BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Close Up – item about large-scale animal neglect on a farm owned by one of New Zealand’s largest dairy producers – included footage of the complainant – allegedly inaccurate, unbalanced and unfair

Findings
Standard 5 (accuracy) – viewers would not have been misled into believing the complainant was involved with animal cruelty on the farm – item accurate on material points of fact – majority – not upheld

Standard 6 (fairness) – parts of the item borderline, but fair overall – complainant given adequate opportunity to respond – complainant’s behaviour contributed to the way in which she was portrayed – majority – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An item on Close Up called “Wasting Away”, broadcast on TV One at 7pm on Monday 28 September 2009, reported on large scale animal neglect on a farm owned by one of New Zealand’s largest dairy producers.

[2]   At the beginning of the programme, the presenter outlined the various stories being reported on that evening. The first part was on the animal neglect item and included footage of Mrs Burnby on the farm and walking up to the camera saying, “You can film me, I don’t care”. This footage was followed by footage of dying calves.

[3]   The presenter introduced the item by saying:

I want to be very upfront with you about this story we’re bringing you tonight. You are not going to like what you see, because it’s animal neglect on a large scale and what’s more, it’s on a property owned by our biggest dairy producer. We’ve got video of calves literally starving to death, animals taken from their mothers but not fed. When MAF eventually turned up they had to put down more than 100 calves. I say eventually, because one of the disturbing aspects about this case is that it took Ministry animal welfare officers two-and-a-half days to get there, and even then they’d tipped off the farm they were coming.

[4]   As the presenter introduced the item, a still shot of the complainant “giving the finger” was included in a series of images shown alongside the item’s title.

[5]   The item began by showing footage of struggling and dying calves and included an interview with an anonymous informant. The reporter was shown talking to staff on the farm about the neglected calves when the complainant arrived in her car. The following exchange took place:

Reporter:        We have reason to believe that calves were starving to death?

Mrs Burnby:    No.

Reporter:        Doesn’t happen here?

Mrs Burnby:    Not now.

Reporter:        Not now?

Mrs Burnby:    No.

Reporter:        When did it happen?

Mrs Burnby:   Ah, no comment. I’m sorry, I don’t run this farm.

[6]   Further footage was shown of Mrs Burnby stating, “I’m just passing, I’m going to ring the cops”. The reporter responded by saying, “Okay, well ring the cops. Well you’ve asked us to leave, we’re leaving now.” To which Mrs Burnby replied, “Yeah, go”.

[7]   Footage was then shown of the reporter asking Mrs Burnby to move her car so that he and the film crew could leave the farm. The reporter said that he could not drive “over the top” of Mrs Burnby’s car, to which Mrs Burnby replied, “Well I can go over the top of you mate”.

[8]   The item included an interview with the farm’s owner, Alan Crafar, who explained how the calves got into such a terrible condition. Mr Crafar said that the farm’s manager had recently broken both of his legs in an accident and that “young people” had been put in charge of the “calf room”. He went on to say that, while having young people in charge of the calves was “a mistake”, it was up to the workers what they did on a daily basis and he could not be “holding their hand” all the time.

[9]   The item included interviews with Greg Reid, an investigations manager from the Ministry of Agriculture and Fisheries (MAF), and Lachlan McKenzie, the Head of Dairy at Federated Farmers.

Complaint

[10]   Through her lawyer, Mrs Burnby made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item was “grossly inaccurate, lacked fairness and balance, and deliberately misled and misinformed viewers to create sensationalist coverage”.

[11]   Mrs Burnby explained that she and her husband were sharemilkers on an adjoining, but completely separate, property to the farm featured in the Close Up item. She stated that she was at the farm on the day the reporter was there to drop off a special chair to the injured farm manager that had been mistakenly delivered to their property. The complainant said that, after getting no response at the farmhouse, she had gone to the cowshed to talk with staff when she encountered the film crew.

[12]   Mrs Burnby said that she had asked the reporter and the crew what “permission they had to be on private property”, but they had ignored her and carried on filming. The complainant stated that she had asked the reporter twice to leave the property, and it was only then that the reporter asked her about “animal cruelty”. She said she had been “bewildered by such an approach” and after answering “no” to the reporter’s initial questions, she finally stated that she would comment no further.

[13]   Mrs Burnby argued that she had made it clear to the reporter that she did not work on, or have anything to do with, the farm. She considered that the item contained “significant film footage” of her and that this footage had “conveyed the clear impression” that she was in some way connected to the farm in question and thereby to the alleged mistreatment of animals on it.

[14]   The complainant argued that the reporter had made no attempt to ascertain who she was or why she was on the farm and that the reporter had not given her any opportunity to explain herself in this regard. She also said that she had been questioned in a discourteous and aggressive manner.

[15]   As a result of the item, Mrs Burnby said she had been “recognised as that woman who mistreated those calves”, and had been subjected to public abuse which had caused her emotional harm.

Standards

[16]   TVNZ assessed the complaint under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice. These provide:

Standard 4 Controversial Issues – Viewpoints

When discussing controversial issues of public importance in news, current affairs or factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Standard 6 Fairness

Broadcasters should deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

[17]   With respect to Standard 4, TVNZ considered that the issue of large scale animal neglect by one of New Zealand’s largest dairy producers was a controversial issue of public importance to which the standard applied. However, it argued that the standard did not apply to the footage of Mrs Burnby, as it was clear from the footage shown that she did not have anything to do with the farm in question. It pointed out that Mrs Burnby was shown saying, “Ah, no comment. I’m sorry, I don’t run this farm.”

[18]   In terms of the controversial issue discussed in the item, the broadcaster contended that it had sought and presented the appropriate viewpoints including those of Mr Crafar, MAF and Federated Farmers. It declined to uphold the complaint that Standard 4 had been breached.

[19]   Turning to accuracy, TVNZ contended that viewers would not have been misled by the footage and again noted that Mrs Burnby was shown saying that she did not run the farm.

[20]   The broadcaster pointed out that, immediately following the footage of the complainant, the reporter stated, “We finally caught up with the big boss, Allan Crafar.” It argued that this further disassociated Mrs Burnby from the farm.

[21]   TVNZ also noted that Mr Crafar was shown explaining how the animal neglect situation arose and argued that his description of the staff involved in the neglect had not implicated the complainant or suggested that she was involved. It considered that it would have been clear to viewers that Mrs Burnby was not part of the farm’s management or responsible for the alleged animal neglect. It declined to uphold the accuracy complaint.

[22]   Looking at fairness, the broadcaster stated that, when Mrs Burnby arrived at the cattle yards, the film crew and reporter had been talking with farm employees who had not asked them to leave. It said that the complainant approached the crew aggressively, did not introduce herself, made no mention of the purpose of her visit, and did not ask why the film crew was there.

[23]   TVNZ said that, after a short time, Mrs Burnby told the crew to leave the farm saying that they would be trespassing if they did not. It contended that the film crew were led to believe she had the authority to order them off the property and that her final communication with them was to give its film crew “the finger”.

[24]   TVNZ argued that it was reasonable to include the “brief” 30 seconds of footage of Mrs Burnby in the eleven-and-a-half minute item. Noting the footage of the complainant saying, “You can film me, I don’t care”, it considered that Mrs Burnby had given her consent to be filmed.

[25]   The broadcaster contended that the complainant had given the TVNZ film crew the impression that she was entitled to be on the property and her responses to the reporter indicated that she had some knowledge of the goings on at the farm. It concluded that it was “entitled to portray Mrs Burnby’s perspective in the item” and that her “brief appearance” was not unfair to her. It declined to uphold the complaint.

Referral to the Authority

[26]   Dissatisfied with the broadcaster’s response, Mrs Burnby referred her complaint under Standards 3, 5 and 6 to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

[27]   The complainant maintained that the item was misleading and that the broadcaster had dealt with her unfairly. She considered that TVNZ’s staff should have immediately acted on her “lawful” request that they vacate the property instead of “generally” ignoring her and continuing to ask her questions.

[28]   Mrs Burnby also contended that the item had breached her privacy in contravention of Standard 3.

Broadcaster’s Response to the Authority

[29]   TVNZ argued that the Authority did not have jurisdiction to consider Standard 3 (privacy), because the issue had not been raised by Mrs Burnby in her original formal complaint.

[30]   The broadcaster contended that “Mrs Burnby knew she was being filmed and ‘didn’t care’”. It said that “she chose to make statements about what she knew about the welfare of calves on the property and she acted as an agent of the farm (without, it appears, any authority) in telling the crew to leave”.

[31]   TVNZ maintained that the item had not misled viewers or treated the complainant unfairly, and that Close Up should not be blamed for the perception held by some viewers that Mrs Burnby had some involvement with the property in question.

Complainant’s Final Comment

[32]   Mrs Burnby disagreed that she was prohibited from raising the question of a breach of Standard 3 simply because it was not specifically included in her original complaint to TVNZ. She also contended that “breaches of privacy were at least implied” in the original complaint.

[33]   The complainant reiterated her argument that the item was misleading, inaccurate and unfair. She also stated that she “did, at the time of filming, have direct personal authority” to act as an agent of the farm in question, for the purpose of requiring unauthorised persons to leave the property.

Broadcaster’s Final Comment

[34]   TVNZ maintained that standards could not be added to complaints at the referral stage. It noted that the word “privacy” had not appeared in the original complaint and argued that a breach of Standard 3 was not “implied” in her original complaint.

[35]   The broadcaster noted Mrs Burnby’s contention that she had authority to tell “unauthorised persons” to leave, and maintained that this statement was “at odds” with comments made in the original complaint that she was “not connected in any way management-wise” with the farm.

Authority's Determination

[36]   The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Preliminary Matter

[37]   We note that, in her referral to the Authority, Mrs Burnby raised Standard 3 (privacy). Our task is to review the broadcaster’s decision and, as outlined in a number of decisions,¹ a complainant cannot raise new standards at the referral stage of the process.

[38]   We agree with TVNZ that Standard 3 was neither explicitly nor implicitly raised by Mrs Burnby in her original complaint and, as a result, we do not have jurisdiction to consider the privacy aspect of the complaint.

Standard 5 (accuracy)

[39]   Standard 5 states that broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming is accurate in relation to all material points of fact and does not mislead.

[40]   A majority of the Authority (Peter Radich, Tapu Misa and Leigh Pearson) does not uphold the accuracy complaint. We the majority note that while there was a relatively large amount of footage of the complainant during the start of the item, Mrs Burnby was shown saying she did not “run the farm” and that she was “just passing”. In our view, there were enough pointers to make it clear to a reasonably attentive viewer that Mrs Burnby was not the manager of the farm or the owner (Mr Crafar, who was interviewed in the programme), and that she was therefore not responsible for the animal cruelty on the farm.

[41]   We consider it relevant that the complainant was portrayed exactly as she presented herself. We note that Mrs Burnby was aggressive and hostile toward the reporter, that she was proprietary in assuming the right to order the reporter and film crew off the property, and that she initially answered the reporter’s questions about the mistreatment of calves on the farm, denying at first that the calves were being mistreated, and then implying that they had been in the past but were “not now” before refusing to comment further. If viewers gained the impression that Mrs Burnby knew something about what was happening at the farm, we are of the view that this was due to her actions rather than any attempt to mislead on the part of Close Up.

[42]   We therefore find that the Close Up item did not mislead viewers.

[43]   Accordingly, the majority declines to uphold the complaint that the item breached Standard 5.

[44]   A minority of the Authority (Mary Anne Shanahan) acknowledges that TVNZ broadcast Mrs Burnby’s comment that she did not run the farm. However, the effect of this statement was outweighed by the memorable and substantial footage of the complainant. The minority agrees with the complainant that the footage “conveyed a clear impression” that she was in some way connected to the farm in question and thereby to the alleged mistreatment of animals. In the minority’s opinion, most viewers would have remembered Mrs Burnby in connection with the mistreatment of the animals on the farm.

[45]   In the minority’s view, the item gave viewers the inaccurate and misleading impression that Mrs Burnby was connected to the mistreatment of animals on the farm. The minority would uphold the complaint that the item breached Standard 5.

Standard 6 (fairness)

[46]   The fairness standard requires broadcasters to deal fairly with any person or organisation taking part or referred to in a programme.

[47]   A majority of the Authority (Peter Radich, Tapu Misa and Leigh Pearson), considers that, overall, the broadcaster treated Mrs Burnby fairly.

[48]   As we have noted in our finding on Standard 5 (accuracy), we consider that the complainant was effectively excluded from any link with the maltreatment of animals on the farm. Mrs Burnby was clearly shown saying she did not “run the farm” and that she was “just passing”. While viewers may have questioned whether Mrs Burnby was in fact linked to the farm in some way due to her authoritative and aggressive defence of the property, she was given an adequate opportunity to respond to the questions put to her.

[49]   We acknowledge that footage of Mrs Burnby dominated the start of the programme -a still shot of her giving the finger led the item, and she was shown ordering the camera crew off the property. To find unfairness, we would have to conclude either that the footage misled or was gratuitous to the extent that it portrayed Mrs Burnby in an unfairly negative light. We have already found that it was not misleading for the reasons in paragraphs [40] and [41].

[50]   On the latter point, we note that Mrs Burnby chose to inject herself into the story.  She was not an innocent bystander caught unawares; she knew the crew was filming and to an extent invited them to continue: “You can film me, I don’t care.” By her aggressive and hostile behaviour, her responses to the reporter’s questions and her proprietary manner, Mrs Burnby unfortunately made herself a part of the story.  We conclude that the inclusion of footage of her interaction with the crew was not gratuitous, and consequently not unfair.

[51]   We understand the impact that the broadcast of such footage can have, and consider that the complainant would not have anticipated or appreciated the likely outcome of her contact with the Close Up crew. We accept that the complainant feels that she was portrayed in an unfairly negative light, but consider that it was her hostile behaviour towards the reporter that contributed to viewers’ negative perceptions of her. While we feel some sympathy for Mrs Burnby we can only conclude that the representation of her contact with the Close Up crew was truthful and, in all the circumstances, fair.

[52]   Accordingly, the majority declines to uphold the complaint that the item breached Standard 6.

[53]   A minority (Mary Anne Shanahan) considers that the mistreatment of animals on the farm was a serious matter and accepts that Mrs Burnby was not responsible for those events. The minority notes that, at the beginning of the programme, Mrs Burnby was shown walking up to the camera and that, directly after this, footage of dying calves was shown. Further, during the item’s introduction a still image of Mrs Burnby giving the finger was juxtaposed with more images of dying calves.

[54]   As stated in paragraphs [44] and [45], the minority considers that the effect of Mrs Burnby’s statement that she did not run the farm was outweighed by the memorable and substantial footage of her, and that most viewers would have remembered her in connection with the mistreatment of animals on the farm. In the minority’s view, this left an unfairly negative impression of Mrs Burnby. While she may have behaved with undue aggression to the reporter it must be remembered that Mrs Burnby is not subject to broadcasting standards. It is the broadcaster who must act with fairness towards her. It is the minority’s view that it was unfair to give Mrs Burnby such prominence in an article about animal mistreatment on a farm she had no connection with other than as a neighbour.

[55]   The minority would uphold the complaint that the item breached Standard 6.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Peter Radich
Chair
13 May 2010

Appendix

The following correspondence was received and considered by the Authority when it determined this complaint:

1.           Michelle Burnby’s formal complaint – 5 October 2009
2.          TVNZ’s response to the formal complaint – 2 November 2009
3.          Mrs Burnby’s referral to the Authority – 3 December 2009
4.          TVNZ’s response to the Authority – 19 February 2010
5.          Mrs Burnby’s final comment – 22 March 2010
6.          TVNZ’s final comment – 26 March 2010

¹See, for example, Bell and Television New Zealand Ltd (Decision No. 2009-052) and Easton and Radio New Zealand Ltd (Decision No. 2009-082)