McBride says the Paritutu site could remain in industrial use.
 The item also included commentary from the complainant, Mr Andrew Gibbs:
Reporter: But Andrew Gibbs, a researcher for residents’ group Dioxin Investigation Action,1 says there are still information gaps about the site that needed filling.
Mr Gibbs: We need some transparency around the soil levels on the site. The historic levels in the 1980s were quite elevated where there used to be piles of drums on the back of the site, and particularly under the plant where they made 2,4,5T and TCP when they had the high levels in the '60s. And there's not any published data on those levels currently…
Sites like that have been remediated and used for industrial but it probably needs some pretty significant capping in some areas…
 Finally, the item included information from the Taranaki Regional Council:
Reporter: The Taranaki Regional Council is the environmental regulator. The Director of Environment Quality, Gary Bedford, says a 2001 investigation of five soil and groundwater sites at Paritutu found negligible dioxin contamination. He confirms there are no records for soil contamination under the building where 2,4,5T was made.
 Mr Gibbs complained the broadcast breached the standards of accuracy, balance and fairness:
Statement regarding likely contamination levels:
- ‘Soil tests with “negligible” contamination and risk were on “sites at Paritutu” but were not, in fact, from, or on, the Paritutu Road ex IWD site…These Paritutu soil TCDD tests were offsite and so do not represent onsite contamination from any spills during production or leaks from storage of “emptied” drums or extracted wastes.’
- ‘RNZ was sent a list of the 2001 TRC soil test sites[;] all were offsite tests…RNZ also received – but did not report evidence of TCDD levels 33 times the NZ grazing limit in the TRC 2001 report. The 330 ppt TCDD test was from the Ngahoro ex IWD waste dump site – that IWD remediated in the 1980s, yet excessive TCDD residues remained, on grazed, reserve land’.
- ‘RNZ then reinforced their TRC “negligible” risk claim using 2002 PDP/Mfe soil testing – also outside of the ex IWD site – to again claim “negligible” risks from soil TCDD.’
- ‘RNZ twice2 refers to the risks from soil TCDD as negligible – however no risk assessment was reported for hangi – 1960s Paritutu had the highest density of Maori in urban New Plymouth.’
Statement regarding cleanliness compared to Mapua
- ‘RNZ reports two events or sources that make up less than 1% of estimated TCDD emissions. No mention at all, is made of ‘very high’ historic airborne emissions outlined in the RNZ referenced ESR/AES 2002 report that notes around 355 grams of 2,3,7,8-TCDD were likely released to air – 150 times the maximum estimated post 1975 releases as reported by RNZ.’
- ‘The IWD operation is paraded as cleaner than Mapua however significant 1960s serum TCDD elevations were still detectable in 2004. The late 1960s Paritutu serum TCDD levels mirror levels (484-131 ppt TCDD) measured in Vietnam 1970-73 and significantly elevated birth defects rates are recorded in TDHB 2002 and CPHR 2010. Death certificates also confirm significant clustering of Paritutu still births through 1965-72 and, in particular, in 1970. Female stillbirths were 7 of 8 in 1965-72 and 3 of 3 in 1970 (exp 2 and 0.24).’
- ‘The reported claim that the Paritutu site was cleaner than Mapua reinforces the early RNZ August 2 reporting that there was, “no evidence of impact”…’
- ‘RNZ was aware of the evidenced falsifications and regrouping of exposure study data and misrepresented peer reviews, along with the birth defect and cancer reports that dismissed significant anomalies by diluting the exposed population 20 to 60 fold, yet, twice inaccurately reported dismissive conclusions on the impacts in Paritutu.’
The broadcaster’s response
 RNZ did not uphold Mr Gibbs’ complaint on the basis ‘[the] audience’s understanding of the story, i.e. a call for the site to be tested before any development is undertaken, would still have been clear to the point that no standards were breached’.
 The accuracy standard3 protects the public from being significantly misinformed.4 It states broadcasters should make reasonable efforts to ensure any news, current affairs or factual programme is accurate in relation to all material points of fact, and does not mislead.
 The accuracy standard is the one most relevant to this complaint. However, the balance5 and fairness6 standards are dealt with briefly at .
 We have listened to the broadcast and read the correspondence listed in the Appendix.
 We have 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 justifies placing a limit on the right to freedom of expression. For the reasons below, we have not found such harm in this case.
 The audience may be misinformed in two ways: by incorrect statements of fact within the programme; and/or by being misled by the programme.
 The accuracy requirement does not apply to statements which are clearly distinguishable as analysis, comment or opinion, rather than statements of fact.7 Where statements of fact are at issue, the standard is concerned only with material inaccuracy. Technical or unimportant points unlikely to significantly affect the audience’s understanding of the programme as a whole are not material.8
 Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts’.9 Programmes may be misleading by omission, or as a result of the way dialogue and images have been edited together.10
Statement regarding cleanliness compared to Mapua
 The statement that the Paritutu site was cleaner than that at Mapua was clearly distinguishable as analysis or opinion, explicitly attributed to Associate Professor McBride. Therefore, the requirement for factual accuracy does not apply to this statement.
 In any event, Professor McBride’s comparison does not represent any commentary or ‘dismissiveness’ regarding the contamination levels at Paritutu. It was a simple observation relating to two sites with which Professor McBride was familiar and did not risk misleading audiences.
Statement regarding likely contamination levels
 It is not our role to determine the veracity in scientific terms of the statement that testing at Paritutu groundwater sites found negligible dioxin contamination, or to determine the scientific ramifications of the results. As we understand it, the complaint is the item misrepresented likely contamination levels by citing these results, because they were taken from outside of the plant site.
 We note the item reported that Mr Bedford ‘confirms there are no records for soil contamination under the building where 2,4,5T was made’, which appears consistent with Mr Gibbs’ position that the reported tests were conducted outside of the immediate site, and that testing had not been undertaken directly on the site itself. Therefore, the reporting on these test results was unlikely to mislead listeners.
 In any case, the focus of the item, as evidenced by the introduction, was the risk of contamination of the soil, and the recommended testing of the site before it is repurposed. Mr Bedford’s statement about test results at Paritutu groundwater sites would not have materially affected the audience’s understanding of this, and therefore would not have misled listeners.
Additional complaint detail
 Mr Gibbs has provided a lot of technical detail in support of his complaint. In the context of a 4-minute report focused broadly on the risk of soil contamination and the need for testing, this level of detail is unlikely to materially influence the audience’s understanding of the item as a whole.
 For completeness, we note the matter raised by Mr Gibbs regarding testing conducted in 2002 and reported by the Ministry for the Environment, finding negligible levels of dioxin, was included only in the broadcaster’s online article on this issue, rather than the broadcast.11 As such, it is outside of our jurisdiction and has not been considered as part of this complaint.
 Taking the item as a whole, we find the broadcast was not inaccurate and was unlikely to mislead listeners.
 Accordingly, we do not uphold this complaint.
 We found the remaining standards raised in the complaint either did not apply or were not breached, for the following reasons:
- Balance: This standard12 ensures competing viewpoints about controversial issues of public interest are presented to enable audiences to arrive at informed and reasoned opinions.13 Mr Gibbs’ concerns under this standard related to the broadcast’s mention of a ‘2001 investigation of five soil and groundwater sites at Paritutu’ finding ‘negligible dioxin contamination’ without providing further information regarding the relevant sites included, other contamination data and risks relevant to the site. This is, in essence, an argument that broadcast content was misleading by omission of additional facts (which is more properly addressed under the accuracy standard) rather than an argument that different viewpoints on a controversial issue were omitted. In any event, as outlined above under accuracy, the broadcast contained sufficient information (including comment from Mr Gibbs) so as not to leave listeners with an impression there was a ‘negligible’ contamination risk.
- Fairness: The fairness standard14 protects the dignity and reputation of those featured in programmes.15 Mr Gibbs has not raised any specific issues under this standard and, in any case, we are satisfied the individuals who featured, including him, were treated fairly.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
Judge Bill Hastings
28 April 2021
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Andrew Gibbs’ formal complaint – 15 September 2020
2 RNZ’s response to the complaint – 12 October 2020
3 Mr Gibbs’ referral to the Authority – 5 November 2020
4 Mr Gibbs’ further comments – 25 November 2020
5 RNZ’s confirmation of no further comment – 30 November 2020
6 Mr Gibbs’ final comments – 14 December 2020
7 Mr Gibbs’ confirmation identification issue resolved – 31 March 2021
1 This description of Mr Gibbs’ representative identity was inaccurate and this was raised in the original complaint. The proper description of Mr Gibbs as a researcher for Dioxin Investigation Network and CEPRA (Chemically Exposed Paritutu Residents Association) was included in the broadcaster’s online article on this issue: RNZ (20 August 2020) “Expert warns New Plymouth chemical plant needs testing for dioxin contamination” <www.rnz.co.nz>
2 The second reference was made only in the broadcaster’s online article on this issue, rather than in the broadcast itself.
3 Standard 9 of the Radio Code of Broadcasting Practice
4 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
5 Standard 8 of the Radio Code of Broadcasting Practice
6 Standard 11 of the Radio Code of Broadcasting Practice
7 Guideline 9a
8 Guideline 9b
9 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
10 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
11 RNZ (20 August 2020) “Expert warns New Plymouth chemical plant needs testing for dioxin contamination” <www.rnz.co.nz>
12 Standard 8 of the Radio Code of Broadcasting Practice
13 Commentary: Balance, Broadcasting Standards in New Zealand Codebook, page 18
14 Standard 11 of the Radio Code of Broadcasting Practice
15 Commentary: Fairness, Broadcasting Standards in New Zealand Codebook, page 21