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BSA upholds complaint against Qantas-award-winning doco

By Steven | August 10, 2009

The Broadcasting Standards Authority has concluded that Let Us Spray, TV3’s “year-long investigation” into the effects of dioxin on the residents of Paritutu, was seriously unbalanced and unfair. It has also found that two associated TV3 news stories were unfair, unbalanced and inaccurate.

The complainants were the Ministry of Health, which was accused of covering up and ignoring the plight of the residents who lived close to the Ivon Watkins Dow factory, and Crown Research Institute ESR, which conducted the serum study measuring residents’ dioxin exposure that Let Us Spray said was badly botched.

The BSA concluded that the programme was dreadfully unfair to both, and ordered it to broadcast statements explaining why.

The documentary won a Qantas award in 2007 for television investigation of the year, even though ESR’s lawyer Matt McClelland sent the Qantas judges a copy of ESR’s complaint. (Disclosure: I acted for the Ministry of Health, so you may detect some bias in this post. These are my views not the Ministry’s).

Argument has been going for several years, and these decisions are probably among the half-dozen most significant in the BSA’s 20-year history.

The guts of the decisions against Let Us Spray:

1. TV3 presented a parade of sick residents who blamed their conditions on dioxin exposure. But it left out crucial information about the current state of scientific knowledge about the effects of dioxin. The gold standard of research in dioxin effects is the Institute of Medicine’s expert and independent bi-annual reviews of the research. But none of the residents’ conditions featured on Let Us Spray fall into the  IOM’s “sufficient evidence of association [with dioxin]” category. Three of the conditions featured on the programme were in the category of illnesses for which the research suggests no association with dioxin. Most of the other conditions come under the category of “inadequate or insufficient evidence to determine association”. Not only did TV3 not mention this itself, it edited its interview with the Ministry’s spokesman so that his references to current scientific understanding weren’t broadcast. The BSA said TV3 should have done more to convey this information to viewers.

2. TV3 commissioned a forensic accountant, John Leonard, to review the serum study. It used his findings to attack the study, alleging it was fundamentally flawed and downplayed the residents’ level of exposure. But it didn’t give the Ministry a copy. And it didn’t approach ESR – who conducted the study, remember – for their comments. When the Ministry and ESR were finally given a copy of his report, they were able to thoroughly debunk it. (The independent reviews of the Leonard report, including one by a WHO expert from the United States, are here. They acknowledge that Mr Leonard picked up a couple of minor glitches, but find that they are inconsequential. One reviewer suggests that Mr Leonard plainly didn’t have the expertise to review the study – and in fact, it’s clear from Let Us Spray that he’s a bit diffident about this himself.) The BSA said that TV3 should have given the Ministry and TV3 a copy of the Leonard report and sought their comments before broadcasting the documentary. It also damningly notes that TV3 has never broadcast this rebuttal in the two years since the broadcast.

What lessons can we draw?

First, that the Qantas media awards are seriously flawed. They do no quality checking at all, even when concerns are raised about nominees. If they’re supposed to be honouring excellence in journalism, that’s a big problem. They should be deeply embarrassed by this.

Second, the BSA was right in this case to order TV3 to hand over a copy of the field tape of its interview with Dr Jacob. TV3 fought this hard (which was a good part of the reason for the delay in this case). But the courts Court of Appeal has said that it’s impossible to gauge fairness and balance in situations like this without knowing what was edited out. TV3 is right to say that handing over field tapes can raise source-confidentiality concerns sometimes. But there were no such concerns here. I’ve said it before, but I think the BSA is legally required to be making orders like this more often than they do.

Third, broadcasters can’t get away with making serious accusations by dressing them up as someone else’s “personal beliefs” which then don’t require balance, or don’t require much balance. Particularly when they are implicitly buying into those beliefs.

Fourth, the BSA will continue to do whatever it possibly can to duck difficult scientific questions. I have some sympathy for it here. The scientific issues about dioxin are complicated, if not intractable. The BSA doesn’t have the expertise to tackle them (though it refused to use its powers to co-opt an expert when we invited it to). It would be a resource-heavy process. But still, the BSA found, for example, that the programme suggested that the serum study was seriously scientifically flawed. That’s an assertion that’s capable of being proved one way or another on the evidence. The complainants are really entitled to its decision on that, rather than have the BSA subsume it under fairness and balance.

Fifth, we’ll no doubt get some more whining from TV3 about how this sort of complaints process makes in-depth investigative journalism impossible. We should take this with a grain of salt. The two major flaws identified above are fundamental journalistic errors: any journalist should be embarrassed by them. TV3 failed to provide a copy of its expert report to those it was criticising, and it failed to report crucially relevant scientific evidence. If TV3 complains about the size of the complaint, it could be gently reminded that the Ministry’s original complaint was 10 pages long, and its original supporting submissions to the BSA were 22 pages long. (There were half a dozen attachments, the longest of which was a transcript of the programme). TV3’s response was 127 pages long and attached two chunky volumes of annexures, much of which the Ministry (and the BSA) considered irrelevant. If TV3 frets about the delays, it might be pointed out that they are almost all of its own making, as the BSA points out in an appendix to its decision. If TV3 bemoans the unfairness of having lawyers involved, it might reflect on the fact that in 95% of broadcasting complaints, an unrepresented complainant is up against the legal acumen and experience of TV3’s very able and knowledgeable legal experts… but that particular unlevel playing field doesn’t seem to concern TV3.

Finally, I’d say this is more grist for a couple of my perennial complaints: journalists who leave out important material because it will make their story less sexy; and media organisations that fail to broadcast some balancing material after they’ve been caught out – which would have minimised the damaging fall-out from an original failure to provide balance, maximised their ability to argue that the balance standard wasn’t breached because balancing material was supplied within the “period of current interest”, and incidendentally, performed a service to viewers by giving them further information with which to make up their minds about the story. (Except that, I suppose, this might have hurt TV3’s chances of getting a Qantas award for it…)

Topics: Broadcasting Standards Authority | 19,329 Comments »