BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 198
Fair Go – item on sales seminars run by Wenatex which sells beds – sales consultant shown saying in reference to her colleague, “he was in front of a wheelchair” – allegedly in breach of privacy, accuracy and fairness standards

Findings
Standard 6 (fairness) – complainants were not given an opportunity to respond – unable to determine whether the editing of the footage was unfair as raw footage was destroyed, but still unfair overall – upheld

Standard 3 (privacy) – HC was identifiable even though her face was blurred, due to her distinctive accent, clothing, and occupation – no interest in seclusion – public interest – not upheld

Standard 5 (accuracy) – raw hidden camera footage unavailable – decline to determine

Orders
Section 16(1) – costs to the complainants $8,740

This headnote does not form part of the decision. 

Broadcast

[1]  An item on Fair Go, broadcast on TV One at 7.30pm on Wednesday 15 September 2010, reported on a national sales drive by a company, Wenatex. One of the presenters, Alison Mau, introduced the item, saying:

You might have got one of these in the mail recently. The company that’s sending them is on a national sales drive judging by the mail we’re getting. It’s a voucher for a free meal and a gift. All you have to do is attend a seminar with a company called Wenatex Events. You might end up paying nine grand for that free dinner. It’s actually a three hour, high pressure sales pitch for a super expensive bed, apparently capable of miracles. [Our reporter] investigates.

[2]  The reporter explained that, “We’d heard of hard sell tactics employed by Wenatex and of concerns investigated by Consumer magazine,” and so Fair Go had sent two actors along to one of Wenatex’s sales evenings. A representative from Consumer magazine was shown saying that Consumer had “some serious problems with Wenatex”, and that it was “most concerned about their selling methods”.

[3]  Hidden camera footage obtained by the actors was shown, accompanied by voiceovers from the reporter. The reporter said that “Wenatex’s promotional video shows the dangers of broken sleep... affecting your work... and leading to serious domestic issues.” She went on to say, “More than just a bed for Wenatex’s 61-year-old sales consultant. More like a wonder miracle cure.” The female sales consultant at the seminar had the following exchange with one of Fair Go’s actors:

Woman:    [referring to male sales consultant] ...he actually has a bed. He was in front of wheelchair.
                Now you can see him here, no wheelchair, no operation.

Actor:       He was in a wheelchair? Wow.

Woman:    [Ya], and we started to sleep on that... everything gone. Because I will show you why.

[4]  The reporter then paraphrased the saleswoman’s explanation, stating, “The consultant’s sales patter goes into the harmful toxins in our beds, dead skin cells in your mattress, and a raft of other ailments that can be healed by buying one of their beds. It can even save you thousands in medical bills.” The sales consultant was shown outlining the cost of various operations.

[5]  The item then considered what happened when Wenatex tried to make a sale, with the reporter stating that “the pressure is laid on thick”. She said, “when our actors ask if they can take away the sales contract and sleep on a decision, their request is refused”. The saleswoman was shown saying, “It’s not that I don’t want to give you but it’s official document you know?” The reporter went on to say, “Our actors don’t want to make a final decision but the consultants push on, wanting them to fill out the paperwork first and get back with an answer the following day.”

[6]  Back in the Fair Go studio, one of the presenters Kevin Milne stated, “We’re not suggesting there’s anything wrong with Wenatex mattresses. What we’re questioning is their sales techniques and the cost – they do seem very expensive when compared with beds in retail stores.”

[7]  The reporter was then shown interviewing the CEO for Wenatex in Australia and New Zealand. With regard to the sales consultant’s claims that her colleague had previously been in a wheelchair, and the sales tactics they used, the reporter and the CEO had the following exchange:

Reporter:    One of the most jaw-dropping moments in the two and a half hour sales presentation was the
                 claims that the 61-year-old sales consultant used to be in a wheelchair before he started
                 sleeping on a Wenatex bed and now without an operation, without anything, but purely by
                 sleeping on this bed he was now able to walk. Is that Wenatex sales policy?

CEO:          No, it is not. And like I say I have not seen the material and therefore I will reserve my
                 judgement on that until I see it. But if that statement has been made we will deal with that
                 very severely. Sleeping in our bed, it’s not a drug, it’s not a miracle, it’s a bed.

Reporter:     The sales consultant denies having made that claim?

CEO:           Well he has, he has to me, but I’ve only had a telephone conversation with him. It is most
                  likely that he will lose his agency. That’s as simple as that. Because we do not allow people
                  to make statements which, you know, they simply make up themselves. The person in
                  question has already admitted to me that he was never in a wheelchair.

Reporter:     And is it commission based...?

CEO:           Yes it is. It is totally commission based. And you know we spoke about this earlier on...
                  when you’re working on a reward system like this it does get people you know probably into
                  areas where they shouldn’t be.

Reporter:     There was a lot of pressure for them to fill the form out, right to the very end, and then
                  confirm it with a phone call the next day. Acceptable or not, do you think?

CEO:           Not acceptable. High pressure tactics are not wanted, and are certainly not needed. I do
                  know these people in question, you know their English is not particularly good, and the
                  expressions that they use may not be what they should be.

[8]  The CEO then explained that Wenatex had offered refunds to anyone not happy with the bed they purchased.

[9]  Back in the studio, Mr Milne stated, “Well you can’t be fairer than that. And we should clarify that it was the woman who claimed that her male colleague made the miracle recovery, not the man himself. Wenatex say as a result of our story they’ve reviewed their policy of not letting customers take away the contract for consideration, and they’ll make copies available on their website and for people who attend their presentations.”

[10]  Ms Mau outlined some tips for handling “the hard sell”. At the conclusion of the item, another presenter stated, “And as you saw in the interview, Wenatex have promised to refund anyone who feels they were pressured into buying one of their beds. If you’re having a hard time getting the money back, let us know.”

Complaint

[11]  CT and HC, the sales consultants shown in the item, made a formal complaint to Television New Zealand Ltd, the broadcaster, alleging that the item breached broadcasting standards. They argued that the hidden camera footage was manipulated in a way that made them look dishonest, and misrepresented their business practices. With regard to HC’s claim that CT had previously been in a wheelchair, they said, “In fact what we had said was that: my husband had worked with people on wheelchairs and that work included lifting people [which] caused [him] to hurt his back, and that sleeping on a Wenatex mattress had helped him.” The complainants maintained that, as a result of the programme, their contracts as Wenatex agents had been terminated, which had a devastating effect on them. They requested a copy of the hidden camera footage in its entirety.

Standards

[12]  TVNZ assessed the complaint under Standards 3, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice. Guidelines 6b and 6c and privacy principle 3(a) of the Authority’s privacy principles are also relevant. These provide:

Standard 3 Privacy

Broadcasters should maintain standards consistent with the privacy of the individual.

Privacy principle 3(a)

It is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion. The intrusion must be highly offensive to an objective reasonable person.

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 fairly with any person or organisation taking part or referred to.

Guidelines

6b   Broadcasters should exercise care in editing programme material to ensure that the extracts used are not a distortion of the original event or the overall views expressed.

6c   Except as justified in the public interest:

• Contributors and participants should be informed of the nature of their participation;
• Programme makers should not obtain information or gather pictures through misrepresentation.

Broadcaster's Response to the Complainant

[13]  TVNZ confirmed that the unedited hidden camera footage had been destroyed, in accordance with its usual policy which was to erase raw footage seven days after it had been broadcast.

[14]  Looking at Standard 3, the broadcaster said it must first decide whether the person whose privacy was allegedly interfered with was identifiable in the broadcast. It did not consider that the complainants were identifiable, noting that the programme makers took care to protect their identities by blurring their faces. Further, they were not named in the programme, TVNZ said.

[15]  The broadcaster nevertheless went on to consider whether any private facts were disclosed about the complainants. It maintained that “nothing in the footage concerning [the complainants] could be considered to be private facts and that none of the facts revealed would be considered highly offensive to a reasonable person”.

[16]  TVNZ also argued that there was “public interest in exposing the sorts of sales techniques filmed by Fair Go” (privacy principle 8).

[17]  Accordingly, TVNZ declined to uphold the complaint under Standard 3.

[18]  With regard to Standard 5, TVNZ noted that the complainants had only cited one alleged inaccuracy, with respect to whether it was suggested at the sales seminar that HC’s colleague no longer needed a wheelchair after sleeping in a Wenatex bed. It pointed out that in the footage, one of the actors could be heard specifically asking, “He was in a wheelchair?”, and that HC was clearly audible in her response that, “Yes and we started to sleep on that, everything gone, because I will show you why”. TVNZ maintained that the editing of this footage was not “manipulated”.

[19]  The broadcaster concluded that the item was not inaccurate or misleading and declined to uphold the Standard 5 complaint.

[20]  Turning to consider fairness, TVNZ said that it was satisfied that there was sufficient public interest in the issues raised in the item to amount to a defence to the Standard 6 complaint, and to justify “the extreme measure of undertaking covert filming”. TVNZ said that it did not undertake covert filming unless there was no other way to obtain vital information. It said that the editorial guidelines for its news and current affairs department were that the covert filming must be in the public interest, that the material was indispensable and unobtainable by more open means, or that there was “a prima facie case that the event to be recorded is antisocial”. It considered that all three criteria were satisfied in this case, and that the filming had been approved by its head of news and current affairs.

[21]  The broadcaster again disagreed that the footage had been manipulated. It considered that the focus of the item was the high pressure sales tactics used in the seminar, and that it was therefore acceptable to include footage of some of the “incredible claims” being made by the salespeople about the product they were attempting to sell. TVNZ also noted that the Wenatex CEO had specifically stated in his interview that “sleeping on our bed, it’s not a drug, it’s not a miracle. It’s a bed.”

[22]  TVNZ maintained that Fair Go was a consumer advocacy programme which aimed to advise consumers about potential pitfalls in transactions. On this occasion, the programme endeavoured to expose high pressure “hard sell” tactics “that even the owner of the company agreed were not acceptable”. It reiterated its view that the public interest in exposing these techniques was “a sufficient reason and defence for the screening of the footage”.

[23]  The broadcaster concluded that, as the complainants were not identified, there was no unfairness to them. Nor was there any unfairness in the way the item was edited or presented, it said.

[24]  Accordingly, TVNZ declined to uphold the Standard 6 complaint.

Referral to the Authority

[25]  Dissatisfied with the broadcaster’s response, HC and CT referred their complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989. They maintained that the programme breached Standards 3, 5 and 6.

[26]  With regard to privacy, the complainants maintained that, while their images were not included in the item, they were identifiable in their community through their distinct accents. They noted that buyers, seminar attendees, friends and relatives had identified them from the item.

[27]  Considering accuracy and the claims surrounding the wheelchair, the complainants maintained that:

...at the sales seminar... [CT] told the attendees as a result of driving a van for disabled people for many years that he suffered back pains which made it difficult to stand, sit and sleep. [He] was medically advised that he may require back surgery or face being in a wheelchair. It was then explained to the attendees that after using the Wenatex mattress (among other things) his back improved and he has not ended up in a wheelchair. [He] has confirmed that he has never been in a wheelchair.

As a result of the editing of the footage the story left the viewer with the inaccurate and misleading impression that by using a Wenatex mattress [CT] (or a person in a similar situation) would no longer require a wheelchair.

[28]  The complainants contended that, when HC said, “he was in front of wheelchair”, what she meant was that CT was “facing” the possibility of having back surgery or at worst ending up in a wheelchair. They also disagreed that HC had responded “yes” to the actor seeking clarification, arguing that in fact she said “ya” which was “a mere confirmation of a statement rather than a specific answer”. They maintained that her comments were in no way intended to be taken to mean that as a result of using a Wenatex mattress CT or anyone else no longer needed a wheelchair.

[29]  The complainants therefore considered that TVNZ had failed to make reasonable efforts to ensure that the item was accurate and not misleading, “given that English is [our] second language... which would have been abundantly clear to the actor”, and also given that the wheelchair comments were “highly relevant and important for the ‘hard sell’ angle Fair Go were pursuing”. They accepted that Fair Go had contacted the Wenatex CEO for clarification, but considered that they should have been contacted directly.

[30]  Turning to consider fairness, the complainants referred to guideline 6b to Standard 6 which requires broadcasters to exercise care in editing programme material to ensure extracts used are not a distortion of the original event or the overall views expressed. They said they were “very surprised that TVNZ’s normal practice is to erase unused footage approximately seven days after the broadcasting of programmes like Fair Go, given the inherent ability of such programming to be highly prejudicial and damaging to both commercial interests and individual reputations”. As a result of this practice, the complainants were of the view they had been unable to make complete arguments relating to fairness.

[31]  In support of their complaint, the complainants attached letters from other viewers who considered the story to be misleading and in breach of broadcasting standards. They maintained that they had suffered significant financial loss as a result of the programme, because their contracts with Wenatex had been terminated and they were now unemployed. Further, they had suffered humiliation and emotional distress, they said, so they considered it appropriate for the Authority to make an award of compensation.

Broadcaster’s Response to the Authority

[32]  TVNZ maintained that the complainants were not identifiable in the item, as their faces were blurred and their names were not disclosed. It noted that they were filmed in the conference room of a motel “where they were seeking members of the public to join them”, and therefore considered that they had no interest in solitude or seclusion, and that the room did not contain any identifying personal features and was not associated with their private lives. TVNZ reiterated its view that it was in the public interest to show the footage, noting that other consumer agencies had serious questions about the “hard sell” techniques employed in the sales pitch. Fair Go used hidden cameras to see if reports of the techniques were accurate, it said, because the footage could not have been obtained any other way, and the footage supported the concerns raised about the sales tactics.

[33]  With regard to accuracy, the broadcaster maintained that, “even given generous allowance for ‘difficulties with English as a second language’”, the programme had not misinterpreted HC’s comments. The particular words said by her were clear and were broadcast unedited, including her clarification for the actor, it said. TVNZ considered that “The programme let [HC’s] words speak for themselves.”

[34]  TVNZ argued that the “hard sell” message in the item was “based on the entire experience of the two sales people speaking to a receptive audience who are given a free dinner and are listening to claims about what the mattress can do”. It noted that the seminar lasted several hours, and that the complainants had plenty of time in the course of the seminar to qualify their comments about the wheelchair. Further, TVNZ considered that the complainants’ recollections of what they had said at the seminar with regard to the wheelchair were inconsistent in their original complaint and their referral.

[35]  Finally, considering fairness, TVNZ noted that the complainants had not disputed HC’s words as shown in the footage, but rather had suggested that she intended them to have a different meaning. It therefore maintained that the footage was not a distortion of the actual event. TVNZ also noted that the Wenatex CEO had presented the complainants’ position in his interview, saying that CT denied claiming that he used to be in a wheelchair, and that the complainants’ English was not very good.

[36]  With regard to the raw footage obtained at the seminar, TVNZ argued that broadcasters were required to retain a copy of the original broadcast for consideration by the Authority, but there was no obligation to keep other unused footage. It maintained that “The destruction (rather than storage) of personal information (such as footage obtained by undercover cameras) is in keeping with the expectations of the Privacy Act. Such footage is routinely recycled. TVNZ’s practice of recycling tapes is standard for the industry.”

Complainant’s Final Comment

[37]  With regard to privacy, the complainants maintained that they were identifiable in the broadcast due to their unique accents and their association with Wenatex.

[38]  In relation to accuracy, the complainants argued that HC’s remark “he was in front of a wheelchair” “clearly did not mean CT had been in a wheelchair and had TVNZ taken the necessary care to ensure the accuracy of the statement... this would have become apparent”. It noted TVNZ’s argument that the complainants had “plenty of time in the course of the seminar to qualify the comments”, and contended that the onus of ensuring accuracy rested with the broadcaster and not with them. They said, “In any event, [HC] had no reason to believe that her statement needed qualifying as the statement had the meaning for which we have already set out”.

[39]  The complainants noted the Wenatex CEO’s comments in the programme that CT had “admitted” he had never been in a wheelchair, and maintained that “this only confirms the intended meaning that CT was facing the possibility of being in a wheelchair. This does not in any way support the inferences TVNZ are seeking to draw”. They considered that the CEO’s remarks that English was their second language supported their position, and pointed out that the CEO had recognised that the “expressions that they use may not be what they should be”. They noted that the reporter had not asked the CEO what he thought may have been meant by HC’s statement.

[40]  The complainants stated that they were “surprised” that it was allegedly industry practice to delete un-broadcast footage before the timeframe for making a complaint had elapsed. They contended that the Authority could not fairly determine a complaint relating to guideline 6b without considering what was not broadcast as compared to what was broadcast.

Authority’s Request for Further Information from the Complainants

[41]  The Authority asked the complainants to clarify, with regard to the “wheelchair” segment of the footage, whether the statements were made to all of the attendees at the seminar, including Fair Go’s actors, and when the alleged statements relating to CT’s previous work were made in relation to HC’s “he was in front of wheelchair” comment.

[42]  The complainants responded:

In relation to the dialogue concerning [CT’s] previous employment whereby he was working with disabled people in wheelchairs for 14 years, and as a result had suffered a back injury. This statement occurred during the promotional dinner with the two actors and was raised by [HC] while [CT] was absent from the room. Therefore, the statements were made to all attendees, as the only attendees of the seminar were the actors.

In relation to the timing of the “in front of a wheelchair” statement, our clients’ recollection is that this statement occurred immediately following the conversation concerning [CT’s] previous work with disabled persons in wheelchairs. At this time, [CT] returned to the room and explained the back injuries he suffered. Following this, [HC] went onto state that [CT] was “in front of a wheelchair”.

Further, at this time, one of the actors who didn’t eat the promotional dinner (as she allegedly had a stomach bug), left the room for some minutes. On the actor’s return, [HC] continued with her presentation about the mattresses, and it is at this time that the actor asked if [CT] was in a wheelchair. Due to the destruction of the raw footage, we are unsure of what editing occurred. However, as previously submitted, [HC’s] answer “yaa” was made based on her understanding that the actor was simply confirming that [CT] was “in front of a wheelchair”. [HC] also thinks that it is possible her answer may have been connected with the part of the presentation she was giving at the time, and in fact has nothing to do with the wheelchair segment.

[43]  The complainants reiterated their view that TVNZ’s practice of deleting the raw footage undermined the ability of the Authority to determine complaints fairly and accurately.

Broadcaster’s Final Comment

[44]  TVNZ said that it had confirmed with the Fair Go actors that “they cannot recall any mention of disabled people or work with disabled people at the time the ‘he was in front of a wheelchair’ comment was said or indeed at any time. The actor questioning CT found his comment so outlandish that she had to ask again. She has stated that she would have remembered any reference to disabled people in that context, but he [CT] still stuck to his story”, TVNZ said.

[45]  The broadcaster therefore maintained that the complainants had not discussed [CT’s] previous work during the seminar. It said that, “There was certainly no suggestion that the comment ‘he was in front of a wheelchair’ meant that he was working with people in wheelchairs. The comment related to his own health,” it said. It considered that “the recorded works speak for themselves”. TVNZ argued that “there is no dispute from the complainants that they did in fact say ‘he was in front of a wheelchair’. There is some dispute as to the meaning of this comment, but there is no suggestion that the complainants did not say this”. It therefore maintained that seeing the raw footage would not assist with the determination of the complaint, as “the footage that is in dispute is before the Authority”.

[46]  With regard to privacy, TVNZ maintained that using a hidden camera was the only way Fair Go could obtain footage of the alleged “high pressure sales techniques”, and that it was in the public interest to screen the footage. In any event, TVNZ did not consider that the complainants were identifiable, that any private information was revealed, or that the complainants had an interest in solitude or seclusion.

[47]  Looking at fairness, and the issues relating to the raw footage, the broadcaster argued that:

Formal complaints in regard to fairness are routinely decided by the Authority solely in regard to the footage that was screened. To suggest that broadcasters should keep all footage that was taken in relation to items (even though it is not broadcast) is impracticable given the amount of footage that is routinely not used for broadcast and would place an unnecessarily high financial burden on broadcasters. Tapes are re-used because they are expensive. This is why it is industry practice to re-use tapes. We reiterate that the footage was recycled in the normal course of business in accordance with industry practice. TVNZ cannot be criticised for this. The footage had been recycled before any request or complaint had been lodged.

Authority’s Request for Further Submissions from the Broadcaster

[48]  The Authority requested further submissions from TVNZ, specifically on the issue of whether or not the complainants were given an opportunity to comment on the adverse allegations made against them in the programme.

[49]  TVNZ assumed that the “adverse allegations” referred to “the wheelchair claim” discussed in the programme. It said that it strongly disagreed that the complainants were not given an opportunity to respond to the wheelchair claim, or any of the other claims made regarding their sales techniques, based on the following three points:

• A detailed response, including denials from CT, was provided on the complainants’ behalf by Wenatex.
• Clarification was sought from HC at the time the claim was made, and the programme let her claim, and her immediate clarification, speak for itself.
• The complainants were not identified in the programme.

[50]  TVNZ maintained that the wheelchair claim was “fully responded to” in the item by Wenatex’s CEO when he said:

It is not [Wenatex sales policy]. ...I have not seen the material and therefore I will reserve my judgement on that until I see it. But if that statement has been made, we will deal with that very severely. Sleeping on our bed is not a drug, it is not a miracle, it is a bed.

[Reporter: The sales consultant denies having made that claim?]

He has. He has to me. But I have only had a telephone conversation with him. It is most likely that he will lose his agency. It’s as simple as that. Because we do not allow people to make statements which they simply make up themselves. The person concerned has admitted to me that he was never in a wheelchair.

[51]  TVNZ argued that the CEO said that CT had denied the wheelchair claim was made and said that he had never been in a wheelchair, as well as saying that the complainants’ English was “not particularly good”, which it noted was the argument put forward by the complainants.

[52]  The broadcaster maintained that the complainants’ position was more than adequately presented by the CEO in the item. It considered that it was “entirely appropriate and proper for the allegations to be put to the company itself and for the company to respond, given that they all related to the product and to the conduct of the complainants in their capacity as sales consultants for the company”. It said that, “Any suggestion that a chief executive cannot answer for their employees would be unfair and flies in the face of accepted journalistic practice.” It also emphasised that the complainants’ employment as sales agents for Wenatex was terminated following an investigation by Wenatex, rather than as a result of the broadcast. TVNZ considered that the Authority would be wrong to accept the complainants’ explanation over the video record and Wenatex’s own investigation.

[53]  Further, the broadcaster maintained that HC had been asked to clarify her meaning regarding the wheelchair claim at the time she made it, and her clarification was shown in the programme. It therefore considered that, “There is no obligation or logic for the programme to then give the complainants further opportunity to comment and respond to their own claim.” TVNZ maintained that given the video record and having sought clarification at the time, it had no reasonable grounds to question that the wheelchair claim had been made.

[54]  With regard to whether the complainants were identifiable, TVNZ reiterated its view that they were not, as their faces were blurred, they were not named, and they were filmed in a space which was not personal to them. It argued that it had met expectations with regard to identification, based on recent precedent from the Authority, namely, O’Connell and TVWorks,¹ in which the Authority found that the programme “could have screened without breaching broadcasting standards, simply by pixellating the faces of the [individuals] who were filmed”. TVNZ considered that this was a similar case, because some of the people filmed in the programme subject to complaint in O’Connell had accents, and their workplaces were named. It concluded that, as the complainants were not identifiable, it was not possible for the programme to be unfair to them.

[55]  The broadcaster submitted that, if the Authority were to find that “there was a requirement for comment from these anonymous employees as well as the firm which is being scrutinised then this requirement goes well beyond anything that has been found previously”.

Complainants’ Response to Broadcaster’s Further Submissions

[56]  The complainants maintained that they were not given an adequate opportunity to respond to the “wheelchair claim”, and that their position was not adequately presented by the Wenatex CEO. They reiterated their view that HC’s statement “in front of a wheelchair” clearly did not mean that CT had been in a wheelchair.

[57]  With regard to the CEO’s comments, the complainants argued that the fact the CEO said that they denied that the wheelchair claim had been made, and that CT had admitted that he had never been in a wheelchair, was “not at all surprising or inconsistent” with their position. To the contrary, they said, “it only goes to corroborate the complainants’ position as to the true meaning and inferences to be drawn from the ‘wheelchair claim’”. Similarly, they considered that the CEO’s comment that their English was “not particularly good” also corroborated and strengthened their position.

[58]  The complainants also noted that the CEO had stated in his interview that “I have not seen the material and therefore I will reserve my judgement on that until I see it,” and argued that it was clear that, not only was he not at the presentation, but none of them had seen the footage at the time he was interviewed, so the CEO was not in a position to adequately put forward the complainants’ position.

[59]  In response to TVNZ’s argument that it was adequate to obtain comment from a CEO with regard to the actions of their employees, the complainants noted that they were not employees of Wenatex, but independent contractors. In these circumstances, they considered that the broadcaster was required, in the interests of fairness, to put its allegations to both them and Wenatex. The complainants contended that, “given the prejudicial nature of such programming”, it was the broadcaster’s obligation, not the complainants’, to ensure that the broadcast was fair.

[60]  The complainants disputed that their contracts had been terminated following an investigation by Wenatex. They maintained that, “In a recorded telephone discussion between the complainants and [the Wenatex CEO] following the screening of the Fair Go programme, [the CEO] doubted the correctness of Fair Go’s ‘wheelchair claim’ and considered that he had to release them as sales agents by the mere fact of the damage caused by the Fair Go programme.” In fact, they said, not only had the programme caused the loss of their jobs, but they also understood that Wenatex had closed down its New Zealand operation as a result of the programme. The complainants maintained that they had been sales agents for Wenatex for three years and were regarded as some of its top agents. They also noted that Wenatex’s sales manager had often attended their presentations and “never at any stage took issue with the manner in which [they] conducted themselves”.

[61]  With regard to identification, the complainants reiterated their view that they were identifiable due to their accents and their association with Wenatex. They submitted that pixellation was only one method of concealing their identities, and that in this case, given their other unique characteristics (namely, their accents), further measures were necessary, for example masking their voices. In relation to the previous decision cited by TVNZ, the complainants noted that the Authority did not specifically address the individuals’ accents in that case.

Authority's Determination

[62]  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.

Our Overview

[63]  The essential point in the Fair Go broadcast was that the contract sales people employed by Wenatex used high pressure sales tactics and that those tactics included the making of some extravagant claims and the adopting of some questionable tactics.

[64]  The sales process was in the context of a so called seminar. Prospective buyers were identified through a database and were then invited to the seminar where a meal was provided. There was no cost to the prospective buyers. Those who attended then took part in a session lasting some three hours. In the course of this time as well as the meal being provided, a gift was given to each participant and the participants were educated about the benefits that come from having a Wenatex bed. The hidden camera showed one of the presenters making the point that Wenatex was not in the mattress business but rather was in the education business. 

[65]  The sales pitch appears to have been focused on the health and personal welfare benefits which were said to accrue from sleeping on a Wenatex mattress. There were depictions of the human spinal column and there were references to the problems which can come in life through lack of adequate sleep and rest. The typical cost of particular orthopaedic surgery operations was given and there was an implication that these costs could be avoided by the purchase and use of a Wenatex bed.

[66]  There was a statement made by the woman presenter about her husband’s health condition and that it was relieved by the use of a Wenatex bed. We accept that there was some ambiguity in the statement brought about by the use of English language by the presenters. On one interpretation the statement was that the male presenter had the prospect of having to use a wheelchair but avoided this by using a Wenatex bed. On another, perhaps less available interpretation, the statement was that the male presenter had been using a wheelchair but through sleeping on a Wenatex bed had been able to regain his mobility to the extent that he no longer needed to use a wheelchair. The theme of the message, whichever interpretation is adopted, was the same but obviously the second interpretation is at a higher level of incredibility. The statement about the wheelchair needs to be seen in a context where there was a recurrent message that there were health benefits of a marked kind available from the use of the beds.

[67]  There were other statements which were confirmatory of the theme that significant health benefits were available from the use of the beds. When the actor participant indicated to the male presenter that she was not going to make a purchase the response was to the effect that she was not looking after her life nor alleviating her problems. He said, “It’s your life, your problems... you’ll cope with them” meaning that the decision not to buy the bed was incompatible with responsible self care and welfare. Another recorded comment was to the effect that participants needed to make a choice between their own health and welfare or their money. 

[68]  There were other approaches of a kind which sometimes arise in these sorts of situations. There was a statement that prices are going up implying that haste was needed. The giving of meals and gifts obviously establishes a sense of obligation on the part of participants. There was the invitation to make a commitment without any immediate payment being required and there was the refusal to allow contract documents to be taken away for further consideration.

[69]  In an overall sense this was a sales pitch where a number of pressure type techniques were used in an endeavour to achieve sales. We do not categorise this sales process in this way for pejorative purposes but for descriptive purposes and in order to establish the backdrop to the complaints. 

[70]  The complainants are the presenters and sales agents of Wenatex and they complained that the programme was unfair, it breached their privacy and it was inaccurate.

Standard 6 (fairness)

[71]  Standard 6 states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. Guideline 6c specifically contemplates that the fairness standard will apply where people “take part” or are “referred to” in a programme without their knowledge. We consider that HC and CT both took part and were referred to in the programme.

Editing of programme material

[72]  The complainants maintained that guideline 6b was breached, which states that broadcasters should exercise care in editing programme material to ensure that the extracts used are not a distortion of the original event or the overall views expressed. As outlined above, the complainants requested a copy of the raw footage from the seminar, and TVNZ has informed them that the footage was destroyed within seven days of the broadcast in accordance with their standard practice.

[73]  We agree with the complainants that, without the raw footage, we are not in a position to determine whether the way the material was edited was fair. While we agree that the destruction of this footage circumvents the Authority’s ability to determine complaints of this nature, we note that section 30 of the Broadcasting Act 1989 allows the Authority to make rules only in relation to the retention of “recordings of programmes broadcast”. Accordingly, we are unable to require broadcasters to retain other recordings, including field tapes.

Opportunity to comment

[74]  A secondary element of unfairness, which was raised more explicitly in the referral by the complainants than in their original complaint, is that the broadcaster gave the complainants no opportunity to comment on the adverse statements made about them in the broadcast. This included the segment containing HC’s comment that “[CT] was in front of a wheelchair”. They have argued that HC did not claim that CT used to be in a wheelchair before using a Wenatex mattress, but in fact was saying that his previous work with disabled people had resulted in him “facing the possibility of being in a wheelchair”.

[75]  In this case the broadcaster approached the Wenatex CEO for comment, and an interview with him formed part of the programme. The Wenatex CEO made the point that he had not seen “the material” presumably meaning the tapes of the seminar. He also said that he had only spoken to one of the complainants by telephone about the issues. It was put by the broadcaster to the Wenatex CEO that a claim had been made at the seminar by the presenters that the male presenter had been in a wheelchair but no longer needed a wheelchair on account of the use of the beds. The CEO was disapproving of this statement and stated that CT “has already admitted to me that he was never in a wheelchair” and that he would likely lose his job.

[76]  The CEO was trying to distance the company from the alleged behaviour of the complainants. The result was that the programme presented the complainants as having made what was an extravagant claim when the claim may not have been at that level. The broadcaster has not given the people against whom the adverse comments were made any opportunity to refute them. 

[77]  In the application of the rules of fairness it is usually the case that somebody about whom something adverse is to be said should be given an opportunity to comment.  The gravity of the unfairness if this opportunity is not given will vary according to the particular circumstances of the case. 

[78]  In this case it is clear that the complainants were advancing a strong linkage between personal medical and welfare benefits and the use of the bed. They were not given the opportunity to say that they had not made the extreme statement about the wheelchair that had been attributed to them. They accept that they had claimed that the use of the bed had avoided the likelihood of the male presenter having to use a wheelchair. There has, in our opinion, been some unfairness to the complainants in their not having been given the opportunity to comment. This unfairness needs however to be looked at in the overall context which we have endeavoured to describe above.

Conclusion on Fairness

[79]  We have reached the conclusion that the broadcaster failed to give the complainants an opportunity to respond to the adverse comments about them, and therefore the complainants were given no opportunity to put forward their perspectives. Rather, they were treated as being people who were to be spoken about and referred to in an adverse way but without having any legitimate entitlement to protect themselves. We expect that it would have been very easy for the broadcaster, after having spoken with the Wenatex CEO and after having filmed what he was saying, to go to the complainants and get their views. This was not done. There is something fundamentally unfair about a person being condemned in his or her absence and without even knowing that their reputation and conduct are at issue. 

[80]  Having reached this conclusion, we must consider whether to uphold the complaint as a breach of Standard 6. In Commerce Commission and TVWorks Ltd,² the Authority determined that upholding a complaint under Standard 6 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 6 in the following terms:

One of the purposes of the fairness standard is to protect individuals and organisations from broadcasts which provide an unfairly negative representation of their character or conduct. Programme participants and people referred to in broadcasts have the right to expect that broadcasters will deal with them justly and fairly, so that unwarranted harm is not caused to their reputation and dignity.

[81]  We acknowledge that there was a public interest in determining whether the two sales agents were employing hard-sell tactics and making outrageous claims about the effectiveness of the Wenatex product. However, a finding that Standard 6 was breached would not restrict the broadcaster’s ability to expose such behaviour. Rather, it would ensure that, when a broadcaster makes potentially damaging allegations about individuals – particularly in circumstances where there is any ambiguity or confusion – those individuals are given an opportunity to comment.

[82]  In this respect, upholding the complaint clearly promotes the objective of Standard 6, and places a justified and reasonable limit on TVNZ’s freedom of expression. Accordingly, we uphold the complaint that Fair Go breached Standard 6.

Standard 3 (privacy)

Identification

[83]  When the Authority considers a privacy complaint, it must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. In Pacifica Shipping and CanWest TVWorks Ltd, the Authority stated that in order for an individual’s privacy to be breached, that person must be identifiable beyond those people, such as family and close friends, who would reasonably be expected to know about the matter dealt with in the broadcast.³

[84]  In this case, we must consider whether HC and CT would have been identifiable to anyone who did not know of the allegations outlined in the broadcast; namely, that they had been accused of hard-sell tactics and making implausible claims about Wenatex beds.

[85]  The broadcaster in its presentation of the programme had taken some steps to avoid the identity of the Wenatex presenters who are now the complainants, being disclosed. The use of hidden cameras meant that the camera views were from unusual angles and the depiction of what happened at the seminar was limited by the inability to openly record the events. The broadcaster in the programme blurred the faces of the complainants and their identities were not therefore able to be determined from facial shots.

[86]  With regard to CT, we note that he was only briefly shown in the footage, and that his voice was also only briefly broadcast. His face was blurred, and his clothing was not distinctive. In these circumstances, we consider that, although his association with Wenatex was disclosed, he would not have been identifiable beyond close family and friends. Accordingly, we do not consider that CT’s privacy was breached.

[87]  With regard to HC, we consider that, although her face was blurred, the combination of the extensive recordings of her distinctive accent, full length shots showing her body shape, clothing, and hand gestures, and the disclosure of her occupation as a sales agent for Wenatex, meant that she could have been identified by some people other than her close family and friends, who would not have already known of the allegations made in the programme.

[88]  Accordingly, we conclude that HC was identifiable for the purposes of the privacy standard.

Interest in solitude or seclusion

[89]  In our view, privacy principle 3 is most relevant on this occasion. This states that it is inconsistent with an individual’s privacy to allow the public disclosure of material obtained by intentionally interfering, in the nature of prying, with that individual’s interest in solitude or seclusion. The intrusion must be highly offensive to an objective reasonable person.

[90]  We must first consider whether HC had an “interest in solitude or seclusion”.

[91]  The Concise Oxford Dictionary defines solitude as “the state of being alone”. We note that HC was accompanied by CT and Fair Go’s two actors at the time that she was filmed, and we therefore find that she had no expectation of being alone at the seminar and therefore she did not have an interest in solitude.

[92]  Seclusion is a broader concept, defined as “a state of screening or shutting off from outside access or public view”, or a “zone of sensory or physical privacy” which extends to a situation where the complainant is accompanied (CanWest TVWorks Ltd v XY⁴).

[93]  We note that on this occasion, the sales seminar took place in a hired conference room at a motel where HC could not have controlled access to the room. Any person who wished to hear Wenatex’s sales pitch could have attended the seminar, and the content of the seminar was not of a sensitive or private nature. There is no indication that HC’s sales pitch or behaviour would have altered had there been a greater number of attendees. This was, in effect, a “public” sales pitch on behalf of the company.

[94]  In these circumstances, we find that HC did not have an interest in seclusion while at the sales seminar. Therefore no breach of HC’s privacy occurred by the broadcast of the hidden camera footage.

Public interest

[95]  Although we have already found that HC did not have an interest in solitude or seclusion, and therefore that no breach of her privacy occurred, we think it is appropriate to consider whether the public interest justified the use of, and broadcast of footage from, a hidden camera.

[96]  “Public interest” is defined as being of legitimate concern to the public. We note that Fair Go pursued the story following allegations that Wenatex sales agents were employing high pressure sales techniques, which had caused concern for Consumer magazine. We accept that on this occasion, hidden camera was the only legitimate way to obtain information about the techniques, and that it was in the public interest to show the aspects of Wenatex’s sales which were causing concern, for example refusing to let customers take copies of the sales documents.

[97]  Accordingly, even if HC’s privacy had been breached, we find that the public interest defence applies on this occasion.

Standard 5 (accuracy)

[98]  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.

[99]  The complainants’ primary argument under accuracy was that the footage from the seminar had been edited in a way that was misleading. As noted above, we are unable to determine this point without the raw footage. Accordingly, we decline to determine the Standard 5 complaint.

Name Suppression

[100]  Having upheld the complaint under Standard 6, and bearing in mind that the complainants were not named in the broadcast, we consider that it is appropriate in all the circumstances to remove the complainants’ names from this decision.

For the above reasons the Authority upholds the complaint that the broadcast by Television New Zealand Ltd of an item on Fair Go on 15 September 2010 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

[101]  Having upheld part of the complaint, we may make orders under sections 13 and 16 of the Broadcasting Act 1989. We invited submissions on orders from the parties.

Submissions on Orders

Complainants’ submissions on orders 

[102]  The complainants submitted that TVNZ should be ordered to broadcast a statement summarising the upheld aspects of the decision, and protecting their identities.

[103]  The complainants stated that their total legal costs incurred were $26,220, and submitted that they should be awarded two-thirds of that amount, being $17,480. They noted that the complaint required numerous and detailed submissions, and that, given English was their second language, the complainants would have had great difficulty in advancing their complaint without legal representation. The complainants maintained that the broadcast had caused them “irreparable personal and commercial damage”, as it resulted in them losing their sales contracts with Wenatex.

[104]  The complainants submitted that the “fundamental nature of the breach” in circumstances where the broadcast was “personally and commercially prejudicial” to them warranted an order of costs to the Crown between $2,500 and $3,500.

Broadcaster’s submissions on orders

[105]  TVNZ maintained that Fair Go believed that the complainants were not identifiable in the programme, and that it did not intend to identify them. It considered that the complainants were aware their conduct was in question prior to the broadcast, because the Wenatex CEO had spoken to them before his interview. The broadcaster argued that, “This was not a case of one person’s word against another – the programme had video evidence of the sales techniques adopted through the covert filming. It acted in good faith in reliance on what that evidence showed. It was then primarily an issue of the company responding to the techniques used. This was broadcast in the programme.”

[106]  TVNZ was of the view that the complainants’ legal costs were “disproportionately high” given that the complaint was “relatively simple” and the complaints process was designed to be manageable for lay people without legal representation.

[107]  For these reasons, the broadcaster concluded that the publication of the decision would be a sufficient penalty and that no orders were warranted.

Authority’s Decision on Orders

[108]  Having considered the parties’ submissions on orders, we have reached the view that ordering a broadcast statement summarising our decision is not appropriate on this occasion. In making this decision, we have taken into account the fact that only one aspect of the complaint has been upheld, and we consider that this aspect will be corrected by the publication of our decision. Further, we are of the view that, as the complainants were not named in the programme, and therefore could not be named in the statement, it would only have the effect of re-publicising the allegations against them, rather than providing any redress.

[109]  Costs to the Crown are usually imposed to mark a serious departure from broadcasting standards. On this occasion, we accept that the breach of Standard 6 was the result of an oversight, rather than any deliberate action on the part of Fair Go or TVNZ. TVNZ believed that the complainants were not identifiable, and that therefore the programme could not be unfair to them. Given these circumstances, we do not consider that an order of costs to the Crown would be appropriate in this instance.

[110]  With regard to legal costs, the Authority’s policy is that costs awards for complainants whose complaints have been upheld will usually be in the range of one-third of costs reasonably incurred. This amount may be adjusted upwards or downwards depending on the circumstances.

[111]  On this occasion, we are satisfied that the complainants’ legal costs relating to the broadcasting standards complaint, amounting to $26,220, were reasonable.

[112]  The Authority’s policy on Costs Awards⁵ states that the Authority will consider adjusting awards up, to a sum greater than one-third of reasonable costs, in a number of circumstances. Taking into account the fact that we have upheld only one aspect of the complaint, and that TVNZ maintains the breach was not deliberate, we consider that an award of $8,740 is appropriate, being one-third of costs reasonably incurred.

Order

Pursuant to section 16(1) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $8,740 within one month of the date of this decision.

The orders for costs shall be enforceable in the Wellington District Court.

Signed for and on behalf of the Authority

Peter Radich
Chair
8 July 2011

Appendix

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

1    HC and CT’s formal complaint – 29 September 2010

2   TVNZ’s response to the complaint – 1 November 2010

3   The complainants’ referral to the Authority, with attachments – 29 November 2010

4   TVNZ’s response to the Authority – 10 February 2011

5   The complainants’ final comment – 28 February 2011

6   The complainants’ response to the Authority’s request for further information – 2 March 2011

7   TVNZ’s response – 2 March 2011

8   TVNZ’s response to the Authority’s request for further submissions – 3 May 2011

9   The complainants’ response to TVNZ’s further submissions – 10 May 2011

10  The complainants’ submissions on orders – 2 June 2011

11  TVNZ’s submissions on orders – 14 June 2011

¹Decision No. 2007-067

²Decision No. 2008-014

³Decision No. 2005-026

⁴[2008] NZAR 1 PDF78.95 KB

⁵See http://www.bsa.govt.nz/advisory-opinion-on-costs-awards/