NZDSOS Inc and Television New Zealand Ltd - 2022-005 (26 April 2022)
- Susie Staley MNZM (Chair)
- John Gillespie
- Tupe Solomon-Tanoa’i
- NZDSOS Inc
BroadcasterTelevision New Zealand Ltd
[This summary does not form part of the decision.]
A segment of Seven Sharp on 13 October 2021 reported on the COVID-19 vaccine. The complaint alleged the segment breached the accuracy standard as the report inaccurately described the composition and safety of the vaccine. The Authority found it was reasonable for TVNZ to rely on Dr Nikki Turner as an authoritative source. In any event, the segment was materially accurate.
Not Upheld: Accuracy
 On 13 October 2021, Seven Sharp interviewed Dr Nikki Turner, Medical Director of the Immunisation Advisory Centre, to discuss the composition and safety of the Pfizer vaccine.1 Dr Turner’s comments included:
- ‘This is a modern vaccine, and it's really good that it's actually got very little in it. So you've got a little piece of genetic material, which is what the body recognises in response to, that is wrapped in a coat of fat. So it's like in a little fatty bubble. And then really the only other things in this vaccine is, it has some salts, and that keeps it stable to the acid match of our body. And then it's got some sugar products in it, which enables it to be stable when it's frozen. That's pretty well all that's in the vaccine. So it's very simple. Not a lot of ingredients.’
- ‘There's actually very few people that can't have this vaccine. There's no virus in it. There's not even a piece of virus in it. So this vaccine is safe for almost everybody. There's a really small group of people who can't have this vaccine, and they are people who have had a severe allergic reaction, what we call anaphylaxis, to any product in the vaccine, or who had a severe allergic reaction to the first dose. Now the products in the vaccine aren't very much. There's one product that's called “peg”, polyethylene glycol for those who are really interested in the chemistry. It's a product that's used quite widely in a lot of medical products. And so we've got extensive use of it, and there's a very, very small group of people in the country who have severe allergic reactions to it. So those people, we're very cautious about using this vaccine on.’
- ‘…There's less than 100 people in the country at the most who would genuinely have a severe reaction that we would say, you shouldn't have this vaccine. So it's a great vaccine. The question that people often ask is, well, I've got a really bad medical problem. I'm on a drug. My immune system's not great. Is it safe to have this vaccine? And the answer is yes. It's not safe to have the disease for those people. And because the vaccine has no virus in it, no live virus in it, it's really, really safe for people on any medication, for people with severe problems with your immune systems or any major medical problems. So really good news for the vast majority of us.’
- ‘Yeah, this vaccine is definitely recommended highly for pregnant people and breastfeeding people. Many people would have seen the news internationally that pregnant people are getting really sick from COVID. So it's really, really more important for pregnant people to have this vaccine.’
 New Zealand Doctors Speaking Out with Science (NZDSOS) complained the broadcast breached the accuracy standard. NZDSOS provided detailed submissions. Key arguments for its position were that Dr Nikki Turner:
- ‘failed to accurately state the key components in the Pfizer Comirnaty product.’ Specifically, that the vaccine uses ‘a new technology that uses a synthetic mRNA sequence delivered within protective lipid nanoparticle coating. There was no mention that both of these components are novel and there is no experience with their widespread use in healthy populations.’
- ‘repeatedly made misleading claims that the Pfizer Comirnaty product is "safe for almost everybody", (apart from her stated very small group of less than 100 people who may have a severe allergic reaction to the PEG chemical product in the Comirnaty product).’ This is an opinion. Studies of its safety are ongoing and the vaccine ‘was only given provisional consent.’
- ‘failed to indicate that this Pfizer Comirnaty product has been linked both locally and internationally to known serious side effects in adults and children including heart [inflammation] (Myocarditis and Pericarditis), heart attacks, strokes and death.’
- ‘Incorrectly stated that the Pfizer Comirnaty product was completely safe for pregnant [people] while in truth there have not yet been any specific clinical safety trials during pregnancy to determine its safety parameters.’
- ‘completely misleads the audience with her simplistic comments that totally ignore the known serious side effects, which are clearly stated in the Pfizer Comirnaty product application to Medsafe.’ This is ‘omission of information that a qualified, registered, practicing medical doctor advising the public should include if true informed consent is sought from the population.’ NZDSOS also referenced specific studies as evidence of potential side effects and risks.
- ‘took the position that the risks associated with infection with SARS-Cov-2 outweigh the risks associated with vaccination’. However, the ‘fatality rate associated with Covid-19 [is] similar to influenza’ and it ‘is not possible to make an informed calculation of the comparative risks when long-term safety data is not available.’
 NZDSOS also argued there was reason to doubt the accuracy of Dr Turner’s comments because:
- Expert opinion is ‘the lowest tier of evidence and that data derived from meta-analysis and randomised controlled trials form the upper tiers of this hierarchy.’
- ‘in the absence of long-term clinical data there are no experts, there is only speculation.’
- Dr Turner’s expertise in the field of vaccination cannot be generalised to include this ‘entirely new class of vaccines.’
The broadcaster’s response
 Television New Zealand Ltd (TVNZ) did not uphold the complaint. It noted:
- ‘Dr Turner is a credible expert in the subject of immunisation so there was no reason for Seven Sharp to doubt the accuracy of her statements.’
- ‘Dr Turner summarised the ingredients of the vaccine, in necessarily simplified terms for viewers without specialist expertise.’
- ‘Dr Turner did not claim that the vaccine does not cause side effects. Her comments related to the proportion of people unable to get the vaccine and the level of risk for the vast majority of the population, both of which are very low.’
- ‘The safety and efficacy of the vaccine has been well established. Medsafe states that “the protective benefits of vaccination against COVID-19 far outweigh the potential risks of vaccination.”’2
- Referring to a previous Authority decision,3 it ‘is relevant to note that the Broadcasting Standards Authority has considered complaints relating to the safety of the Covid-19 vaccine, and has determined that the safety of the vaccine has been established.’
 Following the complaint referral, TVNZ also referred to this Authority’s decision in Marshall and Television New Zealand Ltd, noting the Authority found the same segment ‘met the Standard for Accuracy.’4
 Generally, we would deal with similar complaints about the same broadcast in the same decision. However, this complaint was referred to us while the Marshall decision was being finalised. We provided NZDSOS with an opportunity to comment on the Marshall decision. Their comments are incorporated at paragraphs – above. We note NZDSOS did not specifically refer to the Marshall decision in their further comments.
 The purpose of the accuracy standard5 is to protect the public from being significantly misinformed.6 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. Programmes may be misleading by omission. Being ‘misled’ is defined as being given ‘a wrong idea or impression of the facts.’7
 We have watched the broadcast and read the correspondence listed in the Appendix.
 Our task is to weigh the value of the programme, in terms of the right to freedom of expression and the public interest in it, against the level of actual or potential harm caused. We may only intervene and uphold complaints where the limitation on the right to freedom of expression is reasonable and justified.
 The value of the programme is high given it is disseminating health information relating to the current COVID-19 pandemic. The public interest in this health information means it is important to ensure accuracy.
 The standard does not apply to ‘analysis, comment or opinion’.8 A fact is verifiable: it is something that can be proved right or wrong. An opinion is someone’s view: it is contestable, and others may hold a different view.9 It is not always clear whether a statement is an assertion of fact or an opinion, this will depend on the context, presentation, and how a reasonable viewer would perceive the information.10 Relevant factors may include:11
- the language used in the broadcast
- the language used in the rest of the item (there could be a statement of fact within an opinion piece or surrounded by opinions)
- the type of programme and the role or reputation of the person speaking
- the subject matter
- whether evidence or proof is provided
- whether the statement is attributed to someone.
 The item was presented as a straightforward ‘explainer’ on the vaccine and used definitive language. While Dr Turner used some language reflecting her own opinion and evaluative judgment (such as ‘it's really, really more important for pregnant people to have this vaccine’), we consider a reasonable viewer was likely to perceive all of the relevant information as fact. The accuracy standard therefore applies.
 Determination of a complaint under the accuracy standard occurs in two stages: first, we must consider whether the programme was inaccurate or misleading; if so, we must then consider whether reasonable efforts were made by the broadcaster to ensure that the programme was accurate and did not mislead.12
 Given the level of specificity of NZDSOS’s complaint, we have chosen to determine this complaint by addressing the ‘reasonable efforts’ ground first, followed by whether the programme was inaccurate.
Did TVNZ take reasonable efforts to ensure accuracy?
 Whether reasonable efforts were made to ensure accuracy includes consideration of the source of the material (such as whether it relies on an authoritative expert), whether there was some obvious reason to question the accuracy of the content before it was broadcast, and the extent to which the issue of accuracy was reasonably capable of being determined by the broadcaster.13
 As we have noted in our earlier Marshall decision, it is not the Authority’s or broadcaster’s role to conclusively establish the safety of COVID-19 vaccines, nor the veracity of the science supporting the vaccine’s safety.14 To that extent, the standard states broadcasters should ‘make reasonable efforts’ to ensure accuracy; the standard is not absolute15 and focuses on what a broadcaster could reasonably do about an inaccuracy.16 It is reasonable to conclude it is beyond TVNZ’s expertise to determine the accuracy of specialist scientific issues raised.17
 We consider TVNZ made reasonable efforts to ensure material statements of fact were accurate and the segment did not mislead viewers in light of its reliance on Dr Turner. We understand NZDSOS has some reservations with this conclusion, outlined at paragraph  above, however:
- With regards to NZDSOS’s reference to the hierarchy of evidence, we accept expert opinion often appears at the lowest level of such hierarchies18 (and note there is some commentary suggesting a move from the application of such a rigid approach to evidence).19 But the accuracy standard refers to what is reasonable in the circumstances. It would be unreasonable to expect a broadcaster to commission a systematic review of randomised controlled trials, let alone appropriately interpret the results. Deferring to experts allows the public to benefit from their expertise (including their knowledge of relevant studies). More could not be expected in these circumstances.
- In this case, neither the broadcaster, nor the Authority, had any reason to question Dr Turner’s statements which are supported by medical consensus (addressed later in this decision).
- With regards to NZDSOS’s concerns regarding Dr Turner specifically, it was reasonable for TVNZ to rely on Dr Turner as an authoritative source. Dr Turner is the Medical Director of the Immunisation Advisory Centre. The Centre played a key role in supporting the COVID-19 vaccine rollout,20 and is a member of Vaccine Safety Net (a World Health Organisation led project providing reliable information on vaccine safety).21 Her expertise covers COVID-19 specific issues.
 The above findings mean the broadcaster has complied with this standard. However, as with the Marshall decision, we wish to briefly address some of NZDSOS’s concerns considering the significant public interest associated with these issues.
Was the broadcast inaccurate?
 We consider the segment was materially accurate and would not have misled viewers. The vaccine’s safety has repeatedly been accepted by medical authorities around the world,22 (and acknowledged by us in previous decisions, although focusing on different aspects).23 These authorities are all well placed to evaluate the relevant science and inform policy decisions.
 We are also conscious the interview with Dr Turner was approximately 3.30 minutes. The length, and nature (as an ‘explainer’), of the broadcast meant viewers would not expect the level of additional detail contemplated by NZDSOS.
 Turning to some of NZDSOS’s concerns:
- Composition: The aim of the broadcast was to provide a plain English outline of the composition and safety of the Pfizer vaccine. Dr Turner summarised the ingredients of the vaccine in accessible language for an audience untrained in biochemistry. It would have been outside of audience expectations for Dr Turner to use the technical jargon of the key components.24
- Novel technology use: The vaccine utilises messenger RNA (mRNA) as the active ingredient. This contrasts with ‘conventional’ vaccines which rely on an altered form of the bacteria or virus itself, or fragments of its protein.25 Failing to mention the vaccine’s development does not mean Dr Turner’s comments on safety are inaccurate, either directly or by omission: the issue is whether the vaccine itself is safe. We also note mRNA vaccines have been studied for decades,26 and safety testing of the vaccine is held to the same rigorous standards as any other vaccine or medical product.27
- Side effects: Dr Turner did not claim the vaccine did not cause any side effects. As we have found Dr Turner’s safety claims were accurate, the omission of references to side effects does not make the broadcast misleading or otherwise inaccurate. We are conscious many vaccines and medicines cause side effects in some people and the question of safety for the public generally does not rely on excluding the risk of any side effects, but rather undertaking a risk-benefit analysis to ensure the safety profile is acceptable.28
- Continuous monitoring: As we have previously recognised, the granting of provisional consents with conditions allowing for long-term monitoring of the vaccine are not due to any identified safety risks, but rather the lack of long-term data.29 Given the urgent need for vaccines, relevant authorities made an evaluative decision to implement the vaccines rather than wait for the necessary years to obtain the long-term data.30 This does not make comments on safety inaccurate or otherwise misleading.
- Necessity overstated: NZDSOS argues the severity (specifically by reference to the global infection-fatality rate) of COVID-19 is similar to that of influenza.31 This has been consistently disproven.32 There is some uncertainty on the correct infection-fatality rate for COVID-19 (which significantly depends on age groups), but these rates are generally higher than that for influenza.33
- Lack of information: NZDSOS submits it is misleading to state the vaccine is ‘perfectly safe’ for people that are pregnant, breastfeeding or immunocompromised given the lack of information in the vaccine’s datasheet and risk management plan.34 However:
- Pregnant and breastfeeding: We have recently declined to uphold similar complaints concerning the safety of the vaccine (including one complaint on the same broadcast) for pregnant people,35 finding such statements were accurate. Our sources cited in the Marshall decision equally support the vaccine’s use for people that are breastfeeding.36 We note studies continue to be released supporting the vaccine’s safety.37
- Immunocompromised: As noted above at ‘Side effects’, a safety profile considers broader factors than risks posed, including the benefits of a medicine. Medical authorities,38 and studies39 strongly encourage the vaccine’s use for people who are immunocompromised due to the increased risks of COVID-19 in this group. These authorities also note if a person has concerns they should discuss these with their doctor.
- Informed consent standard: NZDSOS suggested Dr Nikki Turner breached her medical obligations as she omitted information that would otherwise be required for a consumer to make a fully informed decision. We note the requirement to fully inform a consumer is consumer-specific and the level of detail required would vary accordingly.40 This is reflected in the accompanying Consumer Medicine Information summary.41 We do not consider it applies to this broadcast, providing general information to a wide population.
- Other omissions: To the extent the complaint concerns NZDSOS’s preference of what should have been addressed by Dr Turner, this is an issue of personal preference that cannot be resolved by a complaints procedure.42
 We have not addressed every submission made by NZDSOS. However, we do not consider any other alleged omission or inaccuracy detracts from our above findings. Even if we were to accept NZDSOS’s submissions at face value, we do not consider this makes the broadcast inaccurate. Dr Turner’s statements focused on the safety of the vaccine for the general population, and her recommendations for certain groups of people to receive the vaccine. As we have stated above, an evaluation of a safety profile constitutes a risk-benefit analysis: medical interventions can be considered safe, and recommended for groups of people or the general populace, despite the existence of side effects in rare cases.
 In all of the above circumstances, and particularly given our finding about the reasonableness of reliance on Dr Turner, we are satisfied the broadcaster has met its obligations under the accuracy standard.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
26 April 2022
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 NZDSOS’s formal complaint to TVNZ – 10 November 2021
2 TVNZ’s response to the complaint – 7 December 2021
3 NZDSOS’s referral to the Authority – 11 January 2022
4 TVNZ’s confirmation of no further comments – 25 January 2022
5 NZDSOS’s final comments following Marshall decision – 10 March 2022
1 Unless otherwise expressed, all references to the vaccine are references to Pfizer’s Comirnaty vaccine
2 Medsafe “Adverse events following immunisation with COVID-19 vaccines: Safety Report #33 – 16 October 2021” (3 November 2021) <medsafe.govt.nz>
3 Donald and Television New Zealand Ltd, Decision No. 2021-033 at 
4 Marshall and Television New Zealand Ltd, Decision No. 2021-138
5 Standard 9, Free-To-Air Television Code of Broadcasting Practice
6 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 18
7 Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110 at 
8 Guideline 9a
9 Guidance: Accuracy – Distinguishing fact and analysis, comment or opinion, Broadcasting Standards in New Zealand Codebook, page 64
10 As above
11 As above
12 Commentary: Accuracy, Broadcasting Standards in New Zealand Codebook, page 19
13 Guideline 9d
14 Marshall and Television New Zealand Ltd, Decision No. 2021-138 at 
15 See John Burrows External Review of Decisions 2020 – Accuracy Standard (9 July 2020, Broadcasting Standards Authority | Te Mana Whanonga Kaipāho) at 2, where he notes the standard changed from an absolute standard, to one requiring reasonable efforts in 2008
16 Attorney General of Samoa v TVWorks Ltd, CIV-2011-485-1110 at –
17 See WAVESnz and Radio New Zealand Ltd, Decision No. 2018- at  for a similar finding in relation to vaccines; and Guenole and Television New Zealand Ltd, Decision No. 2019-091at  in relation to 5G technology
18 See Patricia Burns, Rod Rohrick and Kevin Chung “The levels of evidence and their role in evidence-based medicine” (2011) 128 Plastic and reconstructive surgery 305
19 Penny Webb, Chris Bain and Sandi Pirozzo Essential Epidemiology: An Introduction for Students and health Professionals (3rd ed, Cambridge University Press, United Kingdom, 2017) at 293–294; and Michael Ho, Pamela Peterson and Frederick Masoudi “Evaluating the Evidence: Is There a Rigid Hierarchy?” (2008) 118 Circulation 1675
20 The Immunisation Advisory Centre “Our role: the NZ COVID-19 vaccination programme” (20 August 2021) <covid.immune.org.nz>
21 World Health Organisation “The Immunisation Advisory Centre” (2020) <who.int>
22 Unite against COVID-19 | Mā tātau katoa e ārai atu te COVID-19 “What you need to know about the Pfizer vaccine” (10 January 2022) New Zealand Government | Te Kāwanatanga o Aotearoa <covid19.govt.nz>, World Health Organisation “Safety of COVID-19 Vaccines” (31 March 2021) and “Coronavirus disease (COVID-19): Vaccines safety” (24 January 2022) <who.int>; Australian Government Department of Health “COVID-19 vaccine safety and side effects” (28 February 2022) <health.gov.au>; Johns Hopkins Medicine “Is the COVID-19 Vaccine Safe?” (4 January 2022) <hopkinsmedicine.org>; Centers for Disease Control and Prevention “Safety of COVID-19 Vaccines” (14 March 2022) <cdc.gov>
23 For safety generally: Donald and Television New Zealand Ltd, Decision No. 2021-033 at –; for safety for pregnant people: Marshall and Television New Zealand Ltd, Decision No. 2021-138; Bright and Discovery NZ Ltd, Decision No. 2021-152
24 We note the vaccine components are listed here: Medsafe “Comirnaty: New Zealand Data Sheet”(8 November 2021) <medsafe.govt.nz> at  and [6.1]
25 See The Immunisation Advisory Centre “Types of vaccines” (September 2020) <immune.org.nz>
26 See footnote 22, above; Gábor Szabó, Azita Mahiny, and Irena Vlatkovic “COVID-19 mRNA vaccines: Platforms and current developments” (19 February 2022) Molecular therapy DOI <https://doi.org/10.1016/j.ymthe.2022.02.016> (which also addresses why a modified uridine nucleoside was required in the vaccine, a point NZDSOS makes) and see Arun Kumar and others “The mRNA vaccine development landscape for infectious diseases” (11 February 2022) Nature Reviews Drug Discovery ISSN 1474-1784 for an outline of how the area has expanded since
27 See Medsafe “COVID-19: Vaccine Evaluation and Approval Process” (27 November 2020) <medsafe.govt.nz>; footnote 22, above; Ministry of Health | Manatū Hauora “COVID-19 vaccines available in New Zealand” (9 March 2022) <health.govt.nz>; and Therapeutic Goods Administration “COVID-19 vaccine approval process” (6 July 2021) Australian Government Department of Health <tga.gov.au>;
28 Medsafe “Medsafe's Evaluation and Approval Process” (12 September 2019) <medsafe.govt.nz> at “How is the safety of a medicine established before it is approved for use in New Zealand?”
29 See Gilchrist and Discovery NZ Ltd, Decision No. 2021-130 at 
30 World Health Organisation “Statement for healthcare professionals: How COVID-19 vaccines are regulated for safety and effectiveness” (11 June 2021) <who.int>: ‘Q: How are regulators speeding up the time it takes to authorise a COVID-19 vaccine? A: Many regulators globally have implemented faster access pathways for COVID-19 vaccines, without compromising on strict standards of safety, quality and efficacy…Exercising these provisions is a matter for those countries, taking into account the benefits versus risks in the context of the prevailing domestic pandemic situation.’; and see Ngā Kaitiaki Tuku Iho Medical Action Society Inc v The Minister of Health  NZHC 1107 at : ‘[The witness deposed] both the government and Medsafe were acutely alert to evidence of new COVID-19 variants appearing overseas at around this time. They perceived an urgent need to protect New Zealand workers in Managed Isolation and Quarantine Facilities (MIQ), customs, and those working at the border (frontline workers). For this reason, Medsafe considered the application on a “rolling” basis — as new information came in — rather than waiting to receive the full “dossier”, as they would have, ordinarily.’
31 Citing John Ioannidis “Reconciling estimates of global spread and infection fatality rates of COVID- 19: An overview of systematic evaluations” (2021) Eur J Clin Invest e13554.
32 See Johns Hopkins Medicine “COVID-19 vs. the Flu” (23 February 2022) <hopkinsmedicine.org> (the mortality rate of COVID-19 “is thought to be substantially higher (possibly 10 times or more) than that of most strains of the flu.”); H Keipp Talbot and others “Coronavirus disease 2019 (COVID-19) Versus Influenza in Hospitalized Adult Patients in the United States: Differences in Demographic and Severity Indicators” (15 December 2021) 73 Clinical infectious Diseases 2240; Gareth Iacobucci “Covid and flu: what do the numbers tell us about morbidity and deaths?” (14 October 2021) BMJ <bmj.com>; Johns Hopkins Bloomberg School of Public Health “No, COVID-19 Is Not the Flu” (20 October 2020) <publichealth.jhu.edu>
33 George Driver “AAP Factcheck: Lockdown critic says COVID-19 is only slightly worse than the flu” (14 September 2020) Australian Associated Press Factcheck <aap.com.au>
32 Medsafe “Comirnaty: New Zealand Data Sheet”(8 November 2021) <medsafe.govt.nz>; and Medsafe “Updated summary of risk management plan for Comirnaty (COVID-19 mRNA vaccine)” (27 January 2022) <medsafe.govt.nz>
35 Marshall and Television New Zealand Ltd, Decision No. 2021-138 at ; Bright and Discovery NZ Ltd, Decision No. 2021-152.
36 See Marshall and Television New Zealand Ltd, Decision No. 2021-138 at footnotes 4–6
37 See Smita Rawal and others “COVID-19 Vaccination among Pregnant People in the U.S.: A Systematic Review” (2022) American Journal of Obstetrics & Gynecology MFM (Epub ahead of print. PMID: 35283351)
38 Unite Against COVID‑19 “Vaccine advice if you have a health condition” (3 February 2022) New Zealand Government <covid19.govt.nz>; Centers for Disease Control and Prevention “COVID-19 Vaccines for Moderately or Severely Immunocompromised People” (17 February 2022) <cdc.gov>; Australian Government Department of Health “Additional clinical considerations for COVID-19 vaccination” (23 February 2022)
39 See, for examples in some groups: Annika Fendler “COVID-19 vaccines in patients with cancer: immunogenicity, efficacy and safety” (11 March 2022) Nature Reviews Clinical Oncology; Rebecca Grainger and others ”COVID-19 in people with rheumatic diseases: risks, outcomes, treatment considerations” (25 February 2022) Nature Reviews Rheumatology; Maria Prendecki, Michelle Willicombe and Stephen McAdoo “COVID-19 vaccination in patients with immunity-mediated kidney disease” (2021) 17 Nature Reviews Nephrology 790
40 Code of Health and Disability Services Consumers' Rights 1996, rights 6 and 7
41 Medsafe “Comirnaty COVID-19 Vaccine: Consumer Medicine Information Summary” (November 2021) <medsafe.govt.nz>
42 Broadcasting Act 1989, s 5(c)