Investigation Report 3320
File no. / ACMA2015/106Broadcaster / Australian Broadcasting Corporation
Station / ABC1
Type of service / National broadcasting service (television)
Name of program / 7.30
Date of broadcast / 16 September 2014
Relevant legislation/code / Standards 2.1 and 2.2 of the ABC Code of Practice 2011 (revised in 2014)
Date finalised / 10 June 2015
Decision / No breach of standard 2.1 [accuracy]
No breach of standard 2.2 [presentation of factual content]
The complaint
In February 2015 the Australian Communications and Media Authority (the ACMA) commenced an investigation into a complaint about a segment on 7.30,broadcast by the Australian Broadcasting Corporation (ABC)on ABC1 on 16 September 2014.
The complainantalleged that the broadcast was inaccurate as, among other things, it omitted critical facts concerning stem cell viability and conveyed an incorrect impression that a stem cell therapist, Dr B,was administering dead cells.
The complainant also referred to a breach of the Media Entertainment & Arts Alliance – Journalists’ Code of Ethics. As this is outside the ACMA’s jurisdiction, itis not addressed in this investigation. Complaints concerning matters other than cell viability were not pursued in the complaint to the ACMA and have not been investigated.
The segment has been assessed in accordancewith standards 2.1 [accuracy] and 2.2 [presentation of factual content] of the ABC Code of Practice 2011 (revised in 2014)(the Code).
The program
7.30 is a current affairs program described by the ABC as:
[…] provid[ing] the best analysis of local, national and international events from an Australian perspective, weeknights on ABC.[1]
On 16 September 2014, the program included a segment titled: ‘Questions raised about a clinic offering stem cell treatments using fat from liposuction’.
The segmentqueriedthe efficacy of stem cell treatments being offered by cosmetic surgeons. It focused on the use of instruments and methods by US Company IntelliCellwhich hadreportedly been found to produce dead cells.
The segment included an interview with Dr B, who provides stem cell therapy in Australia
The segment also included comments from:
a professor in stem cell biology from the University of Melbourne (P)
the CEO of IntelliCell (V)
a former IntelliCell employee (S)
a stem cell biologist from the University of Melbourne (J).
A transcript of the segment is at AttachmentA.
Assessment
This investigation is based on submissions from the complainant and the ABCand a copy of the broadcast provided to the ACMA by the ABC. Other sources used have been identified where relevant.
In assessing content against the Code, the ACMA considers the meaning conveyed by the relevant material. This is assessed according to the understanding of an ‘ordinary reasonable’ viewer.
Australian courts have considered an ‘ordinary reasonable’ viewer to be:
A person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower, but can and does read between the lines in the light of that person’s general knowledge and experience of worldly affairs.[2]
The ACMA considers the natural, ordinary meaning of the language, context, tenor, tone, visual images and any inferences that may be drawn. In the case of factual material which is presented, the ACMA will also consider relevant omissions.
Once the ACMA has applied this test to ascertain the meaning of the material that was broadcast, it then assesses compliance with the Code.
Issue: Accuracy
Relevant Code provisions
Standards
2.1 Make reasonable efforts to ensure that material facts are accurate and presentedin context.
2.2 Do not present factual content in a way that will materially mislead the audience.
In some cases, this may require appropriate labels or other explanatory information.
Submissions
The complainant’s and the ABC’s submissions are set out at AttachmentsB and C respectively.
Finding
The ABC did not breachstandards 2.1 and2.2 of the Code.
Reasons
In applying standard 2.1 of the Code, the ACMA adopts the following approach:
Was the particular material (the subject of the complaint) factual in character?
Did it convey a material fact or facts in the context of the relevant broadcast?
If so, were those facts accurate?
If a material fact was not accurate (or its accuracy cannot be determined), did the ABC make reasonable efforts to ensure that the material fact was accurate and presented in context?
In applying standard 2.2 of the Code, the ACMA usually adopts the following approach:
Was the particular material (the subject of the complaint) factual in character?
Was that factual content presented in a way that would materially (that is, in a significant respect) mislead the audience?
The considerations the ACMA uses in assessing whether or not broadcast material is factual are set out at Attachment D.
Was the particular material (the subject of the complaint) factual in character?
The segment opened with the presenter saying:
Since its invention, stem cell therapy has often been hailed as a miracle cure. Butthe proliferation of companies offering stem cell treatments has prompted a familiar warning from experts: buyer beware.
Last month some of the world’s top stem cell pioneers warned that dozens of operators in Australia are charging thousands of dollars for treatments that haven't been proven through clinical trials.
It continued with an interview with Dr B about his methods and technology and scientists who queried the efficacy and safety of stem cell therapy. It discussed the IntelliCelltechnology used in Australia by operators including Dr B, and included an interview with a US whistle-blower who said the technology kills the stem cells injected into patients.
The segment also discussed the use of a flow cytometer to test the viability of the cells, which had been shown to give false live-cell readings when used by IntelliCell.The reporter said that Dr B had modified the IntelliCell technology and methods, but the whistle-blower ‘still says’ the new method was untested scientifically. An Australian stem cell biologist stated that the machine used by Dr B is incapable of distinguishing stem cells from other materials.
Dr B was asked how he determined that what was being put back into patients ‘was definitely a stem cell’ rather than fat. He responded that he had had them tested in a larger research laboratory and confirmed this had been done once and not on a case by case basis.
The segment closed with a professor of stem cell biology at the University of Melbourne, who had previously described stem cell therapy as ‘new’ and ‘experimental’, saying ‘there are a lot of things that could go wrong, including the wrong cell being isolated and being put back into the wrong place’. He concluded that there was no scientific rigour or regulatory oversightof stem cell procedures.
The complaint is that the segment conveyed the impression that Dr B was administering dead cells to his patients and itomitted footage of, and information about, the clinic’s cell culturing and differentiation process.
In its response to the complainant, the ABC submitted that the program was about concerns that had been raised over the efficacy of stem cell therapy which had not been tested in clinical trials and is unregulated, that it had accurately reported that IntelliCell had been accused of administering dead or inert cells, it did not assert that Dr B’s clinic was administering dead cells and it was made clear that Dr B had modified the technology and was part of a law suit against IntelliCell.
The ACMA considers that statements about Dr B’s methodswould have been understood by the ordinary reasonable viewer as statements of fact. They were specific, unequivocal and capable of independent verification.
Did it convey a material fact or facts in the context of the relevant broadcast?
The ACMA accepts that the context of the segment was concerns over the efficacy, lack of scientific testing and regulation of stem cell therapy. However,Dr B was identified as an operator providing stem cell therapyin Australia based on IntelliCell instruments and methodswith ‘no qualifications in stem cell biology’ and over whom ‘serious questions’ had been uncovered.The factual assertions concerninghis methods were therefore material facts in the context of the segment.
Were those facts accurate?If a material fact was not accurate (or its accuracy cannot be determined), did the ABC make reasonable efforts to ensure that the material fact was accurate and presented in context?
The following relevant statements were made in regard to stem cell viability and Dr B’s methodology:
REPORTER: Early last year, [S] made a worrying discovery: the stem cells being injected into patients in America by IntelliCell were actually dead.
In internal company emails he tried to warn management that scientists at four independent universities had found that IntelliCell's method killed the stem cells. […]
REPORTER: Among the litigants is [Dr B], who paid $700,000 for technology that now appeared to be useless. [Dr B] is still using all the same instruments as IntelliCell but, he says, he's modified the methods.
REPORTER: So he's lowered the temperature and leaves the probe in for less time. [S]still says this new method is completely untested scientifically.
[…]
REPORTER: [Dr B] uses what's known as a flow cytometer to verify the presence of live stem cells.
[…]
REPORTER: The exact same machine was used at IntelliCell, where it read dead cells as being live.
REPORTER: [J] is a PhD in stem cell biology and has worked full-time in the field for 12 years. [J]says the type of machine used by [Dr B] is incapable of accurately distinguishing stem cells from other material.
J: It could be two million fat cells. It could be two million pieces of debris. It could be anything.
REPORTER: And that flow cytometer wouldn't be able to tell you?
J: No. Absolutely not.
REPORTER: So how do you know that what you're putting back into the patient is definitely a stem cell and how many of those stem cells there are and that they're not just essentially lumps of fat?
DR B: Yeah. How we know that is that we took our cells to somebody else's machine in a larger research laboratory and we tested all of our cells against 250 different cell markers. That's a task that is far beyond what our little machines here can do.
REPORTER: So you were able to do that once, though, but you're not doing that on a case by case basis?
DR B: Correct.
The ABC submitted that it used reasonable efforts to ensure accuracy by relying on the first-hand account of S, as well as two other whistle-blowers who provided documents to support their claims, including an affidavit to the US Food and Drug Administration,andthe expert views of J, a stem cell biologist. The ACMA notes thatthe interview with another scientific expert, P, was also used in the segment.
The ACMA is satisfied that the ABC made reasonable efforts to ensure that material facts concerning expert views on the efficacy of stem cell therapy involving the isolation and re-injection of stem cells via liposuction, problems identified by whistle-blowers with the IntelliCell technology,the inability of a flow cytometer to establish whether material is stem cells or fat and the views of Dr B were accurate and presentedin context.
Was that factual content presented in a way that would materially (that is, in a significant respect) mislead the audience?
The ordinary reasonable viewerwould have understood thatwhile Dr Buses the same IntelliCell equipment, he uses a modified method and,in his professional view, this is able toproduce live cells. Further, Dr B asserted that an independent laboratory was capable of distinguishing the stem cells from other material. It is noted that the segment did not include any statements that the stem cells used by Dr B were dead cells.
The efficacy of the adapted version of the stem cell extraction used by Dr B was bought into question as part of the line of enquiry concerning a relatively new and experimental treatment.
Under the Code, programs may take a specific line of enquiry, and it was clear that theeditorial line of this program was whether there were adequate regulations within the industry and whether methods were subject to adequate scientific verification.
The complaint’s concern is that the segment omitted footage which would have established that Dr B’s clinic had cultured cells establishing that they were live, whereas the issue being explored in the segment was whether the technology was capable of identifying stem cells for extraction.
Because of the references to the IntelliCell methods killing stem cells and the references to Dr B’s use of the same technology,the ordinary reasonable viewer could have initially inferred that Dr B was also injecting dead or inert cells. However, this was immediately clarified by the statements that Dr B had modified the IntelliCell methods, indicating his belief that the cells injected into his patients were viable.
These assertions were surrounded by statements that Dr B used the same flow cytometer that had given a false result for IntelliCell, and statements of scientists that Dr B’s method had not been tested and the machine used by him is incapable of ‘accurately distinguishing stem cells from other material.’
Given the focus on Dr B, it was appropriate to obtain his response on this matter. The issue was put directly to Dr B and he responded. The ACMA accepts the ABC’s submission that Dr B was given the opportunity to discuss how he knew that patients were being injected with real stem cells and his response was broadcast. In it, Dr B did not make the point that he had cultured cells.
The ACMA notes that there is no requirement in the Code for all facts that are potentially relevant to a program to be presented. The question for the ACMA is whether the omission of facts would render the broadcast inaccurate, take it out of context, or result in factual content being presented in such a way that it would materially mislead the audience.
The ABC has submitted that footage taken of culture dishes in which cells were grown was not included in the segment because of time constraints. Given the references to dead cells and the focus on Dr B, the footage may have supported the position that his patients were receiving viable cells. However, the ACMA accepts the ABC’s submission that the exclusion of this information did not materially detract from the report’s critical focus on the efficacy of stem cell therapy and the broad concerns of experts about the unregulated nature of the industry.
In this case, the ACMA does not consider that the omission of footage and all details concerning Dr B’s adapted methods rendered the broadcast inaccurate or materially misled the viewer.It would have been clear to the viewer on the basis of the following comments that Dr B’s adapted methods were open to debate:
REPORTER: So he's lowered the temperature and leaves the probe in for less time. [S]still says this new method is completely untested scientifically.
S: I'm not aware of anything published whereby those techniques have been held to the scrutiny of peers - peers being other research groups, scientists and physicians.
[…]
P: So what's going on in these clinics may be at the forefront of a major revolution in medicine, or it might be a sham and a danger to patients. Again: we simply don't know.
The ACMA is satisfied that the segment accurately reflected that the methodology used by Dr B was relatively new and experimental and had yet to bebroadly validated by peers (other research groups, scientists and physicians). It was made clear that Dr B had made attempts to improve viability by modifying procedures and sought independent verification of the results on one occasion, which he claims produced live stem cells. His account on these matters was conveyed accurately.
While the inclusion of the footage of cultured and differentiated stem cells and other details may have given a further example of Dr B’s adapted use of the IntelliCell machine, its omission did not render the segment inaccurate, nor did it materially mislead the audience.
Accordingly, the ABC did not breach standards 2.1 and 2.2 of the Code.
Attachment A
Transcript of ‘Questions raised about a clinic offering stem cell treatments using fat from liposuction’7.30, broadcast on ABC1 on 16 September 2014.[3]
PRESENTER: Since its invention, stem cell therapy has often been hailed as a miracle cure. But the proliferation of companies offering stem cell treatments has prompted a familiar warning from experts: buyer beware.
Last month some of the world’s top stem cell pioneers warned that dozens of operators in Australia are charging thousands of dollars for treatments that haven't been proven through clinical trials.
A 7.30 investigation has uncovered serious questions about one operator: a company called [the clinic]. It uses a method based on liposuction of fat cells and it bought the technology from an American company now at the centre of a multi-million dollar fraud case.