New Zealand Media Council rules in favour of Bay of Plenty Times

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The New Zealand Media Council has ruled in favour of the Bay of Plenty Times in relation to a complaint made by ReDefined wellness centre co-director Jimmy August.

Overview
A complaint that an article reporting a gym's website claim that its sauna could kill tumours - was unbalanced, misleading, suggestive, damning, damaging to a business, unethical, malicious and unprofessional. The complaint was not upheld.

Background
The Bay of Plenty Times ran a story on its front page on March 31, 2021 about a local gym which said on its website that its infrared sauna was able to "kill off tumours and mutated cells." The story in the paper was headlined: Claim sauna kills tumours. The online version of the same story was headlined: Tauranga wellness centre ReDefined apologises after claiming infrared sauna could "kill off tumours".

The story said the claims made for the sauna were unproven, irresponsible, dangerous, offering false hope, misleading to consumers and may breach advertising and fair-trading laws. It included a response from the company saying the tumour claim, which had been removed from its website "a while ago", was not meant to indicate the infrared sauna killed cancer. It also said the company apologised for any misunderstanding if its marketing claims had confused anyone or came across as suggesting that the sauna killed cancer.

The story included comment from the Bay of Plenty DHB, Consumer NZ, the Commerce Commission, Medsafe and the Ministry of Health Cancer Control Agency.

The Complaint
Key points made in the complaint, filed by the ReDefined wellness centre's co-director Jimmy August, were:

• The journalist who wrote the story did not call ahead or email to arrange an interview, "showed up at the gym and ambushed us with accusations…and gave us a mere two hours to respond. This seems extremely unprofessional (especially as we are a small, local business)."

• The reporter's comment that the story came from an anonymous source "leads us to question whether this was a personal attack on us or that a rival gym owner had planted the seed for the story".

• The article was incredibly misleading. There were no quotes from anyone who had cancer or who had considered coming to use the sauna for treatment of tumours.

• The claims made on the website did not constitute advertising. The website mention was unintentional and taken from the sauna manufacturer, so it was "not even our own wording". It was also not actively promoted in an advertisement pushed out via any channels.

• The Bay of Plenty Times Facebook post that was published on the morning of March 31 was removed at 1.30pm. Comments made by people who were concerned about the validity and vindictive nature of the story when the story was first published, were swiftly wiped off Facebook as the post was deleted.

• The business was six months old and this negative publicity was malicious and unethical. Mr August wanted the on-line article to be removed and a correction notice in the paper.

Response
Bay of Plenty Times editor Scott Inglis said the paper stood by its reporting which was accurate, fair and balanced.

ReDefined was given fair opportunity to respond and its response was reported in the article. Further the article included a range of professional opinions, sourced from qualified health professionals and consumer affairs.

As for Facebook posts, these were activated and taken down at his discretion. There was an obligation to moderate comments made on its posts and in this case the post was allowed to remain active until the afternoon when it was no longer able to properly moderate it. The decision to take it down was not motivated by criticism.

NZME legal counsel Ashleigh Harding added there was nothing unusual or unprofessional about a journalist going to a place of business and requesting comment for a story. The journalist spoke to an owner on March 29, offered him the opportunity to respond in person, and then offered to send him the points to which she sought a response.

The reporter spoke to the person at 2pm, requested a response by 5pm the same day. However, the deadline was later extended. Sufficient time was given for the gym to comment.

She defended the decision not to disclose the source of the news tip which triggered the story. Confidential sources enjoy the benefit of anonymity should they request it. However, she confirmed that the source was not a rival gym owner.

The journalist provided the gym owners with criticisms of its sauna claims to give them an opportunity to respond.

It was not inaccurate to describe website content as advertising. The gym's website was messaging controlled by the business and clearly intended to influence people to use their facilities. Regardless of who authorised the claim, it was published on a site controlled by the business.

The reporting was not unethical or malicious. The journalist became aware of a therapeutic claim on the website and sought to establish if this had any scientific basis. She had a right to do so in the public interest, to help ensure that the public was not misled – particularly those who were already vulnerable due to poor health.

Ms Harding also expressed concern that the business had stated publicly that the Bay of Plenty Times had made false claims. The ReDefined denial, that it had never stated or used its sauna for these benefits, was inconsistent with information in screenshots of its website.

She was also concerned that the business had "tagged" the journalist's personal Instagram profile and that this had made the journalist concerned for her health and safety. The Bay of Plenty Times and its journalists provide an important role in providing the public with accurate, fair news. They have a right to investigate matters in the public interest and it is important that they are able to investigate such matters without fear of being targeted on social media.

Discussion and decision
It would appear that the main grounds for complaint come under the Media Council first principle which states that publications should be bound at all times by accuracy, fairness and balance.

We have no evidence that the reporting was inaccurate. Screenshots of the website taken days before the story was published include the words "kill off tumours and mutated cells" and there is no suggestion that there was any misreporting.

We also find that no clear case has been set out to establish that the journalist, the paper or the story were unfair, unprofessional or unethical. After getting a tip about ReDefined's website claim the reporter made inquiries and sought comment from appropriate authorities. Key points of criticism were then put to the gym to give it the opportunity to respond. Initially it was given a deadline of three hours and this was later extended till the next day.

The Media Council does not think that was unreasonable. Business owners are often required to act swiftly when something untoward happens, especially if their reputation is on the line. In this case the gym owners were given sufficient time to respond and the adequacy of that response was entirely in their own hands.

It was disingenuous of the business owners to say the website claim had been taken down "a while ago" rather than acknowledge it was after the reporter began making inquiries, which appears to be the case here.

Mr August's claim the story was "suggestive, damning and damaging to a business" also goes nowhere to being legitimate ground for complaint. If the story caused any damage the gym cannot blame the Bay of Plenty Times for reporting its unsupportable claims about the benefits of a sauna. ReDefined made unfounded therapeutic claims for its sauna and then tried to fudge things by diminishing responsibility in various ways. Its apology "for any misunderstanding" was also well short of an admission that it had got things wrong.

The complaint about the article is not upheld.

The Media Council also has concerns about the way ReDefined has acted following the story. The news media has a vital role to play in our communities and fair, accurate and balanced reporting is clearly in the public interest.

People have the right to complain if they think the media have breached ethical standards. Mr August sees this as a case of "bullying by a local paper of a small business" and exercised his right to complain to the publication and the Media Council.

But the Media Council is concerned that ReDefined went further and tagged the reporter's personal Instagram profile. Bullying on social media is a serious problem and encouraging online hostility, if that was the intent, is not the behaviour expected of a responsible business owner.

• Media Council members considering this complaint were Hon Raynor Asher, Rosemary Barraclough, Liz Brown, Jo Cribb, Ben France-Hudson, Jonathan MacKenzie, Hank Schouten, Marie Shroff and Tim Watkin.
Craig Cooper took no part in the consideration of this complaint.