The Media Council has found strongly in favour of Newsroom in a complaint from entrepreneur Sir Ray Avery over a story revealing he made a legal threat against a University of Auckland researcher if a paper unflattering of one of his medical products was not withdrawn.
Avery, the subject of a series of Newsroom articles looking into his personal back story and his professional products and promises, had asked the Media Council to have this website remove the article about his bid to suppress the study – or direct a full ‘clarification’ be published. He said the story was affecting his ability to raise funds for a successor to the original product studied by the university team.
It is the latest of a run of attempts by the former New Zealander of the Year to discredit the Newsroom investigation into him: he has threatened legal action, attempted to have stories removed under the Harmful Digital Communications Act, and filed a series of ‘formal’ complaints direct to Newsroom disputing our reports. We stand by the reporting.
A separate complaint from Avery about a Newsroom story on another of his products was not accepted by the Media Council as it was outside the time allowed for lodging a complaint.
The full Media Council finding on the story about Avery’s threats against the University of Auckland researcher is attached below.
Avery wrote to the researcher requesting a silent retraction of his paper – saying the paper “may result in a public debriding of Sir Ray’s reputation particularly with respect to Sir Ray Avery’s disruptive technology and design pertaining to the Lifepod incubator.”
(The Lifepod, and Avery’s bid to raise millions from New Zealanders in 2018 to fund it, was the subject of Newsroom’s original Avery investigation. That story can be found here.)
Avery told the researcher: You may wish to consult with your legal advisors, but unless I get a retraction I will hand it over to my lawyer Mai Chen and as part of my friendly FMCE [sic] you really don’t want this from a career perspective.”
In its decision, released this morning, the council found the story about that threat “contained no inaccuracy in relation to its key message of a threat to suppress publication of the results of tests relating to a device used to control intravenous drips, and indeed the complaint is not directed against that key message.
“It has not been shown there was any inaccuracy in the way in which the scientific background or history was covered. It has not been shown the article was unfair or unbalanced.”
Further, the council decision says: “On the legal threat aspect of the article, there can be no basis for complaint. It is a matter of considerable public interest if a person involved in marketing a new device relevant to the health of the public in New Zealand or overseas issues a serious threat designed to stop the publication of research into that device. Yet that appears to be what happened.
“The threat was personal, indicating the infliction of damage on the researcher’s career. Newsroom, in making the threat public in its headline and article, cannot be criticised.”
Avery had based his complaint against Newsroom on what he claimed was a retraction this year of the original research, which was published in the Cambridge University Press. The Media Council found his reliance on that ‘retraction’ was misplaced. “It is not a retraction. It is an addendum, that clarifies the ambit of the earlier article, without retracting any part of what was said.”
The council decision contains an important reinforcement of investigative journalism. “It is accepted that the Newsroom article may have been damaging to efforts to raise public funds for the Acuset device, and other devices marketed by the same promoters, and the reputation of its promoters.
“However, good investigative journalism inevitably causes displeasure and can cause economic damage. The fact of such damage in the absence of a breach of principle is not in itself any basis for complaint to the Media Council.
“The Media Council accepts that journalists must be able to carry out robust investigative journalism, even if that involves implicit or direct criticism of institutions or individuals in the public eye.”
The full decision is:
1. On September 6, 2018 Newsroom published an article as a Newsroom Special Inquiry headed Legal Threat to suppress clinical study. The article concerned what was said to be efforts by Sir Ray Avery to suppress publication of a clinical study carried out at Auckland Hospital that showed that an intravenous drip controller he was promoting did not work as well as expected.
2. The threat against publication related to a device designed to provide a cheap and easy-to-use method of delivering intravenous medicines and rehydration fluid more accurately to people in poor countries, replacing the cheap devices that hospitals in those countries were forced to use, rather than superior more expensive electronic pumps. The new device, known as the Acuset Controller, was promoted by Sir Ray Avery and his organisation. In the course of the article the background issue was the effectiveness of the Acuset device over the cheap roller clamp device that was commonly used in poor countries in substitution for expensive electronic pumps. A good deal of reference was made to the clinical study at Auckland City Hospital carried out from 2008 that had shown, it was said, that the Acuset device was not more accurate than the roller clamp.
3. However, the point of the article was the threat that Sir Ray Avery was said to have made to the researcher involved in the Auckland City Hospital trials. In 2015 the researcher had sent a copy of a paper that was about to be published, setting out the results of the trials, to Sir Ray Avery, as a matter of interest for him. The response from Sir Ray Avery was as follows:
“This paper may result in a public debriding of Sir Ray’s reputation, particularly with respect to Sir Ray Avery’s disruptive technology and design pertaining to the Lifepod Incubator … I am requesting a silent retraction of this paper. … You may wish to consult with your legal advisors, but unless I get a retraction I will hand it over to my lawyer Mai Chen and as part of my friendly FMCE [sic] you really don’t want this from a career perspective.”
4. The article dealt in detail with the interchanges that followed that threat, and correspondence between Sir Ray Avery and others, including Newsroom.
5. The complaint is contained in a number of documents authored by Sir Ray Avery. He has strong criticisms of the Auckland City Hospital trial and research paper, and says it was inaccurate in various ways. He claims that the current device being developed works more accurately than the standard roller clamp.
6. He refers to a Cambridge University Press article, which after what is referred to as an objective assessment, found no difference between the Acuset device and the standard roller clamp. Sir Ray Avery refers to an addendum to that article, (which he refers to as a correction), which recorded that the test discussed was part of an investigation into technology testing, and that advice had been received that the current Acuset device was not used in the study referred to in the CUP article.
7. He asks in various complaints to Newsroom and to the Media Council that Newsroom either remove the story immediately and cease republication, or incorporate his new evidence and advice, signalling the change at the top of the article.There should be a full “clarification”.
8. There have been a number of detailed responses by Newsroom to complaints directed to it, and to the complaint to the Media Council. In essence Newsroom says that it has not been shown that any of the background facts of the Auckland City Hospital testing, and the adverse findings, were wrong. It was made clear in the article that the test was on an earlier device, not the device currently marketed, and Sir Ray Avery’s version of what has happened is set out in the article.There has been no up to date testing carried out on the new device by Sir Ray Avery or his associates, or at least none that has been made available.
9. It is pointed out that the history of the Acuset device, the testing, and the arguments about that testing, were background.The real point of the story was that the results of such studies of devices designed for use to assist ill or injured people, should in the public good be made known to the public. Instead Sir Ray Avery had “legally threatened a researcher to keep that study quiet”. It was said:
“Avery claims he needs to get the story retracted so he can continue raising money. With respect, we believe the opposite. Given that Avery is still raising money, having this kind of information on the public record, for potential donors and investors to see if they wish, is very much in the public interest and exactly what probing journalism should do.”
10. Newsroom raised the question of whether the complaint was out of time. It was originally published on September 6, 2018 and on the basis that complaint would be out of time. However, it was republished on August 27, 2019. Recognising that the changes made were relatively minor and a result of the complaint, the Chair has nevertheless decided to accept this complaint in his discretion.
The key point
11. Sir Ray Avery does not set out the particular principle that he says has been infringed by Newsroom, but it can be inferred that it is Principle 1 that requires publications to be bound by accuracy, fairness and balance, and they should not mislead or misinform readers by commission or omission. In articles of controversy a fair voice must be given to the opposition view. These principles apply to the Newsroom article.
12. The point that stands out is that the complaint does not address the key message of the article, and does not assert that it was in any way untrue. That key message was that Sir Ray Avery had made a legal threat to suppress an Auckland University study, a threat that was of concern, given the need for the public to know all about studies on the efficacy of health devices. The complaint does attack the quality of the research, but does not deal with the issue of why Newsroom was wrong to angle the story in the way it did.
13. On the legal threat aspect of the article there can be no basis for complaint. It is a matter of considerable public interest if a person involved in marketing a new device relevant to the health of the public in New Zealand or overseas, issues a serious threat designed to stop the publication of research into that device. Yet that appears to be what happened. The threat was personal, indicating the infliction of damage on the researcher’s career. Newsroom in making the threat public in its headline and article, cannot be criticised.
14. The article did contain a detailed history of the background facts of the research, and the reactions to it.
15. As to the quality of the research carried out in 2008, and the usefulness of the current Acuset device, the Media Council has often said that it does not have the resources or skill to determine contested claims on scientific health issues.We cannot and do not make any comment on the merits of the first device, or the current device, or the Auckland City Hospital Research.
16. We do comment that the article cannot be criticised for a lack of balance or fairness when it deals with the background. This was a piece of investigative journalism. Sir Ray Avery’s responses to earlier articles are set out. His perspective, which rejects the quality of research and maintains the advantages of the Acuset device, can be fully understood from a reading of the article.The Newsroom author of the article responds to his answers and does not accept them. It is pointed out that it has always been open to the promoters of Acuset to commission new research which shows the benefits of the device. It could be fairly expected that such research be publicised.
17. We do note that the reliance by Sir Ray Avery on the Cambridge “retraction” is misplaced. As we have said, it is not a retraction. It is an addendum, that clarifies the ambit of the earlier article, without retracting any part of what was said.
18. It is accepted that the Newsroom article may have been damaging to efforts to raise public funds for the Acuset device, and other devices marketed by the same promoters, and the reputation of its promoters. However, good investigative journalism inevitably causes displeasure, and can cause economic damage. The fact of such damage in the absence of a breach of principle, is not in itself any basis for complaint to the Media Council. The Media Council accepts that journalists must be able to carry out robust investigative journalism, even if that involves implicit or direct criticism of institutions or individuals in the public eye.
19. The article in question contained no inaccuracy in relation to its key message of a threat to suppress publication of the results of tests relating to a device used to control intravenous drips, and indeed the complaint is not directed against that key message.
20. It has not been shown that there was any inaccuracy in the way in which the scientific background or history was covered. It has not been shown that the article was unfair or unbalanced.
21. The complaint is not upheld.
Media Council members considering the complaint were Hon Raynor Asher, Rosemary Barraclough, Katrina Bennett, Liz Brown, Jo Cribb, Ben France-Hudson, Jonathan MacKenzie, Marie Shroff, Christina Tay and Tim Watkin.
The Newsroom investigation into Ray Avery includes the following stories: