BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Fair Go – item critical of a real estate contract between Ms K and the National Property Centre Ltd – discussed the actions of the agent involved in drawing up the contract, as well as some of the terms and conditions – item also reported on another contract between the parties for renovation work to be done on Ms K’s property – allegedly in breach of privacy, balance, accuracy, fairness and programme information standards

Findings
Standard 3 (privacy) – item did not disclose any private facts about the complainant – not upheld

Standard 4 (balance) – item did not discuss a controversial issue of public importance – not upheld

Standard 5 (accuracy) – item distinguished statements of fact from opinion and comment – no inaccuracies – not upheld

Standard 6 (fairness) – the release form signed by Ms K permitted the complainant to discuss the matter with Fair Go – item did not misrepresent or sensationalise any of the issues discussed – the reporters did not need to delay broadcast until REINZ’s decision on Ms K’s complainant – a proper investigation had been carried out prior to the broadcast – not upheld

Standard 8 (programme information) – complainant did not specify how the standard was breached – not upheld

This headnote does not form part of the decision.

Broadcast

[1]   An item on Fair Go,broadcast on TV One at 7.30pm on 11 July 2007, looked at a real estate contract between a woman named Ms K and a real estate company called The National Property Centre MREINZ (NPC). The item explained that Ms K had entered into a contract with NPC, giving it exclusive rights both to market and sell her property. It went on to discuss the actions of the agent involved in drawing up the contract, Craig Peapell, and some of the terms and conditions of the contract.  Included in the segment was a photograph of Mr Peapell and video footage of NPC’s Whangaparaoa office.

[2]   During the course of the item, the following details were given:

• NPC was linked to a company called Jones Prichard Real Estate Ltd (JPREL)
• Ms K was originally from Korea and struggled with the English language
• the terms of the contract gave NPC exclusive rights both to market and try to sell Ms K’s property for a term of 1095 working days
• the terms of the contract allowed NPC to cancel the contract, by giving one week’s written notice to Ms K, but Ms K had no right to cancel the contract during the 1095 working day term
• areal estate expert and lawyer believed the contract was “unconscionable” and “one sided”
• Craig Peapell had arranged another contract with Ms K for work to be carried out on her property with the aim of increasing its value 
• the labourers who worked on improving Ms K’s property had lived there for nine weeks and had been paying Ms K a weekly rental of one dollar
• Ms K had never received an itemised invoice for the improvement work that had been carried out
• Ms K had paid $14,000 of a requested $21,000 for the improvement work and was refusing to pay the remainder
• as part of the contract NPC had placed a caveat on the property’s Certificate of Title
• Craig Peapell had stated to Fair Go that the 1095 working day term was a mistake.   

Complaint

[3]   Craig Peapell made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item had breached standards of privacy, balance, accuracy, fairness and programme information.

Standard 3 (privacy)

[4]   The complainant stated that the item had broadcast his name and photograph. Mr Peapell considered that the item had clearly identified him personally beyond his immediate circle of friends and family, and that this was an invasion of his personal privacy. He stated that he had subsequently received a number of threatening and abusive emails, and that his personal home address was identified in an email from somebody purporting to be the programme’s host.

[5]   Mr Peapell considered that NPC’s Stanmore Bay office was filmed without warning or invitation and that this had breached privacy standards.

[6]   The complainant also argued that Fair Go had breached a confidentiality clause within the contract that was displayed during the broadcast.

Standard 4 (balance)  

Ms K’s credibility

[7]   The complainant argued that the item had been presented in such a way as to cause both himself and NPC “maximum harm”. Mr Peapell considered that he and NPC had provided enough facts to the Fair Go teamprior to the item being broadcast for them to “question the credibility of Ms K’s complaint”. He maintained that Fair Go had blindly proceeded without the facts and had presented a distorted version of events.

Release form and confidentiality clause

[8]   Mr Peapell stated that a Fair Go reporter was going to obtain a release form from Ms K’s solicitor in order for him to be able to discuss the situation in a public forum. He maintained that despite reassurances that the reporter would obtain a release, he had never received one.

The REINZ complaint

[9]   Mr Peapell believed that the item was unbalanced because “Fair Go should have waited until it had investigated the facts… and carried out proper research” before broadcasting the item. He maintained that Fair Go’s reporters should have waited for the outcome of Ms K’s complaint to the Real Estate Institute of New Zealand (REINZ), rather than relying on one document (the contract). He stated that NPC had supplied evidence to REINZ regarding Ms K’s complaint that “painted a very different picture” of the situation.

Standard 5 (accuracy)

“What’s a real estate company doing fixing up her house?”

[10]  With respect to accuracy, Mr Peapell argued that the host’s statement “what’s a real estate company doing fixing up her house” was factually incorrect. He maintained that Ms K had “contracted the National Property Centre Limited (NPC Ltd) to do the renovation work, not NPC as implied in the item.

“Mrs K can’t even live in the house, as a result of JPREL’s contract”

[11]  The complainant maintained that the host’s statement “Ms K can’t even live in the house as a result of JPREL’s contract” was misleading and untrue.

“They’ve had six months to sell her property...” and marketing issues

[12]   The complainant considered that the host’s statement “they’ve had six months to sell her property and haven’t”, was false. He explained that there was a two stage strategy for marketing the property and that this had been agreed to by Ms K. The first stage was to give the property a makeover to be finished by the end of February 2007 and then JPREL was going to prepare a marketing programme which included an auction.  

[13]   Mr Peapell argued that Ms K had told JPREL to stop all public marketing activities for her house some four months before the item was broadcast and just after the completion of stage one of the marketing plan. He also stated that she would not sign an auction authority so an auctioneer who had been booked for April was cancelled. Mr Peapell maintained that Ms K had prevented JPREL from properly marketing the property and that he had explained the marketing strategy to Fair Go’s reporter.

[14]   The complainant also argued that the item was inaccurate because “no proper investigation was carried out by Fair Go prior to the item being screened”. As a consequence, Fair Go had completely believed what Ms K was saying when NPC had a different version of what had happened, he said. 

[15]   Mr Peapell argued that the item had failed to distinguish between opinion, analysis and comment in an impartial way, and that this had caused the item to be inaccurate.

Standard 6 (fairness)

One dollar rent and the tenants

[16]  With respect to fairness, the complainant considered that the nominal rent of one dollar being paid by the people working on Ms K’s house was “totally misrepresented…and presented as something dodgy”. He maintained that if the workers had had to stay in a motel, the work would have cost Ms K far more.

[17]   The complainant said that Ms K was renting her house to a tenant for market rent at the time, so she was not “out of pocket or disadvantaged as presented in the item”. He also maintained that the agreement was for the house to remain empty.

 Accusations of laziness

[18]   Mr Peapell argued that the workers were at Ms K’s property for nine weeks and that she was rarely there. He believed the accusations made by Ms K that all the workers did was sleep, eat and watch television were unfair and untrue.

Private purchaser

[19]   Mr Peapell maintained that Ms K’s solicitor had information on hand which he did not release until after the item had been screened. This information related to questions NPC had been trying to get answered concerning Ms K’s attempts to sell the property privately in breach of the contract. The complainant pointed out that Ms K’s lawyer sent a fax to NPC the day following the broadcast that denied any other contract had been entered into to sell the house, but which did not deny the existence of other private interests keen on purchasing the property. Mr Peapell believed that if this information had been available prior to the item being broadcast, he would have been able to show Fair Go that Ms K was trying to sell the property herself, so as to avoid paying NPC any commission. He argued Fair Go had not researched the matter properly, were “relentless to screen the show” and that this had led to the item being unfair. 

[20]   The complainant contended that Ms K was “prepared to take the increase in value in her home due to the makeover” but was not prepared to honour her agreement with NPC.

Caveat

[21]   The complainant stated that the reason the caveat was placed on the property was because NPC had the legal right to protect its fees, commissions and any money owing. He also maintained that Ms K had refused to confirm or deny the existence of a private buyer after she instructed JPREL to silently market her house in early March 2007.

Standard 8 (programme information)

[22]   Referring to guideline 8e of the programme information standard, the complainant stated that programmes dealing with products or services shall not by implication, omission, ambiguity, or exaggerated claim, mislead or deceive viewers. 

Fair Trading Act

[23]  The complainant also argued that Fair Go had breached the Fair Trading Act 1986.

Standards

[24]  Standards 3, 4, 5, 6, 8 and guideline 8e of the Free-to-Air Television Code of Broadcasting Practice and privacy principle 1 of the Authority’s privacy principles are relevant to the determination of this complaint. These provide:

Standard 3 Privacy

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

Privacy Principle 1

It is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

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 8 Programme Information

Broadcasters are responsible for ensuring that programme information and structure does not deceive or disadvantage the viewer.

Guideline 8e

Programmes dealing with products or services shall not by implication, omission, ambiguity, or exaggerated claim, mislead or deceive viewers.

Broadcaster's Response to the Complainant

Standard 3 (privacy)

[25]   TVNZ stated that while Mr Peapell was identifiable in the broadcast, the item did not disclose private facts about the complainant in a manner that would be highly offensive to an objective reasonable person. It said that a Fair Go reporter had been at NPC’s Whangaparaoa office, and had filmed the outside of the office and through the window at the desks and chairs inside. The broadcaster stated that the item had given the complainant’s name as the real estate agent who drafted up the contract and showed his photo when the item discussed the main points from the statement the complainant had provided to it.

[26]   The broadcaster maintained that the item did not publish Mr Peapell’s home address or disclose any private facts about him. It argued that, as a real estate agent, Mr Peapell’s name, place of business and photograph was in the public realm. TVNZ pointed out that the complainant’s photo was displayed in the window of the Whangaparaoa office “where anyone could see it”. It stated that Mr Peapell had not been filmed covertly and that a reasonable person would not find the information disclosed about him in the item to be highly offensive.

[27]   With respect to the complainant’s allegation that his personal home address was identified in an email by the host of Fair Go, TVNZ pointed out that this had not formed part of the broadcast. The broadcaster noted that NPC’s website allowed anyone to enter any details they wanted to and argued the emails were obviously written by somebody who had put in false details. It declined to uphold the complaint that the item had breached Standard 3 (privacy).

Standard 4 (balance)

[28]   With respect to balance, the broadcaster argued that the item had not discussed a controversial issue of public importance. It maintained that Mr Peapell had been given an opportunity to supply a statement to Fair Go which had been included in the broadcast and that he was invited both verbally and in writing to take part in an interview, which he declined.

The REINZ complaint

[29]   In response to the complainant’s belief that Fair Go should have waited until REINZ had completed its investigation, TVNZ argued that news organisations routinely reported on matters being investigated by governing bodies, authorities and courts. It maintained that it was not required to “hold off” on the story until REINZ had completed its investigation into Ms K’s complaint. The broadcaster also pointed out that it had never received copies of the documents supplied by Mr Peapell to REINZ in defence of Ms K’s complaint, despite a request that Mr Peapell provide them.

Release form and confidentiality clause

[30]   With respect to the release form, the broadcaster maintained that its reporter had obtained a release from Ms K and forwarded it to both the complainant and Ms K’s solicitor on 6 July 2007. It pointed out that Mr Peapell had then provided a statement to Fair Go on 11 July 2007.

[31]   With respect to the confidentiality clause in the contract, the broadcaster stated that the listing contract had been described as “unconscionable” by an independent real estate expert and as such, the clause would be likely to be void. The broadcaster declined to uphold the complaint that the item was unbalanced.

Standard 5 (accuracy)

“What’s a real estate company doing fixing up her house?”

[32]   With respect to the host’s statement “what’s a real estate company doing fixing up her house?”, the broadcaster maintained that from page five of Mr Peapell’s complaint he referred to “we” when talking about doing renovation work on the property. It argued that because Mr Peapell wrote the complaint he appeared to be involved in both NPC Ltd and NPC, the trading name of JPREL. TVNZ maintained there was very little to separate the two entities and it appeared that the complainant himself had been working on the house.

“They’ve had six months to sell the property...”

[33]   TVNZ maintained the statement “they’ve had six months to sell the property and haven’t” was accurate, as Ms K’s property had been listed with NPC for six months at the time of broadcast.

Ms K’s credibility

[34]   Responding to the complainant’s assertion that he “had given enough factual information to question the reliability of Ms K” prior to broadcast, TVNZ argued that Mr Peapell had been asked on numerous occasions to supply information or proof of his allegations and he had not done so.

[35]   TVNZ stated that it had followed up the complainant’s lead regarding Ms K’s credibility and that its investigations had not found anything to substantiate Mr Peapell’s “hints”. The broadcaster found the item was accurate and had not breached Standard 5 (accuracy).

Standard 6 (fairness)  

[36]   With respect to fairness, the broadcaster maintained that the complainant and NPC had been treated fairly throughout the broadcast. It stated that Mr Peapell had been offered the opportunity of an interview, which he declined, and that the item had included the complainant’s statement received by Fair Go.

One dollar rent and tenants

[37]   TVNZ maintained that the item did not state that the one dollar weekly rental paid by the labourers contracted to improve Ms K’s property was “dodgy”. It argued that it was unusual to rent a property for this nominal amount and the tone of the programme had reflected that.

[38]   With respect to Mr Peapell’s assertion that Ms K had placed tenants in the house when under the agreement it was to remain empty, TVNZ argued that the property would not have been empty as the labourers were living there. It also pointed out that it was commonplace for real estate agents to work their marketing around tenants. The broadcaster also noted that it had not stated that Ms K had been disadvantaged by the workers living at her house.

 Accusations of laziness

[39]   In response to the complainant’s allegation that the item presented the labourers as lazy and as only working for a few hours a day, TVNZ considered that the comments were Ms K’s genuine recollections of what she had seen.

Private purchaser

[40]   In respect of the complainant’s allegation that Ms K had her own private buyer for the property, TVNZ maintained that NPC had never supplied Fair Go with any evidence of a private interest. It noted that the only lead given to it by the complainant with respect to this matter was the short term listing with another real estate company, which eventually had to be withdrawn because of NPC’s involvement in Ms K’s property. It pointed out that it had reported this fact in the item. The broadcaster maintained that it had looked into the hints and leads given to it by Mr Peapell, but its investigations had revealed nothing.

Other matters

[41]   TVNZ maintained that it had not sensationalised the contractual term of 1095 days and that the duration of the contract was sensational in itself. It pointed out that while NPC had admitted the length of the term was a mistake, the error had never been corrected.     

[42]   TVNZ was of the view that it had accurately reported on the facts of the contract and the improvement work, as well as the positions of both Ms K and NPC. It considered that the item was not malicious in any way.

[43]   The broadcaster stated that the focus of the Fair Go item was the original contract, the amendment to the contract covering the work done on the house, the caveats placed on the house and the invoice from NPC Ltd for work done. It maintained the complainant had not supplied it with any further information, despite being requested to, and that it had all the relevant documents and information required for the item to be accurate.

[44]   In terms of comments made about the marketing of the property, TVNZ considered that marketing issues were not the focus of the item and that they were not discussed in any detail.

[45]   TVNZ considered that because Ms K’s property had not been sold, there was no proof that there was any actual increase in its value. It also believed that “Ms K’s reluctance to honour the agreements was based on NPC’s failure to produce a full and properly itemised set of invoices and receipts, despite requests from her lawyer”.    

[46]   The broadcaster argued that the conduct of Ms K’s lawyer was not a relevant issue in terms of broadcasting standards and could not form part of Mr Peapell’s formal complaint.

[47]   TVNZ reiterated that the complainant had not provided it with any evidence of an attempted private sale by Ms K and noted that NPC had subsequently lifted one of its caveats on the property’s certificate of title.

[48]   The broadcaster argued that having the labourers live in Ms K’s house may not have saved her any money as she had to pay for utilities, which included a $500 power bill. It also maintained that the item never stated that the work had not been done, or that it did not need doing or that an unreasonable price had been charged. TVNZ stated that the item’s focus was on the fact that Ms K had never received an itemised invoice detailing the work completed.

Standard 8 (programme information)

[49]   TVNZ pointed out that Standard 8 was related to issues such as subliminal advertising and misleading advertising, and also to ensure that advertising material and programming was clearly identifiable to the viewer. It declined to uphold the programme information complaint.

Fair Trading Act

[50]   With respect to the complainant’s concerns regarding the Fair Trading Act 1986, TVNZ maintained that the Fair Go journalists did not hold themselves out to be experts. It argued that when expert advice was required, it had sought advice from the appropriate expert sources. TVNZ declined to uphold the complaint.        

Referral to the Authority

[51]   Dissatisfied with TVNZ’s decision, Mr Peapell referred his complaint to the Authority under section 8(1)(a) of the Broadcasting Act 1989.

Further Information Requested by the Authority

Information requested from TVNZ

[52]   The Authority asked TVNZ to provide:

• any information that TVNZ had provided to Mr Peapell prior to the broadcast to indicate the focus of the programme and the nature of Ms K’s allegations
• any questions that were asked of Mr Peapell prior to the broadcast
• whether TVNZ was aware of the two stage marketing plan
• whether TVNZ had any information about Ms K’s actions (as alleged by Mr Peapell) including her taking the keys to her property in early March 2007 and telling NPC not to market the property at that time. 

Information provided by TVNZ to Mr Peapell

[53]   TVNZ stated that Mr Peapell was sent a detailed question list, which also included an invitation to do an interview, on 5 July. It provided a copy of this list to the Authority and said that the focus of the questions and the complaint was “quite clearly the onerous nature of the contract, the questions arising from the second contract and work done on the property”.

Questions asked of Mr Peapell prior to broadcast

[54]   The broadcaster stated that as well as the question list provided to Mr Peapell, he was also asked to provide Fair Go with any additional information that would affect the way the programme presented Ms K’s complaint. It gave the following quote from its reporter outlining the information Mr Peapell had given to her and the follow-up she had done:

Mr Peapell repeatedly hinted that there were things about Mrs K that we didn’t know, including questioning her immigration status – but refused to give us any details. He suggested she had not been entirely honest, hinted that she might have tried to sell the house despite being under contract to NPC, but would not elaborate for instance, by naming a real estate agency supposedly involved. I told him I had asked Mrs K whether she had sold, or was listed with another agency and she denied this.

I repeatedly told Mr Peapell that if there was something substantial that would impact significantly on how Fair Go handled this story then he needed to provide details. He did not. Eventually he did say that we should call another real estate agency in Hamilton if we wanted to learn more – I did so, I spoke to the real estate agent who previously listed the house, and asked if there was anything untoward in his dealings with Mrs K or anything about her we should know – he replied in the negative. This did not give me cause to think there was anything substantial in the hints Mr Peapell had been making. 

TVNZ’s awareness of the two stage marketing plan

[55]   TVNZ noted that, in his statement to Fair Go, Mr Peapell said that Ms K had told him that she would rent the property out to her brother and that during this time the property was to be marketed silently. It was unsure as to whether this was Mr Peapell’s reference to the two stage marketing plan.

[56]   The broadcaster maintained the marketing of the property was not the focus of Fair Go’s investigation or the broadcast and that it was not part of Ms K’s complaint. It was of the opinion that the marketing issues raised by Mr Peapell in his formal complaint seemed “to be an effort to discredit Ms K” and an attempted distraction from the central issues looked at in the programme.

 Information TVNZ had about Ms K’s actions

[57]   TVNZ argued that there was an inconsistency between Mr Peapell’s allegations in his complaint and referral, and the statement he provided to Fair Go to be used in the broadcast. In his statement to Fair Go Mr Peapell said that, because Ms K was renting the house out to her brother, the keys were returned to her and NPC was to market the property “silently...and by appointment only”. It noted that his statement did not say that NPC was told by Ms K not to market the property at all. TVNZ also pointed out that in answer to the Authority’s further information request, Mr Peapell referred to having “introduced a number of potential buyers to the property” but only named one occasion when Ms K refused NPC access to the property.   

[58]   The broadcaster maintained that the item did not focus on Ms K’s behaviour following the signing of the contract and the problems arising from the work done on the house. It argued that the item did not raise any complaints about the marketing process and the “subsequent (alleged) problems around access or otherwise to the property”.

[59]   TVNZ stated that it did “not understand how Ms K’s suggested or suspected behaviour after signing the contracts in any way justifies or explains the extraordinary clauses in those contracts”.

[60]   With respect to Ms K’s involvement with a second real estate agency, the broadcaster stated that it had investigated Mr Peapell’s “broad unsubstantiated hints” and had reported in the item that Ms K had attempted to list her property with another agency. 

Information requested from Mr Peapell

[61]   The Authority asked Mr Peapell to provide:

• a copy of the confidentiality clause in the contract with Ms K
• a copy of the release/privacy waiver signed by Ms K and given to Mr Peapell by Fair Go
• copies of any communications between Mr Peapell and Fair Go about his ability to provide information about his contract with Ms K and her actions in relation to the contract.
• any written evidence of the two stage marketing plan outlined in Mr Peapell’s correspondence e.g. written amendments to the original contract.

 Confidentiality clause

[62]   In response, the complainant provided the Authority with the wording of the confidentiality clause contained in the contract. It read:

The Owners herein warrant that the information contained in this agreement and hereafter discussed between the parties shall remain completely confidential to those named and their legal advisors and that the obligations in respect of this clause continue until 1095 working days after this agreement is concluded, or the parties herein agree in writing that the information is no longer confidential. Should the owner breach this clause in any way then NPC may exercise clause 2(f) herein at NPC’s discretion.

[63]   Mr Peapell stated that he understood that a copy of the contract was given to Fair Go by Ms K or her solicitor prior to any release or consent being signed and that this in itself breached the confidentiality clause. He argued that Fair Go “as consumer advocates in trade” had a duty of care under the Fair Trading Act not to place Ms K in a position of breach of contract.

[64]   The complainant noted that Fair Go argued that itwas not a party to the contract so it was not bound by the contract’s terms and had relied on this point to excuse itself from being accountable for a breach of any of those terms.

Release/privacy waiver  

[65]   Mr Peapell said that the release form he received was headed “Privacy Authorisation” and read:

Some organisations approached by Fair Go have claimed the 1993 Privacy Act prevents them from releasing information about individuals even though the person concerned has asked Fair Go to investigate their case.

To prevent Fair Go being denied legitimate information in your case, we ask you to sign the following authorisation:

I, Ms K authorise any person or entity holding information concerning me to release that information to the Television New Zealand programme Fair Go for the purpose of its investigation into my complaint.

[66]   The complainant said that it was signed by “what looks to be [Mrs K’s] signature” but that he could not be sure that it was.

Copies of communications between himself and Fair Go about his ability to provide    information and Ms K’s actions in relation to the contract.

[67]   Mr Peapell did not provide the Authority with any copies of communications he had with Fair Go about his ability to provide information or about Ms K’s actions in relation to the contract. However, he stated that in a conversation with a Fair Go reporter in early July 2007, he had told the reporter that before he would consider disclosing any information he wanted a signed “authority authorising such a release from Mrs K and her solicitor”. The complainant maintained that despite the reporter sending a consent notice to Ms K’s solicitor, “no such authorisation was forthcoming”.

[68]   The complainant argued that he had never received a signed release form from Ms K’s solicitor and that he had never signed a release “as required by the confidentiality clause in the contract proper”. Therefore all the information was to remain confidential, he said. 

[69]   Mr Peapell stated that a Fair Go reporter did try to arrange a meeting between the parties to try and resolve the issues, but that “neither Ms K nor her solicitor would take up the opportunity”. He also stated that Ms K and her solicitor had declined NPC’s numerous requests for a meeting as well. 

 Marketing plan and amendments to the contract

[70]   The complainant said that from the outset JPREL had “talked about a two stage marketing plan which involved addressing the maintenance requirements and advertising and marketing of the property”. He maintained that Ms K was adamant that she wanted to proceed with the plan that he had discussed with her.

[71]   Mr Peapell stated that it was agreed that stage one would cover the maintenance requirements which were to be carried out by another company called the National Property Centre Limited. He said that this would then be followed by stage two, which was the marketing of the property for sale, and which was to include an auction.

[72]   The complainant said that pre-auction open homes were held by JPREL with the introduction of a number of parties who had seen the property previously. He said that Ms K had stopped one of the parties from having a second viewing of the property in late February 2007.

[73]   Mr Peapell stated that a variation to the existing agreement was prepared and presented to Ms K at the beginning of March 2007 as planned and that this included the auction authority authorising JPREL and an auctioneer to auction the property. He said that the booking for an auctioneer had to be cancelled as Ms K had refused to sign the required authority, but “still insisted we hold the auction”.

[74]   The complainant provided the Authority with a copy of what he said was the unsigned variation to the existing agreement that outlined the terms for auction and the Code of Practice for the Sale of Real Estate by Auction from REINZ. He also included a list of marketing options from stage two of the alleged marketing plan that included a web page, colour flyers, advertisements in the New Zealand Herald and Waikato Times newspapers, mail-outs and signage.     

 Additional background information

[75]   Mr Peapell also supplied the Authority with some additional background information. It included the details of how he and Ms K originally came into contact, some further information on his allegation that Ms K was trying to sell her property both privately and with another agency, and a reiteration that NPC had not had six months to sell the property. 

[76]   The complainant also provided the Authority with a copy of an internet advertisement from 12 February 2008 by a real estate agency offering Ms K’s property for sale.   

Broadcaster’s Comments on the Complainant’s Response

[77]   TVNZ noted that Mr Peapell had not supplied a copy of the contract between NPC and Ms K, but rather he had only supplied the wording of the clause itself.

[78]   The broadcaster argued that Ms K had given her permission for Mr Peapell to supply comment on the case and that he did not require the permission of Ms K’s lawyer to comment as her lawyer was not a party to the contract.

[79]   TVNZ pointed out that the contract was signed on 13 January 2007 and the item was broadcast on 11 July 2007. It reiterated that NPC had six months to sell the property at the time the item was shown on Fair Go.

[80]   The broadcaster noted that NPC had since removed the caveats it had placed on the property’s Certificate of Title and that this had enabled Ms K to relist her property in 2008.

[81]   TVNZ argued that the complainant had not provided the Authority with any proof of the two stage marketing programme as it had requested.

Complainant’s Comments on the Broadcaster’s Response  

[82]   Mr Peapell stated that he had advised TVNZ that he was unable to comment at the time it requested his response because of the Privacy Act and due to the confidentiality clause. He also maintained that Ms K had never discussed her concerns with NPC or himself prior to complaining to Fair Go.

[83]   The complainant said that in February 2007, Ms K had told him that she had a private interest and had sold the property. He stated that Ms K’s solicitor had refused to confirm or deny the existence of a private sale until the day after Fair Go’s broadcast on 11 July 2007, at which time he denied that there was a private sale.

Broadcaster’s Final Submission

[84]   TVNZ reiterated its arguments relating to the confidentiality clause, the alleged private interest and the actions of Ms K’s lawyer.

[85]   The broadcaster maintained that many of the issues raised by the complainant in his correspondence had nothing to do with the issues raised in the original Fair Go item.

[86]   In response to Mr Peapell’s claim that Ms K had never raised her concerns with either him or NPC, the broadcaster included a copy of an email from Ms K to Mr Peapell requesting the cancellation of the contract due to its abnormal terms and conditions. This email was undated, but TVNZ stated that it was sent by Ms K four months after signing the contract with NPC. 

Complainant’s Final Submission

[87]   With respect to the confidentiality clause, Mr Peapell stated that Fair Go had a copy of the contract so they could see for themselves that the wording he supplied the Authority was authentic.

[88]   The complainant maintained that both parties had to sign the release to waive the confidentiality requirement and that he was bound by it at the time of broadcast. He also said that he was not obliged to give Fair Go anything or give any comment at all on the matter.

Authority's Determination

[89]   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 Matters

[90]   The Authority notes that it only has powers to deal with complaints concerning television and radio broadcasts, as set out in the Broadcasting Act 1989. It does not have jurisdiction to deal with the issues raised by Mr Peapell relating to the Fair Trading Act or the internet.  

[91]   Mr Peapell’s complaint made a number of allegations with reference to more than one standard of the Free-to-Air Television Code. The Authority has addressed each element of Mr Peapell’s complaint with reference to the standard it considers to be most relevant below.

Standard 3 (privacy)

[92]   Privacy Principle 1 states that it is inconsistent with an individual’s privacy to allow the public disclosure of private facts, where the disclosure is highly offensive to an objective reasonable person.

[93]   The item identified the complainant and disclosed his name without his consent. However, the Authority agrees with TVNZ that, as a real estate agent, Mr Peapell’s name, photograph and place of business were in the public domain. It concludes that the item did not disclose any private facts about the complainant and as such, it did not breach privacy principle 1.  Accordingly, the Authority declines to uphold the privacy complaint.

Standard 4 (balance)

[94]   Standard 4 requires that balance be provided only when controversial issues of public importance are discussed. On this occasion, the item discussed a contractual arrangement between Ms K and NPC to market and sell her property. The Authority finds that the item did not discuss a controversial issue of public importance; it dealt solely with a contractual dispute between two parties. Accordingly, the Authority finds that Standard 4 does not apply and it declines to uphold the balance complaint.

Standard 5 (accuracy)

[95]   The accuracy standard requires that news, current affairs and other factual programmes be truthful and accurate on points of fact. It is the Authority’s view that Fair Go is a factual programme and, as such, is required to be accurate on points of fact.

“What’s a real estate company doing fixing up her house?”

[96]   Mr Peapell argued that this statement was factually incorrect because it was not NPC or JPREL that was contracted to do the fix-up work on the property, but NPC Ltd. The Authority finds that while these entities were technically separate, there was a significant degree of crossover between the three companies and their operations. Mr Peapell acted as a real estate agent for NPC, which was the trading name of JPREL, and Mr Peapell was also the director of NPC Ltd.

[97]   The Authority notes that the suggestion to increase the value of the property by carrying out some improvement work seems to have been made by Mr Peapell in his capacity as a real estate agent for NPC. His company NPC Ltd was then contracted to do the repairs. The Authority concludes that the statement made in the programme was acceptable shorthand to describe the situation to viewers. Accordingly, the Authority declines to uphold this aspect of the accuracy complaint.     

“They’ve had six months to sell her property and haven’t”

[98]   The complainant has alleged that JPREL had not had six months to sell the property at the time of the broadcast, because Ms K had prevented it from fully implementing its two-stage marketing plan. The Authority notes that NPC had the sole rights to the listing of Ms K’s property and had been marketing it silently on its website for six months at the time that the item was broadcast. In these circumstances, it considers that the host’s statement was true. Accordingly, the Authority declines to uphold the complaint that the statement “they’ve had six months to sell the house and haven’t” was inaccurate.

“Mrs K can’t even live in the house, as a result of JPREL’s contract”

[99]   Mr Peapell argued that during the item the host made the statement that “Mrs K can’t even live in the house, as a result of JPREL’s contract”, and that this was misleading and untrue. After having reviewed the tape, the Authority points out that the host actually said “The house is in Hamilton, [Ms K has] now moved to Auckland, so she can’t even live in it...”. It considers that the host was referring to the fact that Ms K could not live in the house because she had moved to Auckland and as such, the statement was accurate. Accordingly, the Authority declines to uphold the complaint that the statement was inaccurate.

Other matters

[100]   Mr Peapell maintained that the item was inaccurate because “no proper investigation was carried out by Fair Go prior to the item being screened”. The accuracy standard applies to points of fact rather than research and investigation work. Accordingly, the Authority subsumes its consideration of this aspect of the complaint into its consideration of Standard 6 (fairness).

[101]   The complainant has argued that the item failed to distinguish between opinion, analysis and comment in an impartial way. The Authority disagrees. It considers that the factual elements of the contract’s terms and conditions reported in the item were clearly distinguishable from Ms K’s and Fair Go’s opinions and commentsregarding matters such as the work ethic of the labourers living at the house. Accordingly, the Authority declines to uphold the accuracy complaint.       

Standard 6 (fairness)

Release form and confidentiality clause

[102]   Mr Peapell argued that the contract at the centre of Fair Go’s report contained a confidentiality clause which prevented both parties from discussing anything to do with the arrangement, unless both parties had given their consent. The Authority notes that on 6 July 2007 the complainant received a release form signed by Ms K, the contents of which are outlined in paragraph [64] above. It considers that the release form gave Mr Peapell permission to respond to the questions and allegations put to him by the programme’s reporters, particularly because Ms K had already disclosed the terms of the contract to Fair Go.       

[103]   The complainant maintained that he required a release from both Ms K and her solicitor before he could discuss the matter with Fair Go. The Authority disagrees. The contract was between Ms K and NPC. Ms K’s lawyer was not a party to the agreement and as such its terms and conditions did not apply to him.

[104]   Taking into account the terms of the confidentiality clause and the waiver provided by Ms K, the Authority concludes that there was nothing preventing Mr Peapell from discussing the contract with Fair Go. Accordingly, the Authority declines to uphold this aspect of the fairness complaint.

One dollar rent

[105]   Mr Peapell believed that the nominal rent of one dollar a week being paid by the labourers was misrepresented and sensationalised. In relation to this issue, the Authority notes that the host stated “...they drew up a contract which allowed three guys, the workers, to live in her house for ten weeks, pretty much expenses-free for just a dollar a week. Yes, one dollar a week”. Later in the item, while the hosts were discussing Mr Peapell’s response to Fair Go, one of the hosts said “Well they haven’t explained...why these guys had this virtually rent-free, expenses-free, stay in her house”. The Authority considers that while the item presented this aspect of the arrangement as unusual, it did not sensationalise or misrepresent the reality of the situation. Accordingly, the Authority declines to uphold this aspect of the fairness complaint.

Accusations of laziness

[106]   With respect to Ms K’s accusations that the labourers did little work, but slept, ate and watched television a lot of the time, the Authority agrees with TVNZ that these comments were her own genuinely held opinions based on what she had seen. It also points out that these accusations were put to Mr Peapell in a list of questions sent to him by Fair Go’s reporter six days prior to the broadcast and, as such, he was given a reasonable opportunity to respond to them. The item reported Mr Peapell’s assertion that Ms K had agreed to the work being done and that she had already paid $14,000. Accordingly, the Authority declines to uphold the complaint that the inclusion of Ms K’s comments in the item was unfair.

The REINZ complaint

[107]   The complainant maintained that Fair Go should have waited until the outcome of Ms K’s complaint to REINZ before broadcasting the item. The Authority agrees with the broadcaster that news organisations routinely report on matters being investigated by governing bodies, authorities and courts. It finds that Fair Go was entitled to report on this matter and TVNZ was not required to postpone the broadcast until REINZ had determined Ms K’s complaint. Accordingly, the Authority declines to uphold this aspect of the fairness complaint.

Other matters  

[108]   With respect to Mr Peapell’s argument that “no proper investigation was carried out by Fair Go prior to the item being screened”, the Authority considers that Fair Go did conduct an adequate investigation into the matter. The investigating reporter had supplied the complainant with a list of detailed questions which alerted him to everything the item was going to cover. In the Authority’s view, Mr Peapell was given more than one opportunity to put forward his side of the story – including his arguments relating to the existence of a private purchaser, and why caveats had been placed on the property – but he chose not to. Accordingly, the Authority declines to uphold the complaint that the item was unfair.    

Standard 8 (programme information)

[109]   The Authority notes that the complainant did not specify exactly how the item breached Standard 8, but simply repeated the wording of guideline 8e in his complaint. In these circumstances, the Authority declines to uphold the complaint that the item breached the programme information standard.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
18 March 2008

Appendix

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

1.            Craig Peapell’s formal complaint – 19 July 2007
2.           TVNZ’s response to the formal complaint – 27 August 2007
3.           Mr Peapell’s referral to the Authority – 6 September 2007
4.           TVNZ’s response to the Authority – 19 November 2007
5.           Mr Peapell’s response to the request for further information – 18 February 2008
6.           TVNZ’s response to the request for further information – 18 February 2008
7.           Mr Peapell’s comments on TVNZ’s response to the Authority’s request – 25 February 2008
8.           TVNZ’s comments on Mr Peapell’s response to the Authority’s request – 25 February 2008
9.           TVNZ’s final submission – 27 February 2008
10.          Mr Peapell’s final submission – 29 February 2008