Rohrbeck and Discovery NZ Ltd - 2022-092 (5 October 2022)
- Susie Staley MNZM (Chair)
- John Gillespie
- Tupe Solomon-Tanoa’i
- Linda Rohrbeck
BroadcasterDiscovery NZ Ltd T/A Warner Bros. Discovery
[This summary does not form part of the decision.]
The Authority has not upheld a complaint regarding an item on The Project discussing whether nurses who were not vaccinated against COVID-19 should return to the workforce given staff shortages. The complainant stated the broadcast breached the offensive and disturbing content standard, as well as other standards, as it encouraged division in Aotearoa New Zealand and the presenters’ comments were ‘uncalled for and unfair’. The Authority found the comments reflected the presenters’ opinions and were unlikely to cause widespread disproportionate offence or distress or otherwise undermine widely shared community standards. The remaining standards either did not apply or were not breached.
Not Upheld: Offensive and Disturbing Content, Promotion of Illegal or Antisocial Behaviour, Discrimination and Denigration, Accuracy, Fairness
 A segment on The Project, broadcast on 13 July 2022 discussed the question ‘should unvaccinated nurses be allowed back to work?’ The broadcaster commissioned a poll asking the public the same question, which found 43% of respondents answered ‘no’ and 57% answered ‘yes’.
 The segment included interviews with David Wills (director of Nurses Society of New Zealand | Te Kāhui Tapuhi o Aotearoa) and Deborah Cunliffe (Nurses for Freedom NZ Founder) discussing the question and, with Cunliffe, the poll results.
 Following the interviews, the following discussion occurred amongst the panel:
Jesse Mulligan: If you're a regular Project viewer, you'll know that we are very pro-vaccination, pro booster. I think we were pretty surprised to see that result today, 57% of New Zealanders, according to this poll, keen for those unvaccinated nurses to come back.
Jeremy Corbett: We need the staff, but I for one, I wouldn't want a family member being treated by an unvaccinated nurse.
Laura Tupou: I'm the same. I'm sorry. I just want to know that my health care workers are vaccinated and that they're all in the same camp.
Mark Richardson: Just for God's sake, get the jab, go back to work. Take one for the team. Every now and then, we have to do something we don't want to do. But your country's calling, get the jab and go back. I don't care what your rationale is behind, your country's saying we need you. So go and do something. It was like me fielding under the helmet. I didn't want to do it, but I did it for the good of the country.
Jeremy Corbett: Did it work? Did you win?
Mark Richardson: Never caught one.
 Linda Rohrbeck complained the broadcast breached various broadcasting standards as the presenters ‘were rude and insulting towards the unvaccinated’. Specifically:
- Offensive and Disturbing Content: the broadcast encouraged division in NZ. The presenters’ comments were ‘uncalled for and unfair. They influence the public and they should be held accountable for what they say on TV.’
- Promotion of Illegal or Antisocial Behaviour: the broadcast encouraged antisocial behaviour towards people who were not vaccinated.
- Discrimination and Denigration: The presenters’ personal opinions should not be aired on TV as they can influence public opinion and encourage division and segregation. The presenters discriminated against people who were not vaccinated.
- Accuracy: Noting the poll discussed was in favour of unvaccinated healthcare workers going back to work, ‘There was no reason for the presenters to make comments like "take one for the team" it is insulting and just wrong’.
- Fairness: there is no fairness when only one side of the story is pushed.
The broadcaster’s response
 Discovery did not uphold the complaint for the following key reasons:
Offensive and Disturbing Content
- Context is crucial in assessing whether the standard was breached. The following contextual factors were relevant:
(a) The audience heard from appropriate spokespeople from both sides of the nursing debate. Both guests were treated with respect and offered the opportunity to present their perspectives.
(b) The Project's style is well-established, the tag line for the show is 'News done differently'. The programme routinely features commentary, banter and the voicing of opinion amongst the presenters. The Committee maintains that the presenters' discussion is typical of the kind of commentary which regularly features on the programme and was well within audience expectations of the programme.
(c) The presenters' comments were clearly identifiable as personal opinion.
(d) The presenters acknowledged that The Project is pro-vaccination and that they were surprised by the poll results, which showed 57% of New Zealanders agreed with dropping the mandate on nurses in the workforce.
- In light of the above contextual factors, and the focus of the segment about vaccination of healthcare workers, Discovery did not consider the broadcast exceeded the boundaries of this standard and would not have caused widespread offence amongst regular viewers.
Promotion of Illegal or Antisocial Behaviour
- Discovery doubted any ‘reasonable viewers would have interpreted the Broadcast as encouraging the audience to break the law or engage in any antisocial behaviour’.
Discrimination and denigration
- The ‘presenters' discussion did not reach the threshold to be considered hate speech or a sustained attack on any sections of the community and we maintain the discussion was typical of the free and frank expression of views The Project routinely features.’
- Discovery also referred to BSA decisions finding that ‘those opposed to Covid vaccination are not a “recognised section of society” to which the discrimination and denigration standard applies’.1
- The commentary presented was ‘clearly identifiable as opinion, to which the Accuracy standard does not apply.’
- The complaint did not suggest the broadcast was unfair to any specific individuals or organisations.
 The purpose of the offensive and disturbing content standard2 is to protect audiences from viewing or listening to broadcasts that are likely to cause widespread disproportionate offence or distress or undermine widely shared community standards.3 The standard takes into account the context of the programme, and the wider context of the broadcast, as well as information given by the broadcaster to enable the audience to exercise choice and control over their viewing or listening.
 We consider the offensive and disturbing content standard is most relevant to the substance of the complaint, and have focused our consideration on this standard accordingly. We deal with the remaining standards briefly at paragraph .
 We have watched the broadcast and read the correspondence listed in the Appendix.
 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 against any harm potentially caused by the broadcast. We may only intervene when the limitation on the right to freedom of expression is reasonable and justified.4
 We have previously acknowledged the importance of allowing people to freely express their opinions, particularly in relation to topics with strong and differing views.5 In this instance, we consider these opinions were expressed respectfully and were unlikely to cause widespread disproportionate offence or distress or otherwise undermine widely shared community standards. Therefore, for reasons further outlined below, we do not uphold the complaint.
 In reaching our finding, we acknowledge context is crucial in assessing a complaint under the standard and have identified the following key contextual factors:
- The Project is an unclassified news and current affairs programme (it is not required to carry a rating) and is targeted at an adult audience.6
- The Project’s presentation and style are both well-established. It includes a mixture of news and entertainment, and frequent comedy and banter among the hosts (some of whom are well-known comedians, including Jeremy Corbett).7
- The segment included interviews with relevant spokespeople who had differing views on the issue.
- The presenters’ comments following the interviews were expressions of opinion. Further, the majority of the comments reflected the presenters’ personal opinions on whether they / their whānau would choose to be treated by a nurse that was not vaccinated.
- Regular viewers would have known the programme’s position on vaccination.
 We acknowledge Richardson’s comments were directed towards nurses who were not vaccinated. However, the comments constituted his opinion, to which he was entitled, and we do not consider his comments reached any threshold justifying regulatory intervention and a corresponding restriction on freedom of expression.
 We consider the remaining standards either did not apply or were not breached:
- Promotion of illegal or antisocial behaviour:8 The purpose of this standard is to prevent broadcasts that encourage audiences to break the law, or are otherwise likely to promote criminal or serious antisocial activity.9 Taking into account the context, we do not consider the relevant comments were likely to promote such conduct towards the unvaccinated.
- Discrimination and denigration:10 The standard protects against broadcasts which encourage the discrimination against, or denigration of, ‘sections 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. Like other broad groups previously considered by the Authority, people who are not vaccinated, or nurses (as an occupation) are not ‘recognised sections of the community’ to which the standard applies.11
- Accuracy:12 The standard protects the public from being significantly misinformed.13 There is no allegation any portion of the broadcast was inaccurate. In addition, the requirement for factual accuracy does not apply to statements clearly distinguishable as analysis, comment or opinion.14 Accordingly, this standard was not breached.
- Fairness:15 The standard protects the dignity and reputation of those featured in programmes.16 It ensures individuals and organisations taking part or referred to in broadcasts are dealt with justly and fairly and protected from unwarranted damage. The complainant’s submission under this standard appears focused on the ‘fairness’ of presenting ‘one side’ of the story rather than the treatment of any featured individual or organisation. In any event, in line with previous decisions, people who are not vaccinated do not constitute an ‘organisation’ for the purposes of the standard.17 Accordingly, the standard does not apply.
For the above reasons the Authority does not uphold the complaint.
Signed for and on behalf of the Authority
5 October 2022
The correspondence listed below was received and considered by the Authority when it determined this complaint:
1 Linda Rohrbeck’s complaint to Discovery – 14 July 2022
2 Discovery’s response to the complaint – 8 August 2022
3 Rohrbeck’s referral to the Authority – 8 August 2022
4 Discovery’s confirmation of no further comments – 12 August 2022
1 Citing Donald and Television New Zealand Ltd, Decision No. 2021-033
2 Standard 1, Code of Broadcasting Standards in New Zealand
3 Commentary, Standard 1, Code of Broadcasting Standards in New Zealand at page 8
4 Introduction, Code of Broadcasting Standards in New Zealand at page 4
5 See Yandall & Thomas and Discovery NZ Ltd, Decision No. 2022-069 at 
6Hibbs and Discovery NZ Ltd, Decision No. 2022-074 at 
7 As above
8 Standard 3, Code of Broadcasting Standards in New Zealand
9 Commentary, Standard 3, Code of Broadcasting Standards in New Zealand at page 11
10 Standard 4, Code of Broadcasting Standards in New Zealand
11 For people that are not vaccinated, see: Gray, Scott, Vickers and Vink and Mediaworks TV Ltd, Decision No. 2019-020, at ; for nurses, see: O’Neill and Television New Zealand Ltd, Decision No. 2022-064 at 
12 Standard 6, Code of Broadcasting Standards in New Zealand
13 Commentary, Standard 6, Code of Broadcasting Standards in New Zealand at page 16
14 Guideline 6.1
15 Standard 8, Code of Broadcasting Standards in New Zealand
16 Commentary, Standard 8, Code of Broadcasting Standards in New Zealand at page 20
17Donald and Television New Zealand Ltd, Decision No. 2021-033, at