Some rules need to change

Some rules need to change

Content note: This article discusses transphobia, and includes examples of it.

I’ve always been big on rules. When I was a kid, I had a lot of trouble grasping the idea that there was a difference between “right and wrong” and “following the rules”. My parents used to quip that I’d probably grow up to be a lawyer.

I don’t think the idea that some rules are just wrong really clicked for me until my early twenties. I’m sure the transition was far more gradual than I recall, but I can remember one moment that certainly feels like a turning point in retrospect.

When I was 21, my partner at the time complained to me about a set of traffic lights that turned red far too quickly, and as a result many people would just drive through after they had turned red. A younger me probably would have said something judgemental about it being wrong to run red lights, but instead I said I thought the lights should be changed because they obviously weren’t working.

Though I came to it fairly late, this idea that rules — including the law — aren’t always right has very much solidified in my mind since then. I’ve also learned a lot about how to work within systems of rules, which any long-time readers will surely have seen in my writing on topics such as the Advertising Standards Authority and on the Official Information Act.

One set of rules that I think currently needs to change is the Births, Deaths, Marriages, and Relationships Registration Act (BDMRR Act). One of the things regulated in this law is the process through which someone can change the sex marker on their birth certificate.

Currently, changing the equivalent marker on other official documentation, such as a driver licence or a passport, is a pretty sensible process. It only requires a statutory declaration. Changing the same marker on a birth certificate, however, is a challenging and inaccessible process that requires medical intervention and the family court.

If you see any claims that the Media Council — in its ruling discussed below — found the article was exonerated in this respect, or that they found the article was not discriminatory, I hope you’ll keep in mind the precise wording of the rule that the “not upheld” ruling refers to.

Thankfully, there is a bill currently before parliament that aims to update this law. It went through the standard consultation process a year ago, receiving over 500 submissions.

468 of those submissions were sent in by the Green Party (they can be read here and here), who conducted a campaign they called Documents with Dignity to collect submissions from people who backed their call for the process for correcting the sex marker on a birth certificate.

You can peruse all submissions received on the bill on the Parliament website, including my submission in support of streamlining the process for correcting birth certificates.

In August 2018, after the consultation period was finished, the Governance and Administration Select Committee published their report on the bill. They proposed adding changes in the bill that would allow the sex marker on a birth certificate to be corrected on the basis of a statutory declaration, as well as including the option of “intersex” and “X (unspecified)” for this marker.

These suggestions seemed to have the full support of the committee, which I think is significant in this context. The National Party has historically held more conservative stances regarding the rights of gender and sexual minorities: 92% of National MPs voted against Homosexual Law Reform in 1986, and 54% of National MPs voted against the Marriage (Definition of Marriage) Amendment Bill at its third reading in 2013. However, the reported noted that the National Party members on the select committee “do not wish to stand in the way of reform of self identification of nominated sex on birth certificates”.

Over recent months, an anti-transgender group opposing the proposed changes in the BDMRR Bill, calling itself “Stand Up For Women”, has been complaining that there wasn’t adequate consultation on the bill and encouraging fellow TERFs to contact members of parliament to express their disagreement.

If you’d like to know more about the proposed changes, and what you might be able to do to help improve things for trans people in New Zealand, you can have a look at the Right to Self ID website (for full disclosure, I helped to proofread the template letter on this website) or this page set up by Gender Minorities Aotearoa to provide an overview of what these changes will mean.


If you look through the list of submitters on the BDMRR Bill, you might notice something odd. A bunch of the submitters’ names are prefixed with “Miss” or “Mrs”.

The reason for this is, sadly, bigotry against transgender people. Particularly against transgender women.

Many of the people who submitted on the bill believe, wrongly of course, that transgender people are all incorrect about their gender. Those who subscribe to this ideology are commonly referred to as TERFs – Trans-Exclusive Radical Feminists. Over the past few years, many of them have come to strongly object to that term, so it’s worth knowing that if you see someone describe themselves as “gender critical”, they’re almost certainly referring to the same trans-exclusionary ideology.

This ideology is what those submitters have alluded to by prefixing their names with “Miss” or “Mrs”. The idea is that, by using this title, they are signifying that they are “real” women. They consider this to contrast (again, wrongly) with transgender women, who they do not believe are women.

You can find other varieties of this tactic online, for example by looking at TERF accounts on Twitter. For example, some will include “XX” in their username, referencing sex chromosomes, in a nod to their ideology. Some others include text or images of their definition of woman (typically they use the wording “Adult human female”) in their bio or avatar, for similar reasons.

These are implicit versions of a much more explicit rhetorical technique often used by TERFs, which is to outright say that a trans person’s gender is not what they say it is. They will often do this by refusing to use appropriate pronouns to refer to someone, for example referring to a trans woman as “he” and “him”. This tactic is known as misgendering.


I wish I could tell you that this sort of gross and disrespectful bigotry was limited to the basements of the internet, but I can’t. Last year, the New Zealand Herald published an article on the BDMRR Bill by one of their opinion writers, Rachel Stewart, and it included a lot of misgendering.

(I don’t want to raise the platform of the bigoted statements made in her article, so I’m not going to the link to it. If you really want to find it, you can go searching.)

Myself and another complainant, whose name I have also redacted below in an effort to protect them from harassment, independently lodged complaints about the article. These went first to the editor of the NZ Herald and then to the Media Council, in November 2018.

Today, the Media Council has published their decisions on these complaints on their website. My complaint was not upheld, whereas the other complainant’s was upheld in part.

Unfortunately, the part of their complaint that was upheld is nothing to do with the bigotry expressed in the article. Rather, it is about this paragraph, which was misleadingly put forth as a statement of fact:

Sure enough, American transgender lobby groups are being funded by the likes of billionaires Warren Buffett and George Soros. Why? Because investors want to help normalise the altering of human biology, and Big Pharma stands to make a fortune. It’s already started.

Rachel Stewart

Because that complaint was upheld, the Herald has now had to publish a note at the top of the article regarding the ruling. They have also published a note about the ruling on page A14 of today’s paper.

My complaint focussed on a different issue. I’ve included my complaint and all responses at the bottom of this article, so scroll down if you’d like to read them. Please note that I have redacted a person’s name from my article, including where I quote Stewart using it, so that repeating her statements here won’t add to the online abuse already aimed at this person.

As far as I’m aware, the Media Council (formerly known as the Press Council) is really the only system of oversight that can hold mainstream media to account in New Zealand. Like the Advertising Standards Authority, it’s an industry body of voluntary regulation. The NZ Herald is one of the Media Council’s paying members, and has agreed to abide by its rulings.

However, the grounds on which the Media Council will hear a complaint — its Principles — are quite limited. They are mostly what you would expect, setting in place requirements around things such as accuracy, clearly distinguishing between comment and fact, and declaring conflicts of interest.

The closest they have to a Principle that deals with this kind of bigotry is Principle 7, which regards Discrimination and Diversity. However, this rule only restricts some very specific behaviour:

Issues of gender, religion, minority groups, sexual orientation, age, race, colour or physical or mental disability are legitimate subjects for discussion where they are relevant and in the public interest, and publications may report and express opinions in these areas. Publications should not, however, place gratuitous emphasis on any such category in their reporting.

Media Council

The Media Council’s principles give no grounds under which I could argue Stewart’s column should be censured because it is harmful, or bigoted. I could only argue that it places “gratuitous emphasis” on transgender people, but this is not a commonly used or clearly defined phrase.

Honestly, because they don’t really have a rule for it, I did not think the Media Council was very likely to uphold my complaint. I already knew going into this that they rarely seem to uphold any complaints. I’ve written in the past, for example, about a complaint of mine that they did not uphold, which I still think was a bad decision on their part.

Thankfully, I don’t think my complaint needed to be upheld to send a message to the editorial team at the Herald that this is not acceptable. That’s why I included several references to NZME’s published commitments to inclusion and diversity in my complaint, even though they would not be directly relevant to the Media Council.

I hope my message has been heard.

This short saga has also made me think that, like the BDMRR Act, the Media Council’s rules may need to change. Though they do have a rule in place that appears as though it is intended to protect vulnerable groups from harm, I think the Media Council’s decision that Rachel Stewart’s transphobic article did not breach this rule goes to show that it is not fit for purpose.

This paragraph, quoted from my complaint, gives some context to the concerning precedent that may have been set by the Media Council’s decision here:

I hope that the NZ Herald would not consider, under any circumstances, publishing a similar opinion piece which treated gay, lesbian, bisexual, intersex, or asexual people with the same disdain as Stewart has shown here for transgender people.

Mark Hanna

If the Media Council will not be able to protect minority groups from bigotry in the media, then it is up to editors to refuse to publish that bigotry. I think the NZ Herald editor who wrote the paper’s response to my complaint got it exactly right here in his initial response to my complaint:

This does not mean columnists are entitled to publish carte blanche – discretion lies with the editor.

David Rowe, NZ Herald


Complaint documents

My initial formal complaint to the New Zealand Herald:

Tēnā koe,

I am writing to you to lodge a formal complaint regarding Rachel Stewart’s column published in the NZ Herald and on the nzherald.co.nz website today, headlined “Rachel Stewart: TERF a derogatory term to shut down debate” (published online at [URL redacted]).

Put bluntly, the article is horrendously transphobic. It is harmful, and I think the decision to publish it was incredibly irresponsible.

Stewart’s transphobic views have been widely known for some time now, in no small part due to her expressing them openly on social media. Just two weeks ago, for example, in response to positive coverage on Stuff of a transgender person who is not a woman, Stewart tweeted a link to the article along with this message:

“Have read this, and I need a cold compress & a lie down in a darkened room. I’m sorry, but I cannot partake in the delusion that this pregnant woman is a man. Not because I’m transphobic (I’m not), but because I recognise when people need psychiatric help.”

I’m not sure if you’re familiar with the concept of misgendering: referring to a transgender person as though they were of a different gender, commonly through the use of inappropriate pronouns like using “he” when referring to a woman. It’s a common tactic among transphobic people meaning to deny transgender people’s genders. For many transgender people it is used against, it can be very distressing.

In her article today, Stewart repeatedly uses this tactic, both against imagined transgender women and against [name redacted], with clear intention to falsely imply that they are men. Examples include:

“the current craze of people – overwhelmingly men – who say they were born into the wrong body”

“Under the proposed new law, a man can call himself a woman without ever medically transitioning (most never do) and insert himself in female-only spaces such as changing rooms, women’s refuges, and prisons.”

“a grown male stranger naked in the changing rooms at her local swimming centre”

“How about [name redacted] competing straight-faced as a female in [sport redacted]?”

I hope that the NZ Herald would not consider, under any circumstances, publishing a similar opinion piece which treated gay, lesbian, bisexual, intersex, or asexual people with the same disdain as Stewart has shown here for transgender people.

I do not see any reason why that same bare minimum level respect should not be extended to transgender people. They certainly deserve it, and I would have hoped that would be clear to everyone working at the Herald.

Just over a year ago, NZME issued a press release proudly proclaiming that they were “the first media company in New Zealand to be awarded the Rainbow Tick, acknowledging its active effort to be a diverse, innovative and inclusive organisation.” (http://www.scoop.co.nz/stories/BU1710/S00268/nzme-awarded-rainbow-tick.htm)

The press release went on to discuss NZME’s Inclusion and Diversity strategy, saying it encouraged employees to “bring your whole self to work”. After this, NZME adopted rainbow branding in celebration of its Rainbow Tick accreditation.

The decision to publish Rachel Stewart’s transphobic article today clearly flies in the face of any commitment NZME might have had to encouraging diversity. I don’t know how any transgender person working at NZME could be comfortable with the decision to publish it, and I hope it hasn’t been too distressing for them.

This sort of transphobia existing in the darkest corners of social media is bad enough, but it’s quite another thing for it to be published in the country’s most widely read newspaper. Intentionally or not, the decision to publish Stewart’s transphobic views there comes with clear tacit endorsement of them. I can only imagine how distressing that decision must be for any transgender people working at the Herald, or who may hope to one day work there.

To my reading, the Media Council’s principle on “Discrimination and Diversity” is not clear where it stands on this point, noting only that publications should not “place any gratuitous emphasis” on issues of gender or minority groups. Whether this opinion piece falls afoul of that principle or not, I hope on reflection you will agree with me that it should never have been published. The fact that it was published as an opinion piece is not sufficient justification for its bigoted content.

The impact reporting has on people is important. The Herald has published some great work with a good, positive impact on people. The work done by Herald journalists on the mistreatment of Ashley Peacock is a great example on this. But for the Herald to take credit for that, it must also take responsibility for the harm done by other reporting.

I hope you will retract Rachel Stewart’s transphobic opinion piece without further delay and publish a prominent apology to those harmed by it, along with a statement in support of transgender people and a commitment to never publish similarly transphobic articles in the future.

Ngā mihi,
Mark Hanna

The response I received from the NZ Herald:

Kia ora Mark,

Thank you for your email.

I apologise for the unintended offence caused to you by Rachel Stewart’s column.

Stewart’s piece is clearly a very personal view of a very difficult issue. It is clearly marked as her opinion.

In the column, Stewart argues that fundamentally, “all human beings – including trans peoples – deserve human rights and respect”.

However, she feels that the adoption of the term “Terf” has been used to shut down debate on the issue of transgender rights – which is important given proposed changes to the Births, Deaths, Marriages and Relationships Registration Act.

She takes issue with the use of the term by a Member of Parliament, Louisa Wall.

Stewart raises concerns about changes to the law, which she feels have been difficult to debate in the present climate.

Stewart acknowledges some of the scenarios she describes in the column are fanciful:

“Look I’m trying to make light of this stuff because no other approach has our government listening.”

Stewart’s discussion of the funding of transgender groups and the role of Big Pharma is posited as a theory to answer a question: “When movements gain full throttle as rapidly as the trans train has, it must be asked, who stands to gain from it?”

While some of the language used by Stewart is confronting, it is important that difficult issues can be freely debated. In this case, it is one which has drawn strong comment from an elected MP and relates to an impending law change.

The issue has emerged out of the debate about the decision to ban uniformed officers from marching in the Pride Parade, which has been covered extensively.

Part of the brief of a columnist is to comment – often provocatively – on social issues and attitudes. They have licence to push the boundaries of what might be considered “polite” or politically correct in everyday conversation.

While causing offence is certainly not the intention, it is almost an inevitable consequence of a cutting-edge columnist.

This does not mean columnists are entitled to publish carte blanche – discretion lies with the editor. As such, I can assure you an editor does not publish such comment lightly.

The easier course is, naturally, to censor anything that might be seen to be controversial: it would certainly make an editor’s life less troublesome. However, the easy course is not at always the best course, and an editor must always be mindful of a duty to protect freedom of speech and provide a plurality of opinion.

We note, too, that the NZ Media Council has ruled that readers do not have the right to not be offended.

“No-one is forcing the complainant to read that column or even that newspaper or website.” The reader has a right to ignore a columnist and hold different views, the council says, but that does not mean they have the right to stop the columnist expressing theirs.

In response to Rachel Stewart’s column, we have welcomed a contrasting view from Louisa Wall, which can be read here:

https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12168621

You are also welcome to make your own views publicly known in a letter to the editor to be considered for publication. I have included the submission guidelines below.

Kind regards,
David Rowe
Senior newsroom editor
NZ Herald

My escalation to the Media Council:

Tēnā koutou,

I am writing to you to escalate a formal complaint regarding Rachel Stewart’s column published in the NZ Herald and on the nzherald.co.nz website on 2018-11-28, headlined “Rachel Stewart: TERF a derogatory term to shut down debate” (published online at [URL redacted]).

On the day it was published, I sent a formal complaint to formalcomplaints@nzherald.co.nz. The next day, I received a response from the editor. I have included both of these messages at the bottom of this email.

I was disappointed to find that the response I received from the editor did not directly address any of the issues I had raised in my complaint. Since having received this response, I have become aware that an identical response was also sent to others who lodged complaints about the same article. I have heard from other complainants that their complaints dealt with substantially different aspects of the article, but that these issues they raised were also not dealt with by the identical response they received from the editor.

As well as the issues raised in my original complaint, I would like to address parts of the response I received from the editor.

The editor highlighted the disclaimer included at the end of Rachel Stewart’s article that “all human beings – including trans people – deserve human rights and respect”.

I have a background in anti-quackery activism. Over the past few years, I’ve lodged dozens of complaints with authorities such as Medsafe and the Advertising Standards Authority regarding misleading health claims in New Zealand advertising, as well as writing about the various forms of regulation around this issue in New Zealand and where they fall short. One feature that comes up again and again in this context is the false disclaimer. In the context of misleading health claims, it typically takes a form like this:

“Our product can cure cancer.

We don’t make any claims that our product can treat or cure any disease.”

You might be familiar with false disclaimers in other contexts, such as in the case of sentences starting with “I’m not racist, but”.

I believe the disclaimer at the end of Rachel Stewart’s article is a false disclaimer of this nature.

Stating that she believes trans people deserve human rights and respect does not somehow negate the lack of respect she shows in the intentional misgendering in her article, which I detail in my complaint.

Nor does this false disclaimer negate her campaigning against the rights of trans people, such as her signing of a letter written by a group dedicated to challenging and undermining the rights of transgender people in New Zealand, which seeks to write biological essentialism – the philosophy underlying the incorrect view that trans women are really men – into law.

The response I received from the editor also has a focus on offence, including what is commonly known as a “not-pology” of the form “sorry you were offended”, which implies all responsibility falls to the person receiving the apology.

At no point in my complaint did I raise offence as an issue. Rather, I explained that publishing bigotry on this level does harm. As I stated in my original complaint, “for the Herald to take credit for [reporting that has a good, positive impact on people], it must also take responsibility for the harm done by other reporting”.

Regarding the Media Council’s principles, as expressed in my complaint to the Herald, I unfortunately find the wording of the principle regarding Discrimination and Diversity to be confusing and unclear. It notes that publications should not “place gratuitous emphasis on any such category [of gender, religion, minority groups, sexual orientation, age, race, colour or physical or mental disability] in their reporting”. However, I am not sure what is meant by “gratuitous emphasis”, or where the line might fall.

I would hope that you will agree with me that the publication of bare-faced bigotry such as what was seen in Stewart’s article should not be acceptable under the Media Council’s principles. As I expressed in my complaint to the Herald, I do not believe it would be seen as acceptable to publish a similar level of bigotry were it aimed at gay, lesbian, bisexual, intersex, or asexual people. I do not see any reason why that standard should be different for transgender people.

I note that, since my complaint, the Herald has published a response by Louisa Wall, and they have also published a small correction to one part of Stewart’s article that was factually incorrect. I do not believe either of these responses deal with anything that I have raised in my complaint, and I stand by my recommendations for how the Herald should proceed:

“I hope you will retract Rachel Stewart’s transphobic opinion piece without further delay and publish a prominent apology to those harmed by it, along with a statement in support of transgender people and a commitment to never publish similarly transphobic articles in the future.”

Thank you for considering my complaint.

Mark Hanna

The NZ Herald editor’s response to the Media Council:

Dear Mary,

Thank you for the opportunity to respond to these complaints. I will address both complaints in this response, as they touch on similar issues and relate to the same Media Council Principles.

Both Mark Hanna and [name redacted] argue that the column “TERF a derogatory term to shut down debate”, by Rachel Stewart, breaches Principle 7 – Discrimination and Diversity. [name redacted] argues the column also breaches Principle 4 – Comment and Fact – and likely Principle 5, Columns, Blogs, Opinion and Letters.

While I understand the concerns expressed by Mr Hanna and [name redacted], I do not agree that the column is in breach of Media Council principles.

The column needs to be judged as a whole, and in the context of a wider debate.

The article is an opinion piece and is clearly labelled as such. It is a response to comments made by a publicly elected Member of Parliament, Louisa Wall, in which she was recorded saying: “I don’t want any f***ing Terfs at the Pride Parade.”

The column is also written in the context of proposed changes to the Births, Deaths, Marriages and Relationships Registration Act.

Stewart argues that the use of the term “terf” – or trans-exclusionary radical feminist – is being used to shut down debate on the issue.

It emerged out of the discussion surrounding the decision to ban uniformed officers from marching in the Pride Parade, which has been covered extensively.

While there had been some reporting on the Births, Deaths, Marriages and Relationships Registration Bill, it had been limited, with little coverage of dissenting voices.

In Britain, a similar discussion is taking place about reforms to its Gender Recognition Act to allow people to self-identify and has been the subject of far more extensive media coverage.

That why it is important Stewart’s views should be allowed to be heard.

[Name redacted] argues Stewart breaches Principle 4 – Comment and Fact when she writes: “Sure enough, American transgender lobby groups are being funded by the likes of billionaires Warren Buffett and George Soros. Why? Because investors want to help normalise the altering of basic human biology, and Big Pharma stands to make a fortune.”

It is a matter of public record that Buffett and Soros have funded, through charitable foundations, transgender groups in the United States. While it could be argued Stewart is drawing a long bow to the potential gains made by pharmaceutical companies, exploring such a theory is not in itself a breach of Media Council principles and I believe there is sufficient information available online and elsewhere for readers to make up their own minds.

I strongly reject [name redacted]’s claim of anti-semitism in Stewart’s column. Mentioning Soros as being among billionaires to have donated to transgender lobby groups does not prove such a claim. His ethnicity or religious background is not relevant and is not mentioned. The statement certainly does not place “gratuitous emphasis” on a protected group.

[Name redacted] also argues that the following paragraph breaches Principle 4:

“I don’t know about you, but I wouldn’t want to be locked up alone in a cell all night with a hairy, muscly, sex-starved inmate of either gender – but particularly one with his full kit and caboodle intact.”

This is clearly Stewart’s personal view, and not a factual assertion that “trans women prisoners will be rapists”, as [name redacted] says.

I also disagree that the statement breaches Principle 7 – Discrimination and Diversity. The principle holds that: “Issues of gender, religion, minority groups, sexual orientation, age, race, colour or physical or mental disability are legitimate subjects for discussion where they are relevant and in the public interest, and publications may report and express opinions in these areas.”

While the language used by Stewart is confronting, she is expressing personal views that reflect her own fears. Unacceptable as they may seem to many readers, some of her concerns are shared by others. Given that these opinions relate to an impending law change, I believe it is relevant and in the public interest to express them.

I do not agree that the column is in breach of Principle 5 – the article is clearly identified as an opinion piece. I not believe the requirements for a foundation in fact have been breached. We did acknowledge one factual error in the piece – relating to the earliest age at which certain medical treatments are given to children. This was corrected both in print and online and does not undermine Stewart’s fundamental arguments.

In his complaint Mr Hanna, refers to a letter signed by Rachel Stewart and comments made earlier on Twitter. Neither is relevant to the complaint – the column must be judged on the words within it.

Mr Hanna argues that Stewart is guilty of misgendering. The Herald agrees that transgender individuals should be referred to by the gender by which they live, and that is our reporting policy.

However, when Stewart uses the pronouns in the paragraphs quoted she is talking in general terms and about hypothetical scenarios under the new law, not about transgender individuals. The reference to [name redacted] does not use such a pronoun.

Mr Hanna disregards Stewart’s conclusion in her column as a false disclaimer, however I don’t think it can be dismissed outright and must be considered as part of assessing the column: “I believe all human beings – including trans people – deserve human rights and respect. What I don’t believe is why anyone questioning the obvious dangers lurking within the proposed new law, should equate to them not being afforded the same.”

Mr Hanna mentions NZME’s Inclusion and Diversity strategy and its Rainbow Tick accreditation. He argues that publishing Stewart’s views is a tacit endorsement of them.

This is incorrect. The Herald aims to be a broad church of opinion, and publication of an opinion is certainly not an endorsement of that viewpoint.

It is NZME’s policy to be inclusive and diverse in all of our operations, actions, policies and procedures.

However, we do need to be a platform for robust debate, even if that is sometimes uncomfortable or painful.

I agree with Mr Hanna that the impact of reporting is important, and the Herald must take responsibility for any harm done by its reporting.

The reaction to this column has been very strong on both sides. On social media, the debate has been passionate and sometimes vicious. This shows both the difficulty of having such a discussion in mainstream media – but also the importance of doing so.

It is better, I believe, that views such as those expressed here by Stewart can be discussed and debated in the open.

Since publishing the column, the Herald has welcomed a response from Louisa Wall and a piece from ActionStation, providing views from trans people on the issue.

https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12168621

https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12172412

This month, we have run an-depth news feature on the Births, Deaths, Marriages and Relationships Registration Bill, explaining the issue, the political implications and canvassing people on both sides of the debate.

https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12180576

We have also run an editorial, which addresses the need to have an open debate about the Bill, but also makes the Herald’s own position clear:

“The Herald believes that trans people should be recognised and respected according to the gender by which they live. The proposed law change removes potentially discriminatory processes which make it harder for those without the resources to meet the medical criteria and go through a Family Court process.

In principle, we support the bill.”

https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12180948

While, of course, Stewart’s column must be judged on its own merits, it has been the catalyst for discussion and reportage which has ultimately helped our audience better understand the issues involved.

Kind regards,
David Rowe
Senior newsroom editor
NZ Herald

My final response to the Media Council:

In their response, the editor denies that Rachel Stewart used misgendering in her article. I believe it is clear that she was not referring to hypothetical cis men pretending to be trans women. Rather she was referring to hypothetical trans women, and using misgendering as a rhetorical device to imply that they are really men.

This is all particularly clear when the context of Stewart’s transphobic statements elsewhere is taken into account, which is why I believe it should not be entirely ignored as the editor suggests.

Though they note no pronoun was used when Stewart discussed [name redacted], the implication of Stewart’s clear incredulity at [name redacted] “competing straight-faced as a female” is that Stewart believes and means to imply that [name redacted] is not a woman. I hope it is clear how closely this rhetoric is to more explicit misgendering through the use of inaccurate pronouns.

The editor admits in their response that misgendering transgender people is counter to the Herald’s reporting policy. I would hope this extends to misgendering a hypothetical transgender person in order to discredit trans women in general, as well as the clearer case of misgendering a specific person.

I understand that part of the role of an editor is to support their writers, but it seems to me that in this case it has resulted in a defensiveness that has led to the Herald failing to enforce the policy that they quoted.

Official information kept secret too long

Official information kept secret too long

Official information is being kept secret for longer than it should be. For the past few months, I have been gathering and analysing data from 12 government agencies, looking at how they handle requests made under the Official Information Act.

My findings reflect what many have observed more anecdotally: responses to requests for information are often sent at the very last minute, and seem to often be delayed unnecessarily. Though it can be difficult to demonstrate that a response was not sent “as soon as reasonably practicable” — a requirement under the law — in any particular case, looking at a larger data set reveals some of the strategies used to delay the release of official information.

You can read my article here: Official information kept secret too long

Chiropractors struggle to drop testimonials

Chiropractors struggle to drop testimonials

The latest newsletter from the regulator of chiropractors offers an insight into the industry’s culture problems.

In their June newsletter, the chair of the Chiropractic Board has admonished chiropractors for a discussion on how to circumvent consumer protection regulations:

At a recent chiropractic function, a presentation was given on advertising, chiropractors’ responsibilities and the Advertising Standards Authority (ASA). The information was well presented and informative however ensuing discussion revealed that the message is clearly not being heard by all. I urge you to please refer to my email of 30 August 2017 that clearly outlines your responsibilities, and reiterates very important points set out in the Board’s Advertising and Social Media Policy, and references to all other responsibilities. I was particularly disappointed in discussion among practitioners on how to best circumvent the prohibition on posting testimonials on Facebook – some very creative ideas were invented.

The Chiropractic Board published their current Advertising Policy in November 2015. It notes, correctly, that the use of health testimonials in advertising is prohibited in New Zealand by Section 58(1)(c)(iii) of the Medicines Act 1981:

A chiropractor shall not advertise any material which relates to the chiropractor’s qualifications, practices, treatment or the premises where they practice chiropractic if the material:

f) uses testimonials whether from patients or any other person (see section on Medicines Act);

This section [58 of the Medicines Act] provides further at Section 58(1)(c) that it is an offence to imply, claim, indicate or suggest that a medicine, treatment or device is a panacea or infallible for any condition or is recommended by an appropriately qualified person or had beneficially affected the health of a particular person or class of persons, whether real or fictitious.

This wording clearly prevents a health practitioner publishing testimonials.

Unfortunately, this law is widely ignored in New Zealand, particularly by promoters of dodgy health products. In my experience even when breaches are brought to the attention of the agency responsible for enforcing it – Medsafe, in this instance – nothing is likely to happen.

In 2015, my colleague at the Society for Science Based Healthcare Mark Honeychurch and I looked at how often New Zealand chiropractors were publishing health testimonials and various misleading health claims in online advertising. This was prior to the publication of the Chiropractic Board’s current advertising policy, but over 20 years after the law prohibiting the use of health testimonials in advertisements was passed. We found that just over a third of the 137 websites we looked at used health testimonials.

Thankfully, this does seem to have decreased following the introduction of the Advertising Policy, but the recent newsletter seems to imply that chiropractors are not happy about being unable to use testimonials to promote their services.

When looking at how often chiropractors use misleading claims and health testimonials in 2015, we hadn’t looked at advertising on social media. While writing this post, I have searched for “NZ chiropractic” on Facebook and clicked on the top three pages that showed up in the results – Bays Chiropractic NZ, Chiropractic Touch, and Revolution Chiropractic NZ – to have a quick look (I didn’t look through any comments or watch any videos) and see if any of them had been publishing testimonials there.

I didn’t see testimonials on the Bays Chiropractic NZ page, but I couldn’t help but notice that they shared an image in February featuring many misleading claims about chiropractic manipulation, including that it can reduce allergies, asthma, and ADHD. As the Chiropractic Board of Australia has clarified in their own Statement on Advertising in 2016, these claims are not supported by evidence:

Claims suggesting that manual therapy for spinal problems can assist with general wellness and/or benefit a variety of paediatric syndromes and organic conditions are not supported by satisfactory evidence. This includes claims relating to developmental and behavioural disorders, ADHD, autistic spectrum disorders, asthma, infantile colic, bedwetting, ear infections and digestive problems.

In August 2017, Chiropractic Touch posted a testimonial claiming that chiropractic manipulations had cured someone’s asthma. They used one of the “creative ideas” commonly used by chiropractors to try to circumvent the prohibition on publishing health testimonials: telling the testimonial in the context of it inspiring a chiropractor to pursue their career rather than framing it as a patient’s experience.

I didn’t see any testimonials on Revolution Chiropractic NZ’s page, but they do seem to publish a lot of posts about adrenal fatigue. Adrenal fatigue is a fake diagnosis that I’ve seen most often used by naturopaths to sell unnecessary supplements. Revolution Chiropractic NZ also shared some of the same misleading claims as Bays Chiropractic NZ, including particularly concerning misleading claims about being able to treat children and infants for conditions such as colic and ear infections.

Whatever improvements there may have been over the past few years, it seems the chiropractic industry in New Zealand is still struggling with its culture of ignoring or sidestepping patient protection regulations.

NZ Police pursuits keep killing people

NZ Police pursuits keep killing people

Despite a repeated cycle of calls for change, people keep dying in police pursuits in New Zealand. Just today, a teenager and a child died as the result of a police pursuit in Palmerston North.

News stories like these keep appearing. In February this year I asked NZ Police to release a number of statistics regarding police pursuits so I could examine what, if anything, has changed. I began to write about it in March but didn’t end up publishing it, having intended to put it on a new “features” subdomain I’ve been working on where I’ll be able to do some more complicated stuff than WordPress will allow.

One of the statistics I included was the number of people who have died as a result of police pursuits since the most recent review began. I’ve gotten very sick of having to update that number. So out of that frustration, I’ve published my article. You can read it here: NZ Police pursuits keep killing people

Personalised Supplements

Personalised Supplements

Can an online quiz give good recommendations for taking supplements? Stuff today published an article about two New Zealand companies that launched recently, Vitally and Wondermins, which each use online quizzes to sell “personalised vitamins”.

Unfortunately, Stuff chose to focus on the question “What’s the point?” rather than “What’s the evidence?”. I thought it would be an interesting experiment to run through each of these quizzes to discover what supplements they would each recommend to me if I told them I had no health problems.

Both quizzes also included a bunch of questions about my current relationship to vitamins. Questions such as whether or not I already take any, how knowledgeable I am about them, were accompanied by questions about my health such as whether or not I took a long time to recover from infections.

For each health question, I gave the answer that would indicate better health. Do I often get colds or the flu? No. Do I have allergies, or sore joints? No, no. There were also diet questions, to which I attempted to give the healthiest answers based on what I thought they would be expecting.

Each quiz also asked me for a few areas of interest, though they didn’t phrase this as a health question. For example, Vitally asked “Which of these categories should we explore?” and gave me options such as “Immunity”, “Heart”, and “Inflammation”. The categories were pretty similar for both quizzes, so for both I selected immunity, bones/joints, and heart.

Vitally recommended I take four supplements for my 0 health problems and healthy lifestyle, which would cost $57 per month. Their supplements had “Find out why” tooltips with very useful information such as “Alpha-Lipoic Acid is recommended for healthy skin & inflammation and” (yes that’s the whole tooltip).

Wondermins’ loading screen after the quiz told me it was “Referencing research…”, and each of the supplements they suggested had a “View Research” link. However, these links all went to a page about Vitamin D deficiency. This didn’t do much for my peace of mind, especially since they didn’t even recommend I take Vitamin D (though Vitally did).

Wondermins recommended I take three supplements, none of which were the same as those recommended by Vitally. Their pack would cost me $68 per month.

If two quizzes for the same thing can give such different results for essentially the same answers, I don’t think that says very much about their reliability. They were both very lacklustre in terms of making evidence available to me if I wanted to make an actual informed decision about what they were suggesting I purchase.

If you’ve got money to burn and you think your urine isn’t expensive enough, then these services might interest you. Otherwise, do the sensible thing and talk to your GP if you have any heath issues.

What we owe our pets

What we owe our pets

I recently complained about a vet promoting quackery in the Bay of Plenty Times. In response to my complaint, the editor agreed to publish a response I wrote, regarding what we owe our pets. Now that it’s been up for a little while, I’m also publishing it here on my blog.


The Bay of Plenty Times recently published an opinion piece by veterinarian Liza Schneider about avoiding and treating cat abscesses. Liza Schneider runs the Holistic Vets clinic in Tauranga, and is the president of a special interest group of New Zealand vets focused on “complementary veterinary medicine”.

At the end of her article, she said “complementary therapies like homeopathy, herbal medicine, ozonated gel, hyperbaric oxygen therapy and others can help aid healing tremendously.”

The claimed efficacy of homeopathy is in stark contrast with evidence-based practice. As the UK’s Royal Council of Veterinary Surgeons said in a statement last year, “Homeopathy exists without a recognised body of evidence for its use. Furthermore, it is not based on sound scientific principles.”

Like children, our pets rely on us to make healthcare choices for them. Just as pets cannot talk to us about their symptoms, they are unable to discuss treatment options, make an informed decision of their own, or consent to treatment. These important decisions are left to their carer, and their vet is the carer’s guide to making this decision.

When we welcome a pet into our homes, we take on a responsibility to care for them. When their health becomes an issue, they have no choice but to rely on us to make the best decision in their stead. We must be their advocate.

If we choose poorly, their health may suffer. In my view treatments like homeopathy, which are not supported by robust evidence, will at best cost you money and do nothing, but at worst they may delay effective treatment.

Though we are fully capable of making informed decisions about our own healthcare that might involve trying treatments that are not backed by good evidence, I strongly believe that we have a duty to our pets not to experiment on them in this way.

This responsibility also applies to veterinarians. When a vet says things that are not soundly based on scientific evidence, such as “homeopathy… can help healing tremendously”, I believe they are failing in that responsibility.

The New Zealand Veterinary Association has a policy on the use of “complementary and alternative treatments” that requires, among other things, that vets must say if a treatment they are advocating is not supported by evidence:

“Clients must be made aware of the likely effectiveness of a given treatment according to recognised peer-reviewed veterinary medical publications, notwithstanding the individual beliefs of the veterinarian. They must also be told the degree to which tests, treatments or remedies have been evaluated and the degree of certainty and predictability that exists about their efficacy and safety.”

I sincerely hope that your vet fulfils this responsibility in their practice.

New rules for pharmacists

New rules for pharmacists

The Pharmacy Council has (finally) published their new Code of Ethics 2018.

I’ve written several times on the ongoing saga of the Pharmacy Council’s Code of Ethics. In late 2014 we put together a complaint at the Society for Science Based Healthcare arguing that their Code of Ethics 2011 had been violated by an Auckland pharmacy, in which a salesperson had recommended and sold a homeopathic product to someone who didn’t realise they were buying quackery.

Following this complaint, the Pharmacy Council decided they would not enforce the rule in their Code of Ethics at the time that prohibited pharmacies from purchasing or supplying any health product that was not backed by “credible evidence of efficacy”.

This led to two protracted consultation processes, first about that specific part of the code and then about rewriting the code entirely. I worked on the Society for Science Based Healthcare’s submissions during each consultation period, and we met with the Pharmacy Council twice to discuss the topic.

The consultation processes also saw well-voiced support for strong patient protection rules coming from the New Zealand Medical Council and the Pharmaceutical Society (who represent professional pharmacists). Whereas the Pharmacy Guild (who represent pharmacy owners) was in favour of the more relaxed rules that had been suggested. For more detail on this, you can read my submissions roundup from 2015.

The Code of Ethics 2018 will come into force on the 12th of March 2018. It’s principle-driven, and accompanied by a number of guidelines that go into more detail on what’s expected of pharmacists in various areas. One of these guidelines is the Pharmacy Council Complementary and Alternative Medicines – Statement and Protocol for Pharmacists.

Unlike the Code of Ethics 2011, the new rules don’t prohibit pharmacists from selling quackery. While this is unfortunate, it’s seemed clear from the outset that the Pharmacy Council had no intention to keep this rule given they aren’t prepared to enforce it. Instead, there has been an increased focus on ensuring patients are given the opportunity to make an informed choice.

I’m feeling cautiously optimistic about the change. Though ideally pharmacists shouldn’t be lending their credibility to ineffective health products, if pharmacists must be allowed to sell quackery then I think the next best approach to regulation is to protect patients’ rights to make an informed decision.

On the face of it, I think the new rules seem good. But enforcement has been a concern in the past and parts of the previous code were widely disregarded. Come the 12th of March, I plan to have a look for pharmacists who aren’t complying with the new rules and lodge complaints to see how they are treated, and if the behaviour is corrected. Unfortunately, there are a few pharmacies in New Zealand that have a history of promoting quackery, including by selling ineffective health products online, which seems like a good place to start.

I’d recommend you read the rules for yourself if you’re interested, but here’s my summary of what I think are the most important new patient protection rules regarding informed consent:

[Principle 1H: A pharmacist] Before recommending, supplying or promoting a medicine, complementary and/or alternative medicine or other healthcare product or service, considers available evidence, and only supplies a product when satisfied that it is appropriate, and the person understands how to use it correctly and safely.

[Principle 4C: A pharmacist] Provides accurate, truthful, relevant, and independent information in an appropriate form that is not misleading to patients, the public and/or other healthcare professionals.

[Principle 4H: A pharmacist] Ensures that when providing any medicine, complementary and alternative medicine, or other healthcare product or service, that the health and wellbeing of the patient or consumer is the primary consideration, and that the benefit of use outweighs the risk.

[Principle 4I: A pharmacist] Does not engage in advertising, promotion or supply of goods or services that could include misleading or unsubstantiated claims, and/ or undermine public trust in the profession.

[Principle 6A: A pharmacist] Maintains contemporary knowledge of evidence-based practice.

Where it makes sense, all of these principles are effectively extended to non-pharmacist salespeople who work in pharmacies via Principle 5G:

[A pharmacist] Is responsible for actions of staff under their supervision.

Looking at the associated guideline on “complementary and alternative medicines”, the requirements in parts 14 and 15 seem like they will be particularly important for protecting patients from quackery in pharmacies:

14. When supplying products or information about treatments/products/services that have no current evidence of proven efficacy pharmacists are expected to:

a. ensure that patients are informed about the degree to which treatments or products have been evaluated, and

b. the degree of certainty and predictability that exists about their efficacy and safety

15. Pharmacists must advise patients when scientific support for treatment is lacking.

Part 18 of the guidelines also includes the following requirements:

e. provide sufficient information regarding the CM/NHP [Complementary Medicine/Natural Health Product] to allow patients to make informed choices

f. not misrepresent information or opinion. Patients must be made aware of the likely effectiveness of a given therapy according to recognised peer-reviewed medical publications, in spite of your personal beliefs

g. provide the patient with a timeframe for accessing conventional medicine if their condition is unresolved or there is no improvement

Time will tell if these rules really do enhance patient protection in the pharmacy industry, which has a long-standing problem with promoting quackery on the side.

From the 12th of March onwards, if you see behaviour that you think is non-compliant with the code feel free to let me know about it. I can be contacted via email at mark@honestuniverse.com.

OIA accessibility follow-up

OIA accessibility follow-up

What will be done about the Official Information Act’s accessibility problem?

Late last year, I published an open letter on the accessibility of the Official Information Act. I gave examples of inaccessible responses to requests under the OIA, and suggested a solution. I sent this letter to the Ombudsman, and later also forwarded it to Associate Minister of State Services (Open Government) Clare Curran and to Minister for Disability Issues Carmel Sepuloni.

I’ve now heard back from the latter two, and want to share their responses so others interested in this topic can read what’s being done to address it.

I’d also lodged an OIA request with the Ministry of Defence last year, as their Briefing to Incoming Minister document was released as a text-based PDF with watermarks and redaction. I’d asked them what software they used to produce this, and the associated costs, so I’d be able to give a specific recommendation to agencies who send me inaccessible responses in the future.

I’ve received a response to this request as well. As with the responses from Clare Curran and Carmel Sepuloni, you can find the text and PDF link to this response below.

Unfortunately, and somewhat ironically, all three responses were received in the form of image-based PDFs of documents that had been printed, signed, and then scanned. This is the primary accessibility issue I’d raised in my letter regarding OIA responses, as this format cannot be easily converted to text and is inaccessible to people who rely on screen readers. A couple of the responses also contained links that I’ve had to type out by hand instead, due to this inaccessible format. I’ve made the original PDFs available, and also converted them to text (by hand, so please assume any mistakes are mine), which you can find below:


Response from Clare Curran, Associate Minister of State Services (Open Government). Original PDF

Dear Mark Hanna

OIA Accessibility

Thank you for your email on 30 November 2017, regarding the accessibility of information released to requesters under the Official Information Act 1982 (OIA). I note your concerns about the format some agencies choose to provide information in, which can render that information unsearchable by the recipient.

As you are aware, section 16(2) of the Official Information Act provides that information can be made available in a way preferred by the requester, unless there is good reason identified by the agency not to do this. In the first instance it is for the requester to ask the agency to make information, and in particular data sets available in a searchable format. If the agency refuses then this can be the subject of a complaint to the Ombudsman.

The State Services Commissioner has been delegated the functions under section 46 of the OIA by the Ministry of Justice. This function includes providing advice and guidance to agencies to act in accordance with the OIA. SSC has established an official information work programme which includes developing guidance for agencies. I think that the issues you have raised are worthy of further consideration.

I have asked the State Services Commission to consider whether accessibility of information should be part of the official information work programme that the Commission is undertaking.

Yours sincerely

Hon Clare Curran
Associate Minister of State Services (Open Government)


Response from Carmel Sepuloni, Minister for Disability Issues. Original PDF

Dear Mr Hanna

Thank you for your email dated 30 November 2017, regarding accessibility issues with Official Information Act (OIA) practices and across government more generally. The Government is committed to being open and transparent and we expect the same of the public service.

I have been advised that the Official and Parliamentary Information team within the Ministry of Social Development will soon utilise more sophisticated redaction software. This software will enable the Ministry of Social Development to send and publish OIA responses and documents that are text searchable and text recognisable for those requesters who use reading software.

Providing OIA responses in accessible formats should be standard practice as part of an open and transparent government. To this end, the Ministry of Social Development is leading a work programme to increase the accessibility of information and communications across government agencies. This will involve providing clear and practical advice to support government agencies to meet accessibility requirements for all their communications with the public. Participating Chief Executives have signed up to an Accessibility Statement to commit to this. You can find more information about this here: www.odi.govt.nz/nz-disability-strategy/outcome-5-accessibility/

Thank you for writing. I hope this information is helpful.

Ngā mihi

Hon Carmel Sepuloni
Minister for Disability Issues


Response from Ministry of Defence. Original PDF

Dear Mr Hanna

RESPONSE TO YOUR OFFICIAL INFORMATION REQUEST

Thank you for your email of 7 December 2017 regarding the software used to create the redacted and watermarked 2017 Briefing to the Incoming Minister of Defence, published on the Beehive website.

The Ministry of Defence recognises that publishing a document online as a text-searchable PDF file makes is easier to access. We prepare material for release in this form wherever possible, and endeavour to provide alternative formats on request for non-searchable documents, such as older files.

In order to produce searchable, redacted and watermarked files, the source documents are generally prepared using Microsoft Office software and then exported as searchable PDF files. Adobe Acrobat Professional software is then used to make redactions and add watermarks.

The Ministry has an agreement with the New Zealand Defence Force on software licensing. The Defence Force pays for an all-inclusive software bundle and is charged a flat rate. They distribute the licenses for Adobe Acrobat Professional as needed by staff. Please refer to the Adobe Acrobat website for costs: https://acrobat.adobe.com/nz/en/acrobat/pricing.html. The cost to agencies will be affected by volume. Assuming multiple licenses are purchased, the Adobe website indicated pricing of A$22.99 per seat per month (about NZ$25 at present exchange rates) or A$275.86 per year (about NZ$300).

Under section 28(3) of the Official Information Act 1982 you have the right to request the Ombudsman to investigate and review this response.

Yours sincerely

Helene Quilter
Secretary of Defence


It’s not clear yet whether or not accessibility of information will be part of the SSC’s official information work programme that Clare Curran mentioned. Though I’m hopeful that it will be, I’m not sure how likely this is to effect change.

I strongly agree with Carmel Sepuloni’s statement that “Providing OIA responses in accessible format should be standard practice as part of an open and transparent government”, and hope that she will do her best to ensure our government meets that standard. I’m cautiously optimistic, though the fact that this response itself was delivered in an inaccessible format isn’t encouraging.

For the foreseeable future, it sounds like the best course of action will be to ensure that all OIA requests specify that the response should be delivered in an accessible, searchable format. I have included this recommendation in the OIA Guide that I published last year.

If I receive inaccessible PDF responses in the future, I now intend to direct the agency to the Ministry of Defence’s response regarding the software they use.

Can you trust Band-Aids?

Can you trust Band-Aids?

Band-Aid is a household name, but can you trust the way they’re promoted?

For years Johnson & Johnson, the manufacturers of Band-Aid adhesive bandages, have been making a simple claim about them. If you put a Band-Aid on a cut, it will heal faster than it would have if left uncovered.

Specifically, they say it will heal twice as fast:

Band-Aid packaging, front and back.

Johnson & Johnson is a large, well-known medical company. As well as Band-Aids, they make many other health and health adjacent products such as shampoo for babies, cold medicines, and mouthwash. For better or for worse, this means many of us are willing to accept their claims at face value.

In an ideal world, that would be fine. They don’t have a reputation for being misleading, like the reputation Reckitt Benckiser has earned for its misleading claims about Nurofen. They’re also not selling products that are clearly dodgy, like homeopathy or a quantum magnetic health analyser.

If all of us took the time to look into every health claim we encountered, we’d have no time left to eat or sleep. So, in cases like this, we often feel satisfied that if such a big company were making a dodgy claim someone would have caught it and called them out.

Well, that’s exactly what happened in this case. In early 2017, Dr Ken Harvey contacted Johnson & Johnson to ask them to provide the evidence for the “heals cuts twice as fast” claim they were making. In response, Johnson & Johnson did not send him the evidence. Instead, they opted to remove the claims.

“I gently asked them where was the evidence, it’s a fairly strong claim,” Dr Harvey told Fairfax. “And they hummed and hawed and eventually decided, I got a lovely letter from them, saying there was evidence – but they are removing the claims.”

Band-Aid promotions to be ripped off the shelf after complaints about healing claims | The Age

I was alerted to this by a member of the Australian patient advocacy group Friends of Science in Medicine*, which has similar aims to the New Zealand Society for Science Based Healthcare that I chair.

At the Society for Science Based Healthcare, we decided we wanted to make sure that the same change would be reflected over here. So, in April 2017, I wrote to Johnson & Johnson:

Kia ora,

I saw the other day that Johnson & Johnson will be removing promotional material in Australia saying Band-Aids are “clinically proven to heal wounds faster”. http://www.theage.com.au/national/health/bandaid-promotions-to-be-ripped-off-the-shelf-after-complaints-about-healing-claims-20170413-gvk985.html

Similar promotional material for Band-Aids exists in New Zealand. Does Johnson & Johnson also plan to remove these? For example, these online ads for various Band-Aid products all say they can make cuts heal twice as fast as if they were uncovered, and it looks like the same claim is made on the packaging too:

If Johnson & Johnson does not plan to remove these ads, will they be willing to publish the evidence alluded to in the statement provided to Australian media?

Sincerely,

Mark Hanna
Chair, Society for Science Based Healthcare

A couple of weeks later – after their Director of Regulatory Affairs for Australia, New Zealand, and Japan had returned from leave – I received this response:

Dear Mr Hanna,

Re: Band-Aid® Brand Adhesive Bandages

I refer to your correspondence in relation to our Band-Aid® Brand Adhesive Bandages.

I can confirm that the product sold in New Zealand is the same as the product sold in Australia. Any changes that we make to our promotional and packaging material for Australia will, therefore, be reflected in the New Zealand market.

Thank you for your enquiry.

Yours sincerely,

Andrew Harris B.Sc(Hons) PhD
Director, Regulatory Affairs

Great, the claim on the packaging would be removed! A win for consumers, all done and dusted I guess. Except… all those examples I sent to them were text on a supplier’s website. Would their suppliers all be told of the change they should make to the way Band-Aids could be promoted? I asked:

Thanks Andrew, it’s good to have confirmation on this. I assume, then, that Johnson & Johnson will be contacting all of its New Zealand retailers to ensure they update their marketing materials for these products?

Sincerely,

Mark Hanna
Chair, Society for Science Based Healthcare

This time, I never heard back. Obviously I can’t say for sure, but in my opinion it’s likely that Johnson & Johnson never responded to that question because they had nothing else to tell me that wouldn’t make them look bad.

I don’t think they ever had any plans to contact their suppliers about removing this claim from promotional material that Johnson & Johnson didn’t have direct control over. I also don’t think they’ve contacted their suppliers about this in the months since they agreed to change their packaging.

In fact, if you check those example links I sent to them in April, you might find the “Heals cuts twice as fast” claim is still there. At the time of writing, that claim was still present at all three links.

But it’s not just their suppliers that are the problem. In early June, a couple of months after Johnson & Johnson agreed to stop claiming that Band-Aids can heal cuts twice as fast, Society for Science Based Healthcare member Daniel Ryan noticed that the claim was still made on over a dozen pages on the Band-Aid New Zealand website. He laid a complaint about this with the Advertising Standards Authority.

Unsurprisingly, his complaint was settled in July when Johnson & Johnson voluntarily removed the claims:

The Chair [of the Advertising Standards Complaints Board] acknoweldged the Advertiser’s response to the complaint confirming it had made changes to the website voluntarily and without admission, removing packaging images containing statements which were of concern.

ASA Complaint 17/185

Though Johnson & Johnson are clearly happy to be seen doing the right thing – removing claims that they are unwilling or unable to substantiate – it seems to me that they have also been very willing to ignore many places where these claims continue to be made, and to delay their removal through inaction.

It reminds me of Reckitt Benckiser’s behaviour in the case of the misleading claims they made about Nurofen specific pain products. Even though they were eventually forced to remove the claims (accompanied by a paltry fine, in their case), they still made a healthy profit in the meantime.

Perhaps more importantly, during the intervening time in which the claims remained, they were only further cemented as part of public knoweldge. So even though they’re no longer used, they’ll probably still come to mind when people are deciding whether or not to buy them:

“Band-Aids heal cuts twice as fast? Yeah, I’m sure I heard that somewhere.”

This is often what supposedly reputable health companies rely on. Even if they’re forced to remove misleading claims, people will still remember the old claims.

And if no one complains, nothing happens.

* I’m also a member of Friends of Science in Medicine (though not particularly active, since I focus my efforts on New Zealand issues), and Dr Ken Harvey is on their executive.

OIA Accessibility

OIA Accessibility

The Official Information Act has an accessibility problem.

I wrote recently about asking the government for information, having just published a guide to using the OIA. The OIA is a powerful tool, but it can be limited by how government agencies choose to follow it. One particular limitation that comes up again and again is accessibility.

There is a hashtag on Twitter that’s often used by journalists and activists, myself included, to talk about issues with the Official Information Act: #fixtheOIA

Today Nikki Macdonald, senior feature writer at the Dominion Post, started a discussion about a widespread and rather infuriating practice for responding to requests for official information:

In response to a recent request she made under the OIA, she received a PDF of a scanned document that included a large amount of tabular data.

The issue she mentions is one I have seen many times. It is common practice to take a document that will be released under the OIA, print it, then scan it back into a PDF, then send that PDF instead of the original document.

Printing and scanning documents allows for them to be signed, which is typically done with OIA response letters (though not with documents released alongside them). PDFs cannot be altered by the recipients, so the information is kept intact as it was released.

Also, perhaps most importantly, because these PDFs come from scanned documents they don’t contain any text. Instead, they just contain images of text. This means there is absolutely no way the recipient will be able to view information that has been withheld from released documents.

But releasing documents as images of text has a huge drawback too: accessibility

Most obviously, this will affect requestors who are blind or have impaired vision. If you rely on a screen reader to read these documents, it won’t be able to read a PDF that’s full of images. It’s a pain in the ass for those of us who are fully sighted as well.

There is software that can be used to convert images of text back into text, but it doesn’t always work perfectly, and often these image-based PDFs will include tables of data that are only really useful once converted into a spreadsheet. And, frankly, knowledge of how to use specialised software shouldn’t be a requirement for using the OIA to get usable information.

This isn’t the only accessibility issue with the OIA. Government agencies have also been known to do things like refuse to release documents online for unclear “security reasons“, instead telling the requestor that they must pay to have it posted to them.

Recently, Sam Warburton has been documenting a particularly trying OIA response on Twitter. First, he was sent documents that were locked by a password, which prevented him from copying text out of them:

He then made a second OIA request asking for all correspondence regarding the first request, so he could get to the bottom of how this bizarre twist had come about. The response was, well, not very accessible. He was sent 249 pages of printed documents, with the excuse being that it was “too big” to send digitally:

I think we should be able to expect better. Far better, in fact. And I’ve written the following open letter to the Ombudsman in the hope that this aspect of using the OIA can be improved:


Tēnā koe,

There has been a discussion on the “#fixtheOIA” hashtag on Twitter started by Nikki Macdonald today about the common practice of agencies sending responses to requests for official information in PDF format, where the contents of the PDF must be either transcribed by hand or converted using specialised software before they are useful.

I’ve observed this practice across several agencies, including those I have most commonly made requests to: New Zealand Police, the Department of Corrections, and ACC. It seems as though the response is written up, then it is printed out and the physical copy is signed before being scanned, and finally the scanned copy is sent to the requestor as a PDF. This means that, effectively, the response is delivered in the format of an image of text.

This has obvious accessibility issues for requestors who are blind or have impaired vision, but is also detrimental to sighted requestors.

For example, I recently received such a response from the Department of Corrections which included some long URLs. It is not possible to copy text from these responses without specialised software that many requestors will be unlikely to know much about (OCR – Optical Character Recognition – software can be used convert images of text into actual text). In this case, I had to type the URLs out by hand. Though there were only three of them in this instance, a lengthier response could easily have made this a significant barrier to accessing the released information.

A very long and difficult to type URL.

In the case raised by Nikki Macdonald, I understand she received a PDF response that, unexpectedly, also included large amounts of data. However, because the release was effectively an image of this data rather than a more usable format such as a spreadsheet, it will require a conversion process (either by hand or via OCR software) before it can be used.

I received a similar response in 2015, when I requested documents from the Ministry of Health but did not specify a preferred format. One of the documents I had requested was a large spreadsheet, but it was released to me as a PDF. Though this particular PDF was at least text-based, I still had to use specialised software to convert it to a usable format. I have made the PDF I was sent available online: compliance-of-comp-meds-manufacturers-2-oct-2007.pdf

While this issue can be pre-empted by requesting that the information should be released in a specific accessible format, such as an XSLX or CSV spreadsheet for data, this is not always realistic when it’s unclear whether or not the response is likely to include this type of information.

Despite section 16 of the OIA laying out certain responsibilities here, this approach is also not always respected by the agency. I have received multiple datasets as image-based PDFs despite requested explicitly as XSLX or CSV spreadsheets.

Here is an example of one response where I had to transcribe data by hand. The full response contains more data, as it continues onto the next page:

A table of data.

I have also assisted other requestors in transcribing information received this way, during which I was reminded that it can be quite a painful and time-consuming process for a requestor who is neither a fast typist nor able to use specialised OCR software.

In cases where OCR software is used to convert an image-based PDF response into a text-based one, which allows responses to be searched for certain keywords, this is often hampered by “Released under the Official Information Act” watermarks that are commonly overlaid on each page of released documents. These watermarks interfere with the software’s character recognition, so that portions of the text must instead be transcribed by hand. Poor quality scans, such as misaligned pages, can also cause issues with using OCR software to convert released information into an accessible format.

OCR software can also incorrectly transcribe parts of text, so it is always necessary to compare its output with the original PDF. This can be a time-consuming process, and is inaccessible to requestors who are blind or have impaired vision.

My impression, from talking with other users of the Official Information Act, is that this is a common and frustrating experience, widely regarded by requestors as being unnecessary and obstructive.

I accept that there may be cases where it would be difficult for an agency to release a text-based document with appropriate redactions, and where the reason for each piece of information withheld is clear and the withheld information cannot be accessed. However, there are clearly many cases where information could be released in a more accessible format, and where this would happen if the requestor had known to specify such a format in their request. I would hope that it might be expected that, when information can be released in any of several different formats with similar effort, the most accessible format should be used by default.

For example, after having seen me express frustration on social media about having to transcribe length URLs by hand from an OIA response, the Department of Corrections has agreed that they will now include links in the body of the email sent as a response. Although this only affects a small part of the response, this change would make the URLs significantly more accessible by allowing them to be used directly, without having to transcribe them from the PDF attachment.

I have looked through the Official Information Act and the official information legislation guides on your website for guidance on this accessibility issue.

The closest thing I have found is the relatively recent case note regarding a request from a prisoner who was unable to access information publicly available via the internet, after their request was refused under section 18(d).

Unfortunately, I have not found anything specific to this issue of accessibility. I’d greatly appreciate any advice you might be able to give on making requests in a way that should make a more accessible response more likely.

I would also like to suggest that a guideline on this issue might significantly improve both the experience of making requests for official information and the accessibility of released information.

I think it would be reasonable to expect agencies to release information with an accessibility-first mindset. This would be consistent with standards such as the New Zealand Government Web Toolkit, which recommends the following:

“Choose formats that are both easy to use and most likely to be accessible in the future. Choose openly documented formats over closed formats, or ensure that material released in closed formats is also accompanied by an equivalent in open formats.”

Particularly as many requests are made publicly available, either by the agency, through a service such as FYI.org.nz, or by direct sharing from person to person, it is important to consider issues such as accessibility for the blind and visually impaired for every request.

It is my opinion that accessibility should be considered an important part of information being made “available”, as per the Official Information Act’s Principle of Availability.

Ngā mihi,
Mark Hanna