Laroche & Breed and Television New Zealand Ltd - 2021-132 (20 December 2021)
- Susie Staley MNZM (Chair)
- John Gillespie
- Tupe Solomon-Tanoa’i
- Robert Laroche, Ian Breed and Karilyn Breed
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
The Authority has declined to determine two complaints under various standards, including discrimination and denigration, about an item on Seven Sharp on 28 September 2021. The item reported on employment issues relating to the COVID-19 vaccine. Following an interview with an employment lawyer, the presenters discussed a hypothetical dinner party where a guest turned out to be unvaccinated. The complainants were concerned about the treatment of people that were not vaccinated, who do not amount to a relevant section of society for the purposes of the discrimination and denigration standard. The remainder of the complaint reflected the complainants’ personal views and/or was unrelated to the broadcast. In all the circumstances (including scientific consensus around the safety of the COVID-19 Pfizer vaccine and the impact of the COVID-19 pandemic), the Authority considered it should not determine the complaints.
Declined to Determine (section 11(b) of the Broadcasting Act 1989, in all the circumstances): Discrimination and Denigration, Accuracy, Balance, Fairness
 On 28 September 2021, Seven Sharp reported on employment issues relating to the COVID-19 vaccine. The segment included an interview with employment lawyer Fiona McMillan, focusing on employment health and safety issues relating to the COVID-19 vaccine. The interview included the following exchange:
Hilary Barry: OK. And what if you work closely with someone who refuses to get vaccinated? So, could you go to your employer about it if you're concerned?
Fiona McMillan: Yeah, and look, this is a, this is a really tricky one, and there are a number of steps to that. So if you do have some concerns about an unvaccinated worker in your workplace, you can go to your employer. The onus is on, on you to show why you think that is a risk to you. The employer then needs to undertake a health and safety risk assessment to determine whether or not there is a risk. And if there is a risk, they've got a job to, to look to either eliminate or minimise that risk. But if the employer has undertaken all of those steps, and you're still not happy and you start to refuse to come to work or refuse to do certain tasks or refuse to sit next to Mary, who's not vaccinated, you've got to prepare yourself that you may be subject to some form of disciplinary action yourself.
 Following the interview, the presenters discussed a hypothetical dinner party where a guest turned out to be unvaccinated:
Hilary Barry: I can see some very awkward situations coming up in the months ahead. I mean, for example, imagine you're having a dinner party, right? And you say to your guests well bring your vaccination passport, you might as well. And two people aren't vaccinated. You've let everybody else in and these two turn up. They're not vaccinated.
Jeremy Wells: Where would you put them?
Barry: Well, you can't let them in the house. I don't know. You could set up a pup tent out the back, I guess.
Wells: A pup tent. And then, well how do you communicate with them?
Barry: Well, we could do Facetime or Zoom them from the pup tent. I could put some candles out there, that would be quite nice.
Wells: What, then deliver their food contactless?
Barry: Would be on a tray. Yeah, you'd have to leave it for them. So awkward. So awkward.
Wells: Well, that's not going to be very good for people, is it?
Barry: No, should've been vaccinated, soz.
 Robert Laroche complained the Seven Sharp segment breached the discrimination and denigration standard:
- During the show, Hilary Barry ‘made reference to a potential scenario where if she were holding a dinner party and someone arrived who was unvaccinated, she would put them out in a tent (or words to that effect)’.
- ‘I would have hoped TV one had an [anti-discrimination] policy of their own and indeed if they don’t they certainly should do. If she were to have made those remarks about somebody who is, for example black, gay, Muslim or transgender people would be up in arms and would be calling for her resignation. She should not be allowed to further add “fuel to the fire” for people who, for their own reasons have vaccine hesitancy and are continually subjected to discrimination, derision, coercion and ridicule by making such offensive and provocative comments.’
 Ian and Karilyn Breed complained the Seven Sharp segment breached the discrimination and denigration, balance, accuracy, and fairness standards for reasons including:
- ‘The framing of [Barry’s question on working closely with someone refusing to get vaccinated] infers that an unvaccinated person is the only potential COVID risk in a workplace.’
- ‘The issue was not made clear that vaxed and unvaxed are both capable of carrying viral loads and transmitting the virus to one another.’
- ‘The way in which Hilary frames her question discriminates against unvaccinated people with no scientific basis.’
- Barry ‘made it very clear that [people that are unvaccinated] would not be welcome at her dinner table, and she would have to treat them differently, put them in the garden in a tent, send their meal out on a tray and exclude them from society i.e. discriminate against them on the basis of their medical status’.
- ‘TVNZ’s tendency, alongside other mainstream media providers, has been to indoctrinate people as opposed to educating them.’
- ‘By virtue of labelling a group of people “un-vaxed” or “anti-vaxxers” Hilary Barry has clearly recognized and discriminated against a section of the community as a consequence of their disability, occupational status, legitimate expression, culture or political belief re- not getting vaccinated.’
The broadcaster’s response
 Television New Zealand Ltd (TVNZ) did not uphold the complaints. In response to each standard, it noted:
Discrimination and denigration
- ‘People that don’t want to be immunized are not a relevant “section of the community” as envisioned by the Standard… Therefore, Standard 6 does not apply.’
- The conversation complained about ‘was a light-hearted exchange and shows the discomfort which people who are not vaccinated may cause and face in these Covid-19 times, in social settings, but also in employment settings which was the topic of the interview. The commentary was not intended to be nasty about anti-Vaxxers or the vaccine hesitant and the Committee does not agree that a reasonable person would see it this way. There was no element of shaming or any comparison between anti-Vaxxers, or the vaccine hesitant, and those [with] Covid-19 or any other illness’.
- ‘Barry’s comments are clearly her opinion concerning a made-up scenario and are presented this way in the programme. This standard does not require that this type of commentary should be balanced. In any case the Committee notes that issues concerning the Covid-19 pandemic are widely reported in news media and so significant viewpoints are heard about this.’
- The complaint did not include an ‘allegation that a material point of fact is inaccurate in the programme’.
- ‘The Committee notes that vaccination is the best way to protect oneself, and those unable to have the vaccine from catching Covid-19 as it significantly reduced the effects of the virus and the transmission between people.’
- ‘This standard is designed to protect those people and organisations taking part or referred to in a broadcast. You have not made a complaint in this regard.’
Outcome: declined to determine
 Section 11(b) of the Broadcasting Act 1989 authorises the Authority to decline to determine a complaint if it considers, in all the circumstances of the complaint, it should not be determined.
 We decline to determine these two complaints for the following reasons:
- We have previously found:
- There is consensus around the safety of the COVID-19 Pfizer vaccine.1
- The discrimination and denigration, and fairness, standards do not apply to groups who oppose or have concerns about vaccinations.2 (For the purposes of the fairness standard, we also note no individual was referred to in the broadcast.)
- Our jurisdiction is limited to complaints about the programme broadcast.3 We cannot consider the online material Robert Laroche has referred to.
- Much of the Breeds’ complaint relates to the complainants’ personal views as to what perspectives the broadcaster should include in its programming. The complaint included lengthy discussion of vaccine safety and efficacy which was not directly relevant to a broadcast focused on employment issues. This is a matter of personal preference and editorial discretion which does not raise broadcasting standards issues.4
For the above reasons the Authority declines to determine the complaints.
Signed for and on behalf of the Authority
20 December 2021
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Robert Laroche’s formal complaint to TVNZ – 3 October 2021
2 TVNZ’s response to Laroche complaint – 1 November 2021
3 Laroche’s referral to the Authority – 1 November 2021
4 TVNZ’s confirmation of no further comment – 15 November 2021
5 Ian and Karilyn Breed’s formal complaint to TVNZ – 2 October 2021
6 TVNZ’s response to Breeds complaint – 1 November 2021
7 Breeds’ referral to the Authority, and supporting submissions – 25 November 2021
1 Donald and Television New Zealand Ltd, Decision No. 2021-033 at –
2 Discrimination and Denigration: See Donald and Television New Zealand Ltd, as above at ; and Gray, Scott, Vickers & Vink and MediaWorks TV Ltd, Decision No. 2019-020 at ; Fairness: Donald and Television New Zealand Ltd, Decision No. 2021-033 at –
3 Broadcasting Act 1989, sections 6 and 8
4 See section 5(c) of the Broadcasting Act 1989, which states that complaints based merely on a complainant’s preferences are not, in general, capable of being resolved by a complaints procedure