BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
One News – investigation of availability of ingredients needed to make methamphetamine or ‘P’ – hidden camera footage of two shopkeepers – allegedly in breach of standards of good taste and decency, law and order, privacy, balance, accuracy, fairness, programme classification, and children’s interests

Findings
Standard 1 (good taste and decency) – standard not relevant – not upheld

Standard 2 (law and order) – items did not list all of the ingredients needed to make ‘P’ – no recipes or techniques mentioned – items did not promote, condone or glamorise criminal activity – not upheld

Standard 3 (privacy) – high level of public interest in the items – not upheld

Standard 4 (balance) – not relevant to complainant’s concerns – not upheld

Standard 5 (accuracy) – complainant did not identify any inaccuracies – broadcaster did not mislead or alarm viewers – not upheld

Standard 6 (fairness) – high level of public interest – not upheld

Standard 7 (programme classification) – items did not require warnings – not upheld

Standard 9 (children’s interests) – children unlikely to be watching the news unsupervised – items were not likely to disturb or alarm child viewers – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   On TV One at 6pm on 15 and 16 May 2008, One News reported on the ease of purchasing ingredients needed to manufacture methamphetamine or ‘P’, within a wider context of discussing the policies being proposed by political parties during election year on how they intended to combat drugs and New Zealand’s ‘P’ problem.

[2]   On 15 May, One News reporter Lisa Owen conducted a hidden camera report in two dairies in the Northland town of Moerewa. She started by saying that:

Most people would know that common cold and flu drugs can be used in its production, but there’s also numerous household products that you need for the brew and we went shopping for them.

[3]   Ms Owen held up two large plastic bottles as a “sample”, though the product was not identifiable. She told viewers that recipes for ‘P’ are easy to obtain, and that to make it “you only need about a dozen ingredients”. The two dairies in Moerewa, she said, were “selling a key one, isopropyl alcohol”. Close-up shots of the product were shown.

[4]   One News sent a man acting as a customer into the two dairies, carrying a hidden camera, to find out how easily he could buy ingredients for ‘P’. At “shop number two”, Ms Owen said:

...we bought more isopropyl and a collection of other items needed for ‘P’ production. No uncomfortable questions asked.

[5]   Subtitles quoted the shopkeeper as saying “you have a beautiful evening... don’t work too hard eh”. Ms Owen said that their “buyer” returned to the shop to buy another four litres of isopropyl alcohol, and asked the shopkeeper if he could purchase bigger quantities of the product. The following exchange took place while the hidden camera filmed the shopkeeper:

Shopkeeper:    I tell you why we don’t sell bigger... Thing is if I order a big one the bloody
                       cops will be in my shop asking me what I’ve ordered for... It is used for the
                       drugs... That is why they won’t let me have a big one.

Actor:              So you know?

Shopkeeper:    I know. No worries. It’s got nothing to do with me so I don’t mind.

[6]   Ms Owen said that the shopkeeper explained that “he usually tells customers to buy in bulk for a better deal”, and that the conversation turned to what the buyer wanted the products for, which was followed by this exchange, captured by the hidden camera:

Shopkeeper:     Do you sell it?

Actor:              Yeah.

Shopkeeper:     Be careful...

Actor:               And make it.

Shopkeeper:     Yeah I know, but whatever you do I don’t mind. Be careful.

[7]   Then, with Ms Owen’s commentary, the hidden camera footage concluded with the following:

Owen:               In case it’s not clear, our undercover shopper confirms again that he
                        wants to bulk buy the isopropyl for making drugs.

Shopkeeper:      So you make the drugs and you sell them eh?

Actor:               Yeah.

Shopkeeper:     That’s ok then.

Owen:               Our shopkeeper seems happy to take the dealer’s money, he’d just
                        rather no one knew it.

Shopkeeper:      Don’t tell anyone... you come and see me, [I’ll] give you a better price.

[8]   One News reporter Michael Parkin then discussed how politicians were proposing to deal with this issue. Views were sought from John Key (Leader of the Opposition), Annette King (Justice and Police Minister), Ron Mark (Law and Order spokesman for New Zealand First) and Greg O’Connor for the Police Association.

[9]   On One News the following night, 16 May 2008, Ms Owen reported that police had visited the two dairies in Moerewa and ordered that the isopropyl alcohol be removed from the shelves. Before that, she said, she had confronted the shopkeeper at the second shop. He was identified by name and again shown on camera, saying he did not know that the ingredients he had sold to the actor could be used to make ‘P’. Some of the hidden camera footage was replayed.

[10]   Ms Owen said that “Isopropyl alcohol is legally used in painting and cleaning industries, but this shopkeeper offers to supply bulk quantities knowing our buyer wants to make drugs”. More of the hidden camera footage was replayed. Ms Owen asked him if he would be worried about selling the products to someone who was going to use them to make drugs, to which he replied “that’s not good at all... it’s killing people... and we’re not here to kill people”. The reporter then asked the shopkeeper if he had sold the products to people he knew would use them to make methamphetamine. He replied that he had, but that he had no choice when the customers were insisting, and it was not his business to ask what they were going to use the products for.

[11]   Ms Owen informed viewers that she believed some stores were also unwittingly selling ‘P’ ingredients, and One News had sent its undercover buyer to a Northland supermarket, where he purchased “several of the necessary products along with just two decoy items”. These products were shown in the hidden camera footage being taken from the shelves and put through the checkout. In a voice-over, the undercover buyer said he “forgot something – good old butane gas”. Ms Owen then reported that “half a dozen stores later we have everything we need minus the cold remedy medicine containing pseudoephedrine”.

[12]   Immediately following this item, reporter Adrian Stevanon of One News reported how Moerewa had responded to One News’ investigation and interviewed a number of locals including a police sergeant and a primary school principal. Annette King was shown saying she was “appalled by the behaviour of [the second] shop owner”. The school principal said that Moerewa residents would continue shopping at the two dairies if the shop owners could guarantee that they would put “families first and profits and drug supplies second”. Mr Stevanon also reported that some of the locals felt that Moerewa was “being picked on”, and two offered the opinion that many other places in New Zealand experienced problems with drugs, not just Moerewa.

Complaint

[13]   J.E. Lewes made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the items breached standards of good taste and decency, law and order, privacy, balance, accuracy, fairness, programme classification, and children’s interests.

[14]   The complainant argued that Standard 1 (good taste and decency), Standard 2 (law and order), Standard 7 (programme classification) and Standard 9 (children’s interests), and specifically guidelines 1a, 2c, 2d, 7e, 9a and 9d, had been breached because One News:

... zoomed in on the two local stores giving us camera shots of the ingredients for ‘P’ the shops were selling on their shelves and interviewed a shop owner. Not content with this recipe giveaway for youngsters who may be watching they then reinforced it by buying the ingredients from a hapless Four Square checkout man and recorded his reactions and comments.

[15]   Mrs Lewes said that “they acted as ‘normal’ customers and filmed [the shopkeeper] secretly”, breaching guidelines 3a, 6b and 6c, and “returned and bought more of the same ‘ingredients’ to try and involve him further”, which breached guidelines 3a, 4a and 4b.

[16]   Later in the items, the complainant said, “they bought more of these ‘P’ requisites from a supermarket but did not show the shop assistant on film”, so that “by 6.20pm we all knew what we needed to buy to make ‘P’”. She argued this breached guideline 2d.

[17]   The secret filming breached guidelines 6b and 6c, Mrs Lewes argued, and was shown early in the programme, without any prior warning, when young people could be watching, which breached guidelines 7e and 9a.

[18]   Mrs Lewes wrote:

Members of the community were told about the stores selling these, until now innocent ingredients, but after the TV News reporters’ alarmist work (standard 5b), the ingredients and the store owners and assistants had become almost criminalised (standard 6g). It goes without saying that TVNZ’s “investigation” was by now breaching standard 5c.

[19]   The complainant argued that the 16 May item had also breached guideline 5c, because One News had interviewed the man they had “ensnared” the day before and:

...almost forced a confession out of the man about a possible crime he had not been aware he was possibly committing. A “crime” that had been stage managed by a TV1 News “investigative” team who, on interviewing him about this “crime” had become police, prosecutor, judge and jury. He had been entrapped by TV1 News “media police”...

[20]   Mrs Lewes said that if the investigation had been truly carried out in the public interest, One News could have simply alerted police that ‘P’ ingredients could be bought in any local store, and suggested ways of remedying the problem. The reporter’s findings “could have been reported to the public without the need to possibly ruin a man’s life, alarm a community, give vital ‘P’ making information to all and sundry and sicken viewers with unethical, irresponsible and abusive journalism”, she said.

[21]   The complainant concluded by arguing that the One News investigation breached guidelines 5b and 5c, and the way that it exploited its findings was not in the public interest, and therefore breached guidelines 6b and 6c.

Standards

[22]   Mrs Lewes nominated the following standards of the Free-to-Air Television Code of Broadcasting Practice in her complaint:

Standard 1 Good Taste and Decency

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the observance of good taste and decency.

Standard 2 Law and Order

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards which are consistent with the maintenance of law and order.

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Standard 7 Programme Classification

Broadcasters are responsible for ensuring that programmes are appropriately classified; adequately display programme classification information; and adhere to time-bands in accordance with Appendix 1.

Standard 9 Children’s Interests

During children’s normally accepted viewing times (see Appendix 1), broadcasters are required, in the preparation and presentation of programmes, to consider the interests of child viewers.

Broadcaster's Response to the Complainant

Standard 1 (good taste and decency)

[23]   TVNZ noted that Mrs Lewes had “made no direct complaint” under Standard 1. It contended that to constitute a breach of Standard 1, the broadcast material must have been unacceptable to a significant number of viewers in the context in which it was shown, including the programme’s classification, the time of broadcast, the intended audience and the use of warnings.

[24]   The broadcaster argued that One News was unlikely to be watched by unsupervised child viewers. It emphasised that neither news item contained anything that could be considered violent, sexual, coarse language, or other content likely to disturb children or offend a significant number of adult viewers. TVNZ concluded that the content of the items did not go beyond current norms of good taste and decency, and declined to uphold the Standard 1 complaint.

Standard 2 (law and order)

[25]   TVNZ stated that the Authority has found that for a breach of Standard 2 to occur, the broadcast must actively promote disrespect for the law. It said that nothing in One News actively promoted disrespect for the law.

[26]   The broadcaster disagreed that the One News items revealed what was required to make ‘P’. One ingredient, isopropyl alcohol, was referred to throughout the items because it was the product being readily sold in large quantities by shopkeepers. It said the other references to ingredients included “common cold and flu drugs”, “numerous household products”, “ingredients”, “materials”, and “necessary products”. It maintained that at no time did One News list the specific ingredients required to manufacture ‘P’, or reveal any recipes.

[27]   The intention of the item, TVNZ said, was to reveal the ease of obtaining the ingredients needed to make ‘P’. The stories did not condone or glamorise those activities, but rather showed a range of negative reactions from politicians, educators, residents and enforcement agencies. Accordingly, TVNZ declined to uphold the Standard 2 complaint.

Standard 3 (privacy)

[28]   TVNZ noted that in the introduction to the 15 May item, Ms Owen stated:

Methamphetamine costs this country hundreds of thousands of dollars a year and in 2006 more than half the High Court cases were related to methamphetamine.

[29]   This established a clear issue of public importance, the broadcaster said, and therefore privacy principle 8 applied, which states:

Disclosing the matter in the “public interest”, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint.

[30]   TVNZ therefore did not uphold the complaint that Standard 3 was breached.

Standard 4 (balance)

[31]   The broadcaster maintained that reasonable efforts were made by One News to present significant points of view on the issue discussed in the items. It said that the shopkeeper was given “ample opportunity” to present his point of view and “had the chance to state his perspective, which he did”. Accordingly, TVNZ did not uphold the Standard 4 complaint.

Standard 5 (accuracy)

[32]   TVNZ stated that there were no errors of fact in either item complained about. One News was truthful and accurate on all points of fact, and the items were not “misleading or alarmist in approach”, it said.

[33]   Regarding Mrs Lewes’ allegation that the shopkeeper was “criminalised”, the broadcaster noted that he had admitted on camera that he knew the purchasers of the items were using them to make drugs; One News simply reported this fact.

[34]   TVNZ disagreed that the shopkeeper was “ensnared”, as alleged by the complainant. It said that covert filming was “rarely used, carefully considered and always signed off by the Editor in Chief” and that in this instance it was justified by the public interest in the story.

[35]   Accordingly, TVNZ declined to uphold the complaint that the item was inaccurate.

Standard 6 (fairness)

[36]   TVNZ considered that all of the organisations and individuals referred to in the two news items were treated fairly. It maintained that the shopkeeper was informed by the reporter of her intentions as she entered his shop to interview him, he was aware of what was expected of him, and he was given the opportunity to state his perspective.

[37]   The broadcaster disagreed with the complainant that One News had “forced a confession” out of the shopkeeper who may not have been aware he was committing a crime. In his dealings with the undercover buyer the shopkeeper was clearly heard saying “so you make the drugs and sell them...?” and then cautioned the buyer to “be careful”. The following day the shopkeeper was given the opportunity to present his side of the story and he admitted that he knew the materials he was selling were for drugs manufacture. Further, no other shop assistants were visible in either news story, TVNZ said, so it could not be said that they were “criminalised”.

[38]   TVNZ did not uphold the complaint that the items breached Standard 6.

Standard 7 (programme classification)

[39]   The broadcaster considered that all of the material included in the two news items was “acceptable for inclusion in the context of a news programme”. TVNZ declined to uphold the Standard 7 complaint.

Standard 9 (children’s interests)

[40]   TVNZ stated that, although One News was broadcast within children’s normally accepted viewing times, it was expected that children would be watching in the company of an adult. It therefore considered that the interests of child viewers had been adequately taken into account, and that “the footage was appropriate in the context of the news which can contain violent, disturbing or alarming material as that is the nature of the news”. TVNZ reiterated that One News had not revealed any recipes for making ‘P’ or a complete list of the ingredients required. It did not uphold the complaint that the items breached Standard 9.

Referral to the Authority

[41]   Dissatisfied with TVNZ’s response, Mrs Lewes referred her complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. She reiterated many of the points made in her original complaint.

Authority's Determination

[42]   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.

Standard 6 (fairness)

[43]   Standard 6 requires that broadcasters deal justly and fairly with any person taking part or referred to in a programme. Mrs Lewes argued that the use of a hidden camera was unfair to the shopkeeper and breached guidelines 6b and 6c. As guideline 6b primarily relates to “door-stepping”, the Authority considers that guideline 6c is most relevant on this occasion. It provides:

Programme makers should not obtain information or gather pictures through misrepresentation or deception, except as required in the public interest when the material cannot be obtained by other means.

[44]   The Authority agrees that the footage of the shopkeeper was obtained through misrepresentation and deception, as the broadcaster used a hidden camera and an actor during its investigation. According to guideline 6c, the broadcaster would only have been justified in using these techniques if the material could not have been obtained by other means, and if it was “in the public interest”. The Authority is clear that the video could not have been acquired openly; the shopkeeper would not have engaged in the conversation if he was aware of being filmed.

[45]   Turning to the “public interest” defence, in Decision No. 2005-129 the Authority identified a number of subjects that might be in the public interest, including:

• Criminal matters
• Issues of public health and safety
• Exposing seriously anti-social and harmful conduct.

[46]   In this case, the footage exposed the shopkeeper’s dismissive attitude toward a serious criminal matter that continues to jeopardise the health and safety of the New Zealand public, and his willingness to assist in the manufacture of ‘P’ by offering an ingredient in bulk at a discounted price. This was of particular importance to the residents of Moerewa, who as a result of the items could take action and work to preserve the safety of their community.

[47]   In the Authority’s view, the shopkeeper’s conduct was of a sufficiently serious nature, and of sufficient concern to a significant section of the public, that the public interest in this matter entitled the broadcaster to broadcast the footage of the shopkeeper even though it was obtained by misrepresentation and deception. In these circumstances, the Authority finds that the public interest defence in guideline 6c applies, and it concludes that the broadcast of the items did not breach Standard 6.

Standard 3 (privacy)

[48]   Mrs Lewes argued that the hidden camera report breached the privacy standard. Standard 3 requires broadcasters to maintain standards consistent with the privacy of the individual, and to comply with the privacy principles in Appendix 2 of the Free-to-Air code.

[49]   The Authority considers that privacy principle 8 is relevant on this occasion. It provides:

Disclosing the matter in the ‘public interest’, defined as of legitimate concern or interest to the public, is a defence to a privacy complaint.

[50]   For the reasons outlined in its consideration of the fairness standard above (see paragraphs [46] and [47]), the Authority finds that the public interest in the items outweighed any expectation of privacy the shopkeeper may have had. Therefore it considers that the defence in privacy principle 8 applies, and it declines to uphold the Standard 3 complaint.

Standard 2 (law and order)

[51]   The Authority has stated on previous occasions (e.g. Decision No. 2005-133) that the intent behind the law and order standard is to prevent broadcasts that encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity. Mrs Lewes argued that “by 6.20pm [in the 15 May item] we all knew what we needed to buy to make ‘P’”.

[52]   The Authority notes that, although the One News reporter stated that about a dozen ingredients were needed to make ‘P’, only six or seven at most were referred to and/or shown visually in the items. Regardless, the items did not contain any details of the recipe – i.e. the “technique” – for making ‘P’, such that they invited imitation.  Further, the items were delivered with a strong tone of disapproval for ‘P’ manufacture, and presented it as a very serious criminal problem that needs to be addressed.

[53]   In these circumstances, the Authority concludes that the items did not encourage viewers to break the law, or otherwise promote, glamorise or condone criminal activity. Therefore it declines to uphold the complaint that Standard 2 was breached.

Standard 9 (children’s interests)

[54]   Standard 9 requires broadcasters to consider the interests of child viewers. Mrs Lewes argued that the “recipe giveaway for youngsters” in the items, and the fact that no warning was given when young people were likely to be watching, breached guideline 9a. It provides:

Broadcasters should be mindful of the effect any programme or promo may have on children during their normally accepted viewing times – usually up to 8.30pm – and avoid screening material which would disturb or alarm them.

[55]   While One News screened during children’s normally accepted viewing times, the Authority considers that children were unlikely to be watching the news unsupervised, and that the items did not contain anything likely to disturb or alarm child viewers. Further, as outlined above in its consideration of Standard 2, the Authority finds that the items did not divulge to viewers any recipes for making ‘P’ or even the full list of ingredients needed. Accordingly, it considers that the broadcaster sufficiently considered children’s interests, and it declines to uphold the Standard 9 complaint.

Standard 7 (programme classification)

[56]   Mrs Lewes argued that guideline 7e was breached. That guideline states:

Broadcasters should consider the use of warnings where content is likely to offend or disturb a significant proportion of the audience.

[57]   The Authority finds that the One News items were not likely to offend or disturb a significant proportion of the audience, such that the broadcaster should have considered screening warnings before the reports. Accordingly, it does not uphold this aspect of Mrs Lewes’ complaint.

Standard 4 (balance)

[58]   Standard 4 requires that, when controversial issues of public importance are discussed, broadcasters make reasonable efforts to present significant points of view in the programme. Although she cited guidelines 4a and 4b in her complaint, Mrs Lewes did not identify any significant viewpoints that she felt were missing from the items. Accordingly, the Authority considers that Standard 4 is not relevant to the complaint. However, it notes that Ms Lewes’ concerns about the hidden camera footage have already been dealt with under its consideration of the privacy and fairness standards above. The Authority declines to uphold this part of the complaint.

Standard 5 (accuracy)

[59]   Mrs Lewes did not point to any statements in the item which she considered were inaccurate, only stating that the One News investigation was “alarmist” and breached guidelines 5b and 5c:

5b    Broadcasters should refrain from broadcasting material which is misleading or     
        unnecessarily alarms viewers.

5c    Broadcasters must ensure that the editorial independence and integrity of news
        and current affairs is maintained.

[60]   The Authority considers that the items were not likely to mislead or unnecessarily alarm viewers in breach of guideline 5b. Nor did the investigation jeopardise the editorial independence or integrity of news and current affairs; the items were impartial and objective as required by the standard. Therefore the Authority declines to uphold this aspect of the complaint.

Standard 1 (good taste and decency)

[61]   The Authority has previously stated that the good taste and decency standard is intended primarily to address issues of sex, nudity, bad language and violence (see Decision No. 2006-035). Accordingly, it finds that Standard 1 has no application to the broadcasts complained about by Mrs Lewes, and it declines to uphold this part of the complaint.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
10 November 2008

Appendix

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

1.           J E Lewes’ formal complaint – 7 June 2008
2.          TVNZ’s response to the complaint – 4 July 2008
3.          Mrs Lewes’ referral to the Authority – 23 July 2008
4.          TVNZ’s response to the Authority – 14 August 2008