BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
One News – Rodney Hide MP – "scam buster" – spoke at seminar in Fiji – affidavit that his presence gave investors confidence to invest – investment was a scam – inaccurate – unbalanced – unfair

Findings
S.4(1)(d) and Standard 4 – reasonable opportunities given – no uphold

Standard 5 – not unfair – no uphold

Standard 6 – inaccuracies (1) different use of the term "family"; (2) not a "self-proclaimed scam buster"; (3) affidavit not dated that day – uphold on these three points – no other inaccuracies

No Order

This headnote does not form part of the decision.

Summary

[1] An affidavit, which recorded that Rodney Hide MP’s presence as a speaker at an investment seminar in Fiji had given a man and his family the confidence to invest, was reported in an item broadcast on One News on 15 May 2002. It was also reported that the scheme turned out to be a scam. One News is screened daily on TV One between 6.00–7.00pm.

[2] Rodney Hide complained to Television New Zealand Ltd, the broadcaster, that the item was unbalanced, inaccurate and unfair. He said he had never endorsed any investment scheme anywhere.

[3] In response, TVNZ advised that the item was a follow-up to an ongoing story in which Mr Hide had "unwittingly" been used to lend credibility to the seminar, and it declined to uphold any aspect of the complaint.

[4] Dissatisfied both with TVNZ’s decision and its complaints-handling process, Mr Hide referred those matters to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority upholds the complaint in respect of three inaccuracies. It declines to uphold the other aspects of the accuracy complaint and the balance and fairness aspects of the complaint.

Decision

[5] The members of the Authority have viewed a video of the programme complained about and have read the correspondence which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[6] One News is broadcast by TVNZ on TV One each evening between 6.00–7.00pm. The following is a transcript of an item broadcast on 15 May 2002:

Presenter:    A family that’s lost nearly half a million dollars in a bad investment is tonight
                    blaming a self-proclaimed scam busting MP. They say they poured money into
                    the scheme that turned out to be a scam after hearing Rodney Hide speak at a
                    Fiji investment seminar three years ago. Political reporter Robyn Janes has
                    more:

Janes:          ACT’s scam busting MP Rodney Hide under attack.

Clayton Cosgrove MP: (speaking in Parliament):
                     Why did he do nothing. Why did he not warn ordinary New Zealanders,
                     the great scam buster sir.

Janes:          Clayton Cosgrove attempted to table an affidavit from an unidentified man
                    who attended a Fiji investment seminar in 1999. Rodney Hide spoke at the
                    seminar, the scheme turned bad, kiwi investors losing up to ten million
                    dollars. The affidavit obtained by One News says five months later the man
                    invested sixty thousand dollars and persuaded his family to invest another
                    four hundred thousand. They’ve since lost it all. He says "all of us kiwis knew
                    Rodney Hide to be an MP and knew that he had a name of a scam buster
                    and as a straight shooter and straight talker. His support of the conference
                    gave us confidence to proceed to invest." But Rodney Hide said he never
                    endorsed the conference.

Rodney Hide MP (speaking in Parliament):
                     Is that I have never endorsed or promoted any investment scheme, here or
                    overseas sir, the aaah, seminar was not about promoting any scheme and
                    that was on the basis on which I agreed to speak.

Janes:          A Parliamentary Select Committee is looking into fraudulent investment
                    schemes. Winston Peters wanting to know why Mr Hide didn’t realise this
                    one was a scam.

Winston Peters MP (at the Select Committee):
                    Wouldn’t someone, who ahh, you know was a highly trained economist,
                    the only economist in Parliament pick this up.

David Bradshaw, Serious Fraud Office (at the Select Committee):
                    Anybody looking at the sorts of returns that have been offered, um, would
                    have to ask some serious questions about how that was going to operate.

Janes:          Rodney Hide claims the Select Committee’s inquiry is an attempt to
                    embarrass him. Robyn Janes, One News.

The Complaint

[7] Rodney Hide complained to TVNZ, the broadcaster, that the item breached the broadcasting standards relating to balance, accuracy and fairness

[8] Mr Hide recalled that he had been attacked periodically in Parliament for a speech he had given to a seminar in Fiji in January 1999. He said that on 15 May this year he had been approached by a reporter who said that she had an affidavit from a person who had invested in a scheme which had turned out to be a scam. Mr Hide said that they had had several conversations and he was told that the essential parts in the affidavit were that he (Mr Hide) had endorsed the scheme, and that, because of that endorsement, the deponent and his family had invested some hundreds of thousands of dollars which had been lost.

[9] Mr Hide stated that he had told the reporter that he had never endorsed any investment scheme. Further, the reporter refused to tell him who had made the affidavit, but that the affidavit would be tabled at 5.45pm. The reporter had requested an interview immediately afterwards for the 6.00pm broadcast of One News.

[10] The complainant said that, despite being advised by both his lawyer and himself that the story was false, TVNZ made it clear that it intended to proceed. The letter from the lawyer referred to an article run that afternoon in the Evening Post which the lawyer pointed out was "grossly defamatory" and unbalanced.

[11] Mr Hide explained that Mr Cosgrove was denied leave to table the affidavit later in the afternoon as the name of the affidavit writer had been blacked out. Nevertheless, One News broadcast the item recorded in para [6] above.

[12] The presenter’s introduction contained two errors, Mr Hide wrote. First, he had never proclaimed himself to be a "scam buster", and second, he had subsequently ascertained that the family did not blame him for losing their money.

[13] There were a number of errors in the substantial comment made by the reporter, Mr Hide continued. He wrote:

It confuses a seminar with an investment scheme. It implies that I am somehow implicated in investors losing ten million dollars. I am not. It says that I supported the conference. I did not. I spoke at a conference or seminar. It says the man five months later invested $60,000. He did not. I do not know where the ten million dollar figure comes from.

[14] Mr Hide considered that the extract used from a speech he had made in Parliament again failed to distinguish between speaking at a conference and endorsing an investment scheme, and that confusion was apparent in the other clips used.

[15] As a result of the item, Mr Hide said he had been dogged by other media and verbally attacked while walking along the street.

[16] Mr Hide stressed that the speech he had given in Fiji was similar to one he had made on many occasions, and a tape and transcript had been tabled in Parliament. The Securities Commission, he noted, had received no complaints about him, and he added:

I have never been approached by anyone suggesting that I have endorsed any investment scheme or that I have been in any way responsible for losing anyone any money as a result of my speech in Fiji. I still haven’t.

[17] Mr Hide recorded that he had managed to track down the writer of the affidavit and that they had had two substantial telephone conversations which he had considered sensible to record. Including a transcript of the both conversations, Mr Hide argued that they showed that the deponent did not blame him. During the second conversation, Mr Hide recorded, the deponent advised him that he had never spoken to a television reporter, adding, "everything I have said is in the document".

[18] In summarising these points, Mr Hide wrote:

There are problems with the affidavit. First of all it isn’t true. [The deponent] claims, "We saw a high profile politician endorsing the investment". The high profile politician is clearly me. I have never endorsed any investment scheme. What [the deponent] has claimed in his affidavit is untrue. He has never seen me endorse an investment, as his own affidavit makes clear. He says in his affidavit that the only discussion of the investment scheme that took place in Fiji was a private one in which he was told it was not to be discussed. His affidavit does not explain what even he thinks that he invested in.

[19] Mr Hide then provided a number of details about the process by which the deponent agreed to invest in the scheme, after he had travelled to Fiji to attend the seminar. This process, Mr Hide emphasised, did not involve his personal endorsement of any investment scheme.

[20] Turning to the complaint, Mr Hide maintained, first, that he was not given a reasonable opportunity to respond to a controversial issue of public importance, as required by s.4(1)(d) of the Broadcasting Act and repeated in Standard 4 of the Free-to-Air Television Code of Broadcasting Practice. Furthermore, the reference to a scam involving $10 million was neither balanced nor impartial as required by Guideline 4a of the Television Code.

[21] As for the requirement in Standard 5 for factual accuracy, Mr Hide alleged the following errors:

The family have told me they do not blame me for their loss as claimed by TV One. They don’t actually blame me in the affidavit.

I have never proclaimed myself to be a "scam-buster" as claimed by TV One. TV One News never identified the "scheme that turned bad".

TV One News can’t justify the $10 million supposedly lost in the scheme.

[The deponent] did not invest $60,000 five months later; he invested $40,000 according to his affidavit.

My speaking at the seminar in no way could be interpreted as giving anyone confidence to invest in any scheme as claimed by TV One.

[22] He also considered that Guideline 5e to Standard 5 was breached as TVNZ had not ensured that its news source was reliable.

[23] As for the fairness requirement in Standard 6, Mr Hide maintained that he had been treated unfairly as he had not been allowed to see the affidavit or know who was making the claims. Moreover, the use of the clip of Winston Peters MP was edited to confuse the seminar with the investment scheme and that had caused a distortion in breach of Guideline 6a.

[24] In conclusion, Mr Hide wrote:

TV One News has run an inaccurate and biased news report that I have been involved somehow in a $10 million scam in which a family invested $460,000 because of my support and who now blame me for their loss. The story isn’t true.

The Standards

[25] TVNZ assessed the complaint under the Standards nominated by the complainant. Section 4(1)(d) of the Broadcasting Act 1989 provides:

4(1) Every broadcaster is responsible for maintaining in its programmes and their presentation, standards which are consistent with –

(d) 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.

[26] The relevant Standards of the Television Code (and the Guidelines referred to) read:

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.

Guideline

4a  Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.

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.

Guideline

5e  Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.

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.

Guideline

6a  Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.

The Broadcaster’s Response to the Complainant

[27] TVNZ began its reply to Mr Hide by summarising the item complained about:

The item reported that a then unidentified person had produced an affidavit alleging that he and his family had lost close to half a million dollars after investing in a scheme which was promoted at a seminar which you addressed in Fiji in January, 1999. The item also described the political debate which arose from the claim, including extracts from Mr Clayton Cosgrove’s remarks as he tried to table the affidavit in Parliament, extracts from your statement concerning your involvement in the seminar, and some extracts from a select committee hearing at which the matter was raised. The item concluded by reporting that you considered the select committee hearings to be an attempt to embarrass you.

[28] TVNZ added:

Before beginning its point-by-point examination of your letter, the [complaints] committee noted that its role was to judge this news item on the basis of what was known on the evening of 15^th May. Essentially the story was a report on a political development in Parliament brought about by the affidavit which Mr Cosgrove produced and attempted to table in the House. One News also acquired a copy of the affidavit and so was able to verify that what your political opponents claimed was in the document was in fact present.

[29] It also recorded that the matter was part of an ongoing political story based on an article in Consumer in March 2002 headlined "Busting a $10 Million Scam". An item broadcast on One News on 12 March 2002 based on the Consumer article reported that Mr Hide had "unwittingly" been used to lend credibility to a seminar at which the investment scheme was being promoted. TVNZ also referred to an item broadcast on 28 May which included extracts from a personal statement Mr Hide had made to the House, which included Mr Hide’s comment that the deponent did not blame Mr Hide for his lost investment, followed by a comment from TVNZ that the writer stood by what he had written in the affidavit.

[30] In view of these claims, TVNZ reported that it had examined closely the events leading to the item broadcast on 15 May.

[31] First, it noted that the affidavit had been released to its reporter under a strict embargo, which was not an uncommon practice and, despite two requests, the embargo had not been lifted. Nevertheless, TVNZ added, by the time the reporter had approached Mr Hide, news of the content of the affidavit had been released in the Evening Post.

[32] Second, TVNZ did not accept that the reporter had told Mr Hide that the affidavit would be tabled at 5.45pm. Rather, she had advised him that it was to occur at 4.45pm. TVNZ noted that both the Broadcasting Act and Standard 4 required that "reasonable opportunities" were given for comment. Failure to comment, it added, did not amount to a breach.

[33] Turning to the specific aspects of the complaint, TVNZ acknowledged that Mr Hide had not described himself as a "scam buster". Nevertheless, while a small inaccuracy, it did not consider that it amounted to a breach as Mr Hide’s actions in Parliament were those of a "scam-buster".

[34] As for the complaint that the family did not blame Mr Hide for the loss of the money, TVNZ cited extracts from paras 14, 16, 28 and 30 from the affidavit, where the deponent said:

14. All of us Kiwis knew Rodney Hide to be an MP and knew that he had a name as a scam buster and as a straight shooter and straight talker. We knew he was not afraid to attack people if he thought they were doing wrong or doing wrong by others.

16. Myself and Mona discussed Rodney Hide’s speech and thought that with a Member of Parliament and as he said, a Member of the Government, that his support of this conference helped satisfy us that the conference and the opportunities being provided to us would be fair and firm.

28. I advised him [my cousin] that Rodney Hide, a Member of Parliament, had spoken at our conference and that his support of the conference gave us confidence to proceed to invest.

30. We saw a high profile politician endorsing the investment. We thought there were significant returns available and we were overcome by greed.

[35] TVNZ stated:

The [complaints] committee believed that on the basis of what was known on the 15^th May it was not inaccurate to say that the family was holding you responsible for their loss. The committee notes that the introduction ascribes the view to the family. It is not a statement of fact by TVNZ. The first sentence uses the phrase ‘A family … is tonight blaming a self-proclaimed scam-busting MP’ making it clear that it was the family that was making the accusation not TVNZ. The second sentence begins with the phrase ‘they say they poured money …’ again making it clear that it is the family being quoted, not TVNZ making a statement of fact.

[36] TVNZ then dealt with the issue of whether the deponent was standing by his affidavit. It argued:

As our committee understands it, our Political Editor first spoke to [the deponent] after you had done so. [The deponent] apparently told our Political Editor that you had called and had said words to him to the effect of ‘I understand you told One News that you lost five hundred thousand dollars’, to which [the deponent] replied, ‘no that’s not true’. [The deponent] then told our Political Editor that you said, ‘I understand you told One News you blame me for it’ to which [the deponent] says he replied, ‘no, that’s not true, that’s a lie.’ It seemed to our Political Editor and to the committee that what [the deponent] was denying here was not that he was changing the view contained in a sworn affidavit, but that he had spoken to One News.

[37] TVNZ denied that the item had confused a seminar with an investment scheme. The Finance and Expenditure Select Committee, it noted, from which some of the extracts which were broadcast had been taken, had been investigating the link between investment schemes and seminars.

[38] As for the reference to the figure of $10 million, TVNZ pointed out that this was the figure noted in Consumer which had also commented on the investment scheme/seminar relationship.

[39] On the next point, that the item said that Mr Hide supported the conference, TVNZ wrote:

Undisputed is the fact that you did attend the seminar organised by persons involved in what turned out to be an investment scam. As both Consumer magazine and the affidavit attest it was your presence at the seminar which lent it credibility.

The item said, ‘but Rodney Hide says he never endorsed the conference’. That was accompanied by pictures of you in the House confirming the basis on which you agreed to speak, including specifically that the seminar was not about promoting any scheme. Your side of the story was accurately and fairly presented.

[40] As for the comment that the deponent invested $60,000, TVNZ said he said that he had lost $60,000 to the scam.

[41] TVNZ accepted that Mr Hide was not aware of the high returns offered by the scheme, adding that the item had not said that he had. TVNZ did not accept that the deponent of the affidavit was unreliable. It noted that Mr Hide thought so, and had broadcast Mr Hide’s statement in Parliament (on 28 May) that he believed the deponent had recanted. However, as the deponent had twice told One News that he stood by his affidavit, TVNZ noted that it reported the claims and left viewers to decide the issue. A transcript of an item on One News on 28 May 2002 records:

Presenter:      Act MP Rodney Hide has hit back at allegations from Labour that he gave
                     investors the confidence to put money in a dodgy investment scheme.
                     Labour’s Clayton Cosgrove tabled an affidavit from an unnamed Waikato man
                     who claimed to have invested $60,000 in a scheme after hearing Rodney Hide
                     speak at a Fiji conference organised by its promoters. Mr Hide says he’s never
                     endorsed any investment scheme and he’s now spoken to the man himself.

Hide (in Parliament):  
                     I asked him directly. I said I was sorry he had lost money in the scheme. I
                     asked him if he blamed me or in any way held me responsible. He said no
                     and he said that he’d never said that – contrary to media reports and what
                     has been said in this House.

Presenter:     One News has tonight has spoken to the Waikato man who says he stands
                     by his affidavit.

[42] Turning to s.4(1)(d) of the Act, TVNZ contended that it had made reasonable efforts and that Mr Hide had been given reasonable opportunities to comment. It declined to uphold that aspect. Reviewing the processes by which material is released to reporters and documents are tabled in the House, TVNZ did not accept that it had acted partially.

[43] Reviewing the six specific inaccuracies alleged, TVNZ said that the clauses from the affidavit summarised above were sufficient for the item to say that the family was "blaming" Mr Hide. The other aspect of the complaint, that he had been told that the family did not blame him, was irrelevant, in TVNZ’s opinion, as it was a statement made after the programme had been broadcast. It again conceded that it was wrong to refer to Mr Hide as a "self-proclaimed" scam-buster, but repeated that it was a role which Mr Hide appeared to embrace with enthusiasm and success.

[44] As an aspect of the accuracy complaint, TVNZ noted Mr Hide’s contention that One News had never spoken to the deponent to check the accuracy of his story. TVNZ responded:

The committee noted that you had perhaps overlooked the point that the main point of the story was that an affidavit had surfaced that day which was relevant to a story that had been receiving media attention for the previous couple of months. It wasn’t simply a scribbled note or an informal letter to an MP, this was a sworn affidavit – with all that that implies.

There was no need to speak to [the deponent] at that point. He had set out his story in 30 very detailed clauses. The time to speak to [the deponent] would be if, as a consequence of this affidavit becoming public you or somebody else chose to challenge it. That TVNZ did. When you told the House that [the deponent] was denying that you influenced his decision to invest, TVNZ checked back with [the deponent] to discover whether he was repudiating his affidavit. He said he wasn’t, and that was added on the end of the story on 28^th May.

It was the committee’s conclusion that despite one or two phrases that could have been better put (always a risk in same-day news broadcasting) the item overall presented a truthful and accurate description of what the affidavit said and the state of the political debate at the time the item went to air. Standard 5 was found not to have been breached.

[45] As for the fairness requirement in Standard 6, TVNZ said the issues had been dealt with fairly, adding:

The committee did not accept that you were as ignorant of the issue as your comments might imply. It noted again that you had spoken to the Evening Post, and that you were fully aware of the issue that had been in the public arena since the publication of Consumer in March.

As detailed above, every effort was made to give you the opportunity to comment. When you felt unable to do so, the item made use of your comments in the House to ensure that your voice was heard.

[46] In conclusion, TVNZ declined in full to uphold the complaint.

The Referral to the Broadcasting Standards Authority

[47] When he referred his complaint to the Authority about "the offending news clip on 15 May 2002", Mr Hide attached, among other documents, a copy of the affidavit, the tape of transcript of two telephone conversations with the deponent of the affidavit, a tape and transcript of his speech in Fiji, the article in Consumer of March 2002, and a letter from broadcaster George Balani.

[48] Mr Hide repeated much of the material contained in his complaint to TVNZ, and elaborated on some details. In view of his inquiries, Mr Hide was forthright in the conclusion he reached.

[49] After listing the standards he contended had been contravened, Mr Hide argued that the affidavit was "false". He cited the paragraphs nominated by TVNZ and wrote:

I have never endorsed any investment scheme anywhere at any time, nor have I endorsed any conference. … Nothing that I have ever said or done could possibly have given anyone the confidence to invest in any particular investment. … I have never had a name as "scam buster". The key allegations that drove the One News story are false and the journalists concerned did nothing to verify them. The affidavit itself is fraught with inconsistencies and contradictions that should have clearly flagged to a professional that there was good reason to be cautious and suspicious.

[50] Mr Hide outlined the process which took place before the deponent invested his money, and questioned why the deponent, out of some 1300 people at the seminar, should have regarded him as "such a powerful influence" over his investment decision. Moreover, despite the claim, he said that the deponent had never approached him or had a complaint against him.

[51] Focusing on aspects of his telephone conversations with the deponent, Mr Hide reiterated that the affidavit was false, and alleged that TVNZ’s failure to check on the issue reliably was in breach of Guideline 5e.

[52] As for TVNZ’s contention that it was not necessary to check the veracity of the affidavit or the deponent’s motivation, Mr Hide described it as "preposterous" and "irresponsible". On the practice of reporting just claim and counter-claim and leaving it to viewers to decide the facts, Mr Hide said:

This is nonsense and contradicts the very essence of news reporting and journalism in which the facts are vigorously sought and presented in a balanced and informed way as clearly required by the broadcasting standards.

[53] In his conclusion on this matter, Mr Hide recorded:

TVNZ have produced excuses for failing to check and question the facts of the affidavit but none of these excuses overcomes the obligation upon them from Guideline 5e that they "must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable". One News did not take "all reasonable steps". In fact, they took no steps.

[54] Mr Hide described TVNZ’s offer to interview him about the affidavit, without letting him see it, as a "Clayton’s" choice, adding:

I could not provide the proper balance the story required, I could not provide my point of view, I could not correct obvious inaccuracies, and One News thereby treated me unfairly. All I knew was that there was an affidavit alleging that I had endorsed an investment scam. I did not know the name of the scheme that I had allegedly endorsed. I did not know to whom I had endorsed the scheme. I did not know how I was supposed to have endorsed the scheme. I did not know who was alleging that I had endorsed the scheme. All I could do was say that such a claim was preposterous. How could I possibly respond in an interview about a crucial series of allegations that I had not seen?

[55] Failure to provide the appropriate details, he said, meant that TVNZ had not complied with the requirements relating to making "reasonable efforts" to provide "reasonable opportunities" to comment on a significant issue.

[56] Referring to the one occasion on which he had produced an affidavit in Parliament, Mr Hide recalled that he had named the deponent because, if the writer of the affidavit on that occasion had wanted to be taken seriously, he had to be "prepared to stand up and to be counted".

[57] Mr Hide accepted that he might have been mistaken referring to 5.45pm, rather than 4.45pm, in the initial complaint. However, given the processes which occurred, he would have had at best 15 minutes to read and absorb a 30 paragraph legal document which made some serious allegations. However:

Of course, the affidavit was not tabled and I never got to see it before One News ran their story anyway which is in itself a breach of Broadcasting Standards.

[58] Considering the item which was screened, Mr Hide noted that it spoke of a family blaming him. However, Mr Hide pointed out, it was not the family but the writer. Mr Hide added that he had spoken to one family member who had invested, and had lost, $400,000 who not only did not blame him, but had no idea of the affidavit.

[59] Mr Hide repeated his complaint that the item "mischievously linked the seminar with the scheme in order to implicate him in the scam. He also reiterated his concern about the phrase "self-proclaimed" scam-buster, and the suggestion that the writer had invested $60,000, where the affidavit refers to an investment of $40,000. Moreover, he wrote:

One News presented the quotes from the affidavit out of context and significantly altered the meaning of [the writer’s] sworn statement.

[60] Mr Hide said that the use of the clips from Winston Peters and Mr Bradshaw’s reply were inaccurate. He said:

The clear implication that One News gave viewers was that I knew of the returns offered to [the deponent] but did not question them. I did not know of the returns being offered to [the deponent]. How could I have? I knew nothing of what he had been offered or had invested in. I still don’t.

[61] Quoting the transcript of the Finance and Expenditure Select Committee’s hearing from where the excerpts had been taken, Mr Hide said:

One News edited the Finance and Expenditure Committee exchange to distort the original discussion to make it appear as if the high returns had been shown to me when they hadn’t and when no one has ever alleged that they were.

[62] Moreover, Mr Hide complained:

One News in the graphic behind the presenter showed a head and shoulders picture of me which I have been advised has been "pixilated". The effect is to make my face shady and shadowy and therefore visually reinforce the news clip’s message that I had been involved in something shady, untoward and perhaps criminal.

[63] Turning to TVNZ’s "reasonable conclusion" that the family "blamed" him for their loss, Mr Hide said that TVNZ did not claim that it was accurate – rather it was "just not inaccurate". Mr Hide repeated that the claims was just those of the writer – not the family.

[64] Mr Hide said that TVNZ’s description of him as a "self-proclaimed scam-buster" was not a minor inaccuracy. "It drove the entire news item":

The statement "self-proclaimed scam-buster" was a deliberate, calculated inaccuracy designed to create maximum impact irrespective of the truth.

[65] Mr Hide also addressed TVNZ’s argument that there was no confusion between the seminar and investment scheme. Referring to the references to the "scheme" and the "seminar" in the transcript, Mr Hide stated:

It is true that I spoke at a seminar in Fiji. It is completely untrue that a scheme promoted at the seminar turned bad. The scheme, as [the deponent] clearly states in his affidavit, was promoted in New Zealand before [the deponent] attended the seminar. In addition, the only discussion that [the deponent] had about the alleged "investment scheme" was held privately and behind closed doors. No promotion took place at the seminar as the many attendees will happily swear under oath. TVNZ was wrong. It is certainly not spurious to recognise the distinction between speaking at a seminar and promoting an investment scheme. The latter involves a potentially criminal offence.

[66] Mr Hide noted again that the writer invested $40,000, not $60,000 in the scheme. In regard to TVNZ’s argument that it was reporting the contents of an affidavit which the item said had given the investor the confidence to invest, Mr Hide maintained:

It’s not good enough for One News to quote untrue statements from an affidavit and then defend themselves by saying it was not stated as a fact. The duty placed upon the broadcaster is one of accuracy.

[67] Mr Hide then commented about TVNZ’s complaints procedure, and insisted that it was not a "proper procedure" as required by s.5(a) of the Broadcasting Act 1989. Accordingly, he asked the Authority to investigate how TVNZ investigated complaints in general, and his in particular.

[68] In support of this claim, he referred to his telephone conversations with members of TVNZ’s Complaints Committee and the documentation supplied. The process, he said, was unsatisfactory.

[69] Reverting to the use of an affidavit, Mr Hide enclosed a letter from broadcaster and journalist George Balani "whose advice on the matter I sought". Mr Balani’s comments dealt mainly with the checks a professional journalist could be expected to make before using the contents of a contentious affidavit in a news item.

[70] These would include, Mr Balani opined, confirming that the affidavit was genuine, and then, given the tone and contents of the affidavit in question:

I would expect such a matter to be dealt with only by very senior staff. In my own media organisation, such a story would have to be cleared by me personally and I would have referred it legal advisors (sic).

[71] Having read the material, Mr Balani advised Mr Hide:

The reporter was fed the story by your political opponents and was persuaded by them that the affidavit somehow provided evidence that you were involved in a "scam".

If the affidavit had indeed provided such evidence, of course it would be appropriate and in the public interest for the story to be published. In the circumstances as outlined above, there are overwhelmingly powerful reasons why the story should not have been published in the form it was.

The use of digital distortion and graphic imaging on this occasion was in my view misleading and inappropriate.

The Broadcaster’s Response to the Authority

[72] TVNZ advised that there were a number of points in Mr Hide’s referral which, it said, "require rebuttal".

[73] In response to Mr Hide’s assertion that he had never endorsed an investment scheme, TVNZ said that the item showed him speaking in Parliament making that point. Nevertheless, TVNZ continued, the deponent in his affidavit stated that he had invested in the scheme offered to him at the seminar because Mr Hide’s presence at the conference "gave us confidence to invest". On the basis that a dictionary definition of "blame" was to "assign responsibility", TVNZ argued that the deponent was saying in his affidavit "that the presence of Mr Hide at the seminar was responsible for him making the decision to go ahead".

[74] TVNZ noted that while Mr Hide said that he had not been aware that the seminar was being used to promote an investment scheme, it argued that it was "well documented" that Investors International, the company running the seminar, was known to be doing so.

[75] TVNZ acknowledged that the affidavit accused Mr Hide of taking part in a "conspiracy to defraud". TVNZ said it had not used the "damning allegation" as there were "more explicit (and safer) extracts" which could be used.

[76] As for Mr Hide’s complaint that he had not been allowed to see the affidavit, TVNZ maintained that Mr Hide had also released documents to journalists under embargo.

[77] TVNZ denied that the item was inaccurate or unfair, observing that it "properly reflected" the affidavit produced. It wrote:

We have never suggested that Mr Hide knowingly became involved in a seminar at which a dodgy investment scheme was being promoted – but the fact that he attended the seminar in all innocence was in itself of particular interest because of his reputation as one who actively uncovers the sort of scheme that this seems to be.

[78] Turning to the aspect of the complaint which focused on its procedures for handling complaints, TVNZ questioned whether it was a broadcasting standards issue. However, it added, the procedure was unchanged since an audit by Hugh Rennie QC who had described it as robust. TVNZ wrote:

We welcome the Authority examining the decision reached by way of TVNZ’s procedure, but submit that the Authority has no jurisdiction in ruling on how that procedure should operate.

The Complainant’s Final Comment

[79] Noting that TVNZ had contested only five points in his detailed letter of referral, Mr Hide argued that the Authority had to accept the facts which were not disputed. Before dealing with each of disputed matters, Mr Hide summarised the news item which, he wrote:

claimed that a family blamed me for their losing nearly $500,000 in an investment scam;

implicated me in a scam in which New Zealanders lost "up to ten million dollars"; and,

implied that I knew of the "sorts of returns" being offered and that I should have asked "some serious questions".

[80] Mr Hide commented that the allegations that he was some way involved in a fraud were serious and "I am determined to hold TVNZ to account for their broadcast".

[81] Dealing first with the comment that he had never endorsed an investment scheme, Mr Hide said that TVNZ, in accepting that statement, was required to accept that the deponent was not reliable. However, he noted, TVNZ had based its story on an affidavit "without any independent check".

[82] Moreover, Mr Hide wrote, he did not accept that TVNZ had made his position clear. The way the item had been edited, he added, meant that his position was not clear.

[83] In response to TVNZ’s claim that the deponent said that his (Mr Hide’s) presence at the seminar was responsible for the deponent to make his investment decision, Mr Hide maintained that the deponent did not in fact state that. Quoting paragraphs 16, 28 and 30 of the affidavit, Mr Hide said:

I contest the veracity of [the deponent]’s affidavit but even accepting his sworn statement he nowhere "blames me" or "holds me responsible" for his decision to invest as TVNZ claim – he simply states that my "endorsing the investment" was just one of "several factors" that lead him to invest. TVNZ’s claim that, "We submit that in his affidavit [the deponent] is saying that the presence of Mr Hide at the seminar was responsible for him making the decision to go ahead" goes well beyond what [the deponent] states in his affidavit.

[84] Moreover, Mr Hide noted the consideration given by the deponent to the investment before attending the seminar, and the claim made on behalf of his cousin, and concluded:

TVNZ are making it up when they say I was responsible for [the deponent’s] decision to invest in the scheme.

[85] Mr Hide also pointed out that there was no evidence that the seminar was being used to promote an investment scheme. The investment scheme, as the deponent acknowledged, Mr Hide noted, was promoted "behind closed doors and in secret".

[86] Mr Hide then dealt with the deponent’s statement, which had not been included in the news item, that he had seen a high profile politician "endorsing the investment". Why, Mr Hide asked, if TVNZ suspected that aspect of the affidavit was not true, did it not suspect other claims. Moreover, he noted that he, unlike TVNZ, had checked with the deponent what he meant and had been told that he was neither blamed nor held responsible.

[87] TVNZ’s decision not to show him the affidavit was the next matter dealt with and Mr Hide began by pointing out that embargoes did not override the requirements contained in the broadcasting standards. Contrary to TVNZ’s suggestion, he added, he had imposed no embargoes when supplying material about Sovereign Yachts to TVNZ.

[88] As for his complaint that the story was inaccurate and unfair, Mr Hide said TVNZ, rather than rebutting the complaint, stated that it did not accept it. Further, rather than insisting that the "family" was blaming him, TVNZ now argued that one man’s decision to invest was linked to his presence at the seminar. Moreover, he noted, the bulk of the investment was made not by the deponent, but by his cousin.

[89] TVNZ, Mr Hide wrote, now claimed that the item was "largely correct", without acknowledging specifically which parts were correct or incorrect. He wrote:

TVNZ state that, "We have never suggested that Mr Hide knowingly became involved in a seminar at which a dodgy investment scheme was being promoted". But that’s precisely what One News did suggest with their inaccurate editing of the exchange between Mr Winston Peters and Mr David Bradshaw at the Finance and Expenditure meeting as my June 26 complaint makes plain.

[90] Mr Hide’s complaint about TVNZ’s procedures was the final matter dealt with. Citing s.21(1)(e)(iii) of the Broadcasting Act, Mr Hide asserted that the Authority had jurisdiction over a broadcaster’s complaints procedure. He again asked that the Authority investigate TVNZ’s complaints handling procedures, both generally and specifically in regard to his complaint.

[91] In conclusion, Mr Hide listed the broadcasting standards breached by the broadcast and sought an order requiring the broadcast by TVNZ of a correction and an apology.

[92] As a footnote, Mr Hide advised that he had obtained, with the Ombudsman’s and Privacy Commissioner’s assistance, the comment in TVNZ’s complaints records which had been deleted when supplied to him. The paragraph was written by TVNZ’s Political Editor, who reported:

In conclusion: I have every confidence in the practices, the processes and the level of fairness and balance exercised in covering this story. The issue of TV One News having it in for Mr Hide is one he has raised with me in the past and I have consistently rejected. What is consistent is that whenever we run a story that Mr Hide does not feel puts him in the best light he complains to this office. I accept that as a natural consequence of our job but will not stand by while he impugns the motives and standards of myself and my reporters.

[93] Mr Hide said the statement raised questions as to whether his complaint had been handled in a professional manner, and added that he had only complained once to the political editor. He gave details of the events relating to that complaint and noted that they had occurred one week before the broadcast currently complained about.

Further Correspondence

[94] At a preliminary consideration of the complaint, the Authority decided to ask Mr Hide whether the deponent was aware that Mr Hide was recording the telephone conversations between them. It also decided to obtain a copy of the article printed in the Evening Post on 15 May referred to in the correspondence.

[95] Mr Hide advised the Authority that the deponent was not aware of the recording, and expressed concern as to what weight would be given to the conversations in the circumstances. Mr Hide observed that he was pleased that he had recorded the conversations as he was able to rebut the allegations later made in Parliament that he had bullied the deponent.

[96] Insisting that the factual record of the conversation was not affected by the deponent’s awareness of the recording, Mr Hide wrote that the deponent made the following statements during the conversation:

denied stating that he held me responsible for him losing money;

denied stating that I had endorsed the investment scheme;

denied that I had influenced him to invest; and

declared his affidavit confidential to him.

[97] TVNZ was advised of the Authority’s request to Mr Hide, and wrote:

While we do not know the reason for this question we are anxious that this complaint be determined on the basis of what was broadcast on 15 May, and what was known at that time. It seems to us that Mr Hide’s conversation with [the deponent] was ‘after the event’ and should therefore have little relevance to programme standards which concern what has been broadcast and are couched in the context of ‘preparation and presentation’ of broadcast material.

Further Submissions

[98] TVNZ responded to Mr Hide’s final comment (summarised in paras. [79]–[93] above).

[99] It began by pointing out that the Authority’s task was to investigate and review TVNZ’s letter of 6 June, which contained TVNZ’s decision on Mr Hide’s complaint contained in his letter of 28 May. It pointed out that the Authority had acknowledged that "a referral is not an opportunity to introduce fresh material". Moreover, it said, although it had not commented specifically on every detail in Mr Hide’s subsequent letters, that did not mean that the details were not contested.

[100] Referring to the affidavit, TVNZ wrote:

We point out that before the broadcast on 15 May the bona fides of the affidavit were checked – that is it was established that the solicitor whose name appears as having witnessed the swearing of the document does exist and has an address and telephone number.

[101] It also stated:

Mr Hide refers at length to the veracity of the affidavit. We submit however that the affidavit by [the deponent] can never be proved to be true or false. When and why an individual may have made a decision to invest can never be proven. [The deponent] in his sworn affidavit plainly says Mr Hide’s ‘support of the conference gave us confidence to proceed to invest.’ That was worth reporting, as was Mr Hide’s denial in the House.

[102] TVNZ also pointed out that its role was to report the news as accurately and fairly as it could. It was not its role, it maintained, "to adjudicate in conflicting positions". It reported the viewpoints advanced by the deponent in his affidavit,and by Mr Hide in Parliament. It concluded:

Whether [the deponent] is now prepared to state that he does not blame Mr Hide or hold him responsible is irrelevant. The affidavit was certainly intended by readers of it to indicate otherwise.

[103] In his response, Mr Hide addressed the points made by TVNZ. He dealt first with TVNZ’s reply to the Authority’s request to Mr Hide as to whether the deponent was aware that Mr Hide was recording their telephone conversations.

[104] TVNZ, Mr Hide noted, had emphasised that the complaint about the broadcast on 15 May should be judged by the knowledge which was available that day. Pointing out that the item on 15 May reported the contents of an affidavit in which it was said that a family was blaming him for its loss of nearly half a million dollars, Mr Hide observed that TVNZ did not speak to the deponent before the broadcast. However, and observing that "I can understand TVNZ’s anxiety", Mr Hide said that the deponent had later told him "that he didn’t blame me". Mr Hide added:

On TVNZ’s reasoning, TVNZ can never be found wanting. All they need do is broadcast in ignorance. TVNZ could then defend their inaccurate broadcast because any investigation into the truth and basis of any broadcast by a complainant must perforce be undertaken after an offending broadcast. TVNZ could then dismiss the complaint as of "little relevance".

[105] Mr Hide stated that TVNZ’s failure to check the inferences in the affidavit was part of his complaint, describing TVNZ’s acceptance of information from political sources for political purposes as "irresponsible journalism".

[106] Repeating that part of his complaint was the fact that TVNZ did not allow him to see the affidavit, Mr Hide said that he had been deprived of the opportunity to check its contents with the deponent. TVNZ’s attitude that subsequent events were of "little relevance", Mr Hide wrote, amounted to a situation where a complaint could never be upheld where the broadcaster made a broadcast in "wilful ignorance". TVNZ’s claim on this point, he continued, had to be dismissed to maintain the integrity of journalism and the complaints process.

[107] Dealing further with this matter, Mr Hide observed that TVNZ’s Political Editor had spoken to the deponent after the broadcast and it was prepared to use that conversation in its argument. Nevertheless, Mr Hide said, his conversation with the deponent, as supported by the tape, now required the Authority to reject TVNZ’s claim, as the deponent had told him:

that he in fact did not blame me, that he did not hold me responsible, that he did not want me to apologise for anything, and that his affidavit was, in fact, confidential to him.

[108] Mr Hide then dealt with TVNZ’s argument that a complainant was not entitled to introduce new material when referring a complaint to the Authority.

[109] Mr Hide referred to s.10 of the Broadcasting Act which requires the Authority to have regard to all relevant submissions. He also cited two recent cases in the Auckland High Court (Hooker v TVNZ PDF1.09 MB AP 138/01, 13 June 2002, and TV3 v Holt PDF1.5 MB AP 147/01, 26 July 2002). As the standards raised in his original complaint remained the relevant standards, Mr Hide commented:

If TVNZ’s suggestion was to be followed, there would be no need for any process of making submissions to the Authority. The Authority could simply adjudicate on the original complaint and the broadcaster’s response.

[110] Mr Hide also noted that TVNZ did not specify what new material in the referral should not be considered by the Authority, and he argued that the referral had "fleshed out" his initial complaint as, by the time he referred his complaint to the Authority, he had considered the news item further and had identified further inaccuracies.

[111] The next matter Mr Hide dealt with was TVNZ’s point that just because it had not commented specifically on a matter in the letter which referred the complaint to the Authority, that did not mean that it was not contested. Mr Hide opined that his referral was "comprehensive, detailed and justified", and TVNZ’s failure to respond to specific points, he commented, took away his opportunity of knowing the grounds of objection, and his opportunity to respond.

[112] The next two points advanced by TVNZ, Mr Hide maintained, involved an attempted diversion from the issues raised in the complaint. He had not contested the bona fides of the lawyer who took the affidavit, and he had not suggested that TVNZ would broadcast the same report again. Rather, he had argued that TVNZ should have spoken to the deponent before broadcasting the item on 15 May.

[113] In response to TVNZ’s point that he had failed to recognise the role of One News to report the news accurately and fairly, Mr Hide emphasised:

My entire complaint is that One News failed to report the news accurately and fairly. It’s rich irony indeed for TVNZ now to claim that I appear to have failed to recognise that as the role of One News!

[114] Moving on to TVNZ’s contention that it was not its role to determine truth, Mr Hide pointed out that his complaint did not involve conflicting positions, but the broadcast of an allegation conflicting with the facts. The item said "A family that’s lost nearly half a million dollars in a bad investment is tonight blaming a self-proclaimed scam busting MP". That, Mr Hide wrote "simply isn’t true as I have shown". TVNZ had failed to meet what Mr Hide described as its "professional and statutory duties".

[115] Mr Hide then considered TVNZ’s point that, by including the clip of him saying that he had not endorsed the scheme, it did not mean that that it accepted that the affidavit was unreliable. Mr Hide argued that TVNZ appeared to agree that the affidavit was not 100% reliable, as it did not use the paragraph in the affidavit where the deponent stated that Mr Hide endorsed the investment. Accordingly, he repeated his contention that TVNZ was not prepared to accept all the deponent’s claims in the affidavit.

[116] TVNZ argued that it had simply reported both view points. However, Mr Hide wrote, the broadcast contained inaccuracies, and:

The problem is that the viewpoint driving the broadcast is factually wrong and One News never bothered to check it for accuracy.

[117] TVNZ had also argued that the affidavit could never be proved true or false as it could never be proved why an individual might have made a decision to invest. Mr Hide responded that this claim was "silly". To justify that remark, he pointed to para 30 of the affidavit where the deponent swore "we saw a high profile politician endorsing the investment. Mr Hide said:

That’s easily a testable statement. It’s a factual question whether or not I endorsed an investment. It’s a factual question whether or not [the deponent] and his wife saw me do so. I didn’t – and they didn’t.

[118] It was another testable proposition, Mr Hide wrote, as to whether the family blamed him. And:

Both [the deponent] and [his cousin] have told me that they don’t blame me for their loss.

[119] Mr Hide referred to TVNZ’s letter to him in response to his complaint when, pointing to paras 14, 16, 28 and 30 of the affidavit, it had maintained that it was "not inaccurate" to report that the family was blaming Mr Hide for the loss. Further, in its letter to the Authority, TVNZ said that the deponent stated that Mr Hide’s presence at the seminar "was responsible for him making the decision to go ahead".

[120] Mr Hide contested TVNZ’s conclusion as the deponent had said that he was keen to invest in the scheme before he went to Fiji. In response to the deponent’s statement about a high profile politician endorsing the scheme, Mr Hide pointed to the paragraphs where the deponent was told that by others at the conference that he was not to reveal the investment opportunities which were available to him. Mr Hide concluded on this point:

[The deponent’s] affidavit contains testable statements (that are false) and One News broadcast contained testable statements (that are false). His affidavit also contains empirical contradictions at least one of which must be false. TVNZ are wrong in their claim that "the affidavit by [the deponent] can never be proved to be true or false".

[121] TVNZ had said that the affidavit plainly made clear that Mr Hide’s support of the conference was a basis of the deponent’s confidence in the investment. TVNZ said the matter was worth reporting, as was Mr Hide’s denial. Mr Hide replied:

TVNZ are here having a bob each way. On the one hand, TVNZ claim that [the deponent’s] affidavit is just a string of untestable belief statements, but on the other it is worth reporting. TVNZ fail to explain why [the deponent’s] beliefs as to why he invested are newsworthy. If they can never be proved true or false, they have no factual basis. They are not news.

[122] Moreover, Mr Hide added, the deponent – not Mr Hide – had sold the scheme to his cousin and by assigning the responsibility onto him, TVNZ had taken the deponent’s statement out of context. That involved, Mr Hide wrote:

… TVNZ are simply inferring what [the deponent] intended with his affidavit. I suspect they never have found out why he swore an affidavit and once again are content with their own inference. After all, [the deponent] claimed to me that his affidavit was confidential to him. It’s not at all clear what his intentions were in signing the affidavit. TVNZ are simply making up what they think [the deponent] was intending any readers of his "confidential" affidavit to conclude.

[123] In finishing his submission, Mr Hide stated:

I respectfully recommend that the Authority uphold my complaint. The merit of my complaint is mirrored in the weaknesses of TVNZ defence. Their August 5 letters recommend that the Authority ignore what I discovered simply by talking to [the deponent] because One News didn’t speak to him and claim that the sworn affidavit from which they inferred their erroneous allegations can never be proved true or false. TVNZ’s defence is desperate and sad, as I trust I have shown.

[124] As a postscript, Mr Hide said he had identified a further inaccuracy in the item. The item’s introduction contained six inaccuracies, Mr Hide said. They were:

It wasn’t a family but [the deponent] making the allegation;

No one was blaming me – [the deponent] does not blame me in his affidavit;

The sum at issue was $40,000, not "nearly half a million dollars";

The family didn’t blame me "that night" – [the deponent’s] affidavit was sworn the Sunday before;

I have never self-proclaimed myself to be a scam buster; and

I am not a "scam busting" MP

The Authority’s Determination

Introduction

[125] In his initial complaint to TVNZ, Mr Hide acknowledged that the item broadcast on 15 May 2002 reported an ongoing political attack on him in view of a speech he had given at a seminar in Fiji in January 1999 (see paragraph [8]). The Authority records that it is aware of the background, but emphasises that its role is to determine Mr Hide’s complaint as to whether the item broadcast on One News on 15 May breached broadcasting standards.

The Affidavit

[126] According to TVNZ, the 15 May item arose because an MP in Parliament referred to an affidavit which dealt with Mr Hide’s presence at that seminar, and the influence of Mr Hide’s presence was said to have had on the deponent’s actions. The affidavit was later tabled in Parliament.

[127] Because of the importance of the affidavit to the item and Mr Hide’s substantial comments questioning its veracity, the Authority notes some points about the affidavit and affidavits in general. The Authority has noted Mr Balani’s views in discussing the role of an affidavit. An affidavit is a statement made by a deponent in which the deponent swears or affirms, usually before a lawyer, that the contents are true and correct. The affidavit format does not in itself validate the accuracy of the contents; rather, it requires the deponent to swear or affirm that the contents are believed to be correct. Although an affidavit is usually prepared for proceedings in Court, this affidavit was not related to any Court proceedings. The Authority notes that the deponent in this case swore before a solicitor an affidavit that contained a summary of events about how he, and members of his family, had invested $460,000 in a scheme which turned out to be a scam.

[128] The Authority notes that affidavits are sometimes referred to in news items, or elsewhere, as though they reinforce the credibility of a written statement. However, the Authority reiterates that making a statement in the form of an affidavit does not of itself guarantee veracity.

[129] In his complaint, Mr Hide questioned vigorously the veracity of the affidavit. He referred to an obvious error in the affidavit itself (para 30) and to his two telephone conversations with the deponent. He provided a tape and transcript of those conversations.

[130] In the final paragraph of the affidavit, the deponent swore:

There is no doubt that several factors lead us to invest and being duped. We were seduced into trusting people who we thought were advising us on solid investment. We saw a high profile politician endorsing the investment. We thought there were significant returns available and we were overcome by greed. At no time did anyone publicise to us or our families that this was a scam.

[131] Mr Hide focused on the sentence "We saw a high profile politician endorsing the scheme". Acknowledging that he was the politician referred to, he pointed out that the sentence contained a statement of fact which was incorrect. Moreover, he noted, TVNZ had not used that statement in the news item as it was also aware that it was wrong. Accordingly, as TVNZ was aware of one major inaccuracy, Mr Hide questioned how it could rely on any other statements in the affidavit.

[132] Noting also that TVNZ had not spoken to the deponent before using the affidavit as a source in the news item, Mr Hide said he had spoken to the deponent on two later occasions. The first conversation included the following exchange:

Hide:           It says you know, that I influenced you and that I endorsed the investment
                  scheme that you went into.

Deponent:  That’s not right. I didn’t say that. And that’s not in the affidavit.

[133] That exchange is discussed again during the conversations and, towards the end of the second conversation, the deponent states and repeats that he has nothing else to say as "it is all in the affidavit".

[134] The Authority has examined carefully the exchanges between Mr Hide and the deponent. It understands why Mr Hide believes that the deponent has retracted some of his comments, especially those dealing with blame. It is also aware that the exchange involved an articulate and confident politician and a person who appeared to be somewhat bewildered by Mr Hide’s questioning and whose confusion at times was easy to detect.

[135] As Mr Hide’s argument about the affidavit’s lack of veracity underlies much of his complaint, the Authority believes that it is appropriate to make a determination on the issue of veracity before dealing with the specific aspects of the complaint.

[136] It accepts that Mr Hide is the "high profile politician" referred to in paragraph 30 of the affidavit, and that at no time did he endorse the investment scheme in which the deponent lost his money. However, it also accepts that the deponent believed the account of the events he described elsewhere in the affidavit. He attempted to confirm his statements when he spoke to Mr Hide, and he did confirm them when later spoken to by TVNZ. Accordingly, the Authority concludes, the affidavit records, essentially correctly, the deponent’s account of the events.

Item on One News
[137] The Authority now turns to the item on One News on 15 May. A transcript of the item is included in paragraph [6].

[138] Before reviewing the contents of the item broadcast on 15 May and its accuracy, the Authority considers first the standards issues of balance and fairness raised by Mr Hide.

(i) Balance

[139] Mr Hide complained that the item was unbalanced as he had not been given a reasonable opportunity to respond. The Authority notes that while the time given to Mr Hide to prepare for a televised response to the affidavit after it was tabled might have been relatively brief, the issues were ones with which he was familiar. The affidavit had been made available to the Evening Post earlier and featured in an article published in the paper on 15 May. The Authority observes that Mr Hide had sufficient opportunity, after the publication of the Evening Post article, to instruct his solicitor to write to TVNZ about broadcasting the material from the affidavit on One News that evening. The Authority considers the opportunity given to Mr Hide by TVNZ meet the broadcasting standards requirements and did not contravene the balance requirement in Standard 4.

(ii) Fairness

[140] Mr Hide complained that the broadcast was unfair to him as, despite requests, a copy of the affidavit was not given to him to enable him to prepare a response, that he was not told the identity of the deponent, and the use of a clip from the Select Committee hearing that day suggested that he was aware of the investment scheme in which the deponent had lost money.

[141] The Authority accepts that it is not always necessary to give someone the source material provided a competent summary of that material is provided. Again, as Mr Hide was aware of the matters raised given the Evening Post item, the Authority does not uphold the aspects of the fairness complaint referring to the supplying of the affidavit or to supplying the deponent’s name.

[142] Parliament’s Finance and Expenditure Select Committee met on 15 May and the issue was "The Revenue Effects of Fraudulent Investment Schemes". Mr Hide was a member of the Committee, and David Bradshaw, Director of the Serious Fraud Office, was one of the witnesses. Winston Peters MP was another member of the Committee and Mr Hide provided the Authority with a transcript of the proceedings. The transcript records that, with minor editing, the extract broadcast contained the question asked by Mr Peters and Mr Bradshaw’s immediate response. The extract does not distort the exchange and the Authority considers that its inclusion in the item was not unfair to Mr Hide. The Authority finds that Standard 6 was not contravened.

(iii) Accuracy

[143] In his initial complaint Mr Hide complained about what he described as "a number of errors", in the 15 May item. They were:

• that he was implicated in a scheme in which investors lost ten million dollars;
•  the source of the ten million dollar figure was not given;
• that he supported the conference;
• that one man invested $60,000.

[144] The Authority does not uphold any of these alleged errors as a breach of the accuracy requirement in Standard 5 of the Code. It notes that the figure of $10 million was taken from an article entitled "Busting a $10 million Scam" in Consumer 412 (March 2002). The article referred to scams whereby New Zealanders were invited to expensive off-shore seminars. Outside the official presentations, the article added, investors were introduced to someone with a secret special offer which promised large returns and implied minimal risks. The article stated:

The scams are clever. To lend credibility, well-known people who have nothing to do with the scam are invited along as speakers. Economist Gareth Morgan and MP Rodney Hide both spoke at seminars in 1999.

[145] Later, the Consumer article included the comment, as a caption to a photograph of Mr Hide, that he had "unwittingly lent credibility to dodgy seminar organisations … ."

[146] In his affidavit, the deponent recorded that he and his family had lost $61,000, which was made up of $21,000 for him and his wife to attend a conference in Fiji, and a later investment of $40,000.

[147] The Authority notes that the news item included a clip of Mr Hide speaking in Parliament stating that he had never endorsed or promoted any investment scheme in New Zealand or overseas. The seminar he had spoken to, he added, did not involve promoting any scheme.

[148] In view of the material contained first in the Consumer article, second in the affidavit, and third in Mr Hide’s statement broadcast during the item, the Authority does not accept that the item was inaccurate on these four matters raised in paragraph [142].

[149] As a postscript to his final submission to the Authority, Mr Hide listed six alleged inaccuracies which he said had been raised in the correspondence. They were:

It wasn’t a family but [the deponent] making the allegation;

No one was blaming me – [the deponent] does not blame me in his affidavit;

The sum at issue was $40,000, not "nearly half a million dollars";

The family didn’t blame me "that night" – [the deponent’s] affidavit was sworn the Sunday before;

I have never self-proclaimed myself to be a scam buster; and

I am not a "scam busting" MP

[150] Paragraph 1 of affidavit starts "Myself and family have lost $60,000 to a scam…". The affidavit uses the pronoun "we" and refers to the deponent and his named partner who went to Fiji. It also records that they later decided to invest "the remaining $40,000 we had". The affidavit added that the deponent’s cousin, before he invested $400,000, spoke to the deponent who assured him "all was well" and that Mr Hide’s "support of the conference gave us confidence to invest".

[151] The Authority accepts that the comments about Mr Hide were made by the deponent and his wife. The comments were not necessarily the views of the cousin. However, because the wife was included, the Authority accepts that the item’s reference to family was not inaccurate when it referred to the deponent’s claims in the affidavit. The Authority also accepts that the item was not inaccurate in using the term "family" when referring to the total loss of nearly half a million dollars. It accepts that a cousin is "family" in this sense.

[152] The question of whether the deponent "blamed" Mr Hide is a core aspect of the complaint. Blame, according to the Concise Oxford Dictionary is "to fix the responsibility on". The Authority appreciates Mr Hide’s argument when he asked how could he be blamed for something which he did not know was happening. As he pointed out, he was not promoting an investment scheme and, as the investment scheme was promoted secretly, he was not aware that an investment scheme was being promoted behind closed doors at the conference at which he spoke.

[153] Mr Hide is first named by the deponent in his affidavit in paragraph 14 when, in describing the seminar in Fiji, he writes:

We found the speakers in the seminar to be generally boring, save for Rodney Hide and Dolf de Roos. In fact, Rodney got the most applause in regard to his speech. All of us Kiwis knew Rodney Hide to be an MP and even that he had a name as a "scam-buster" and a straight shooter and straight talker. We also knew he was not afraid to attack people if he thought they were doing wrong or doing wrong by others.

[154] Mr Hide is referred to again in paragraphs 15, 16, 17 and 28, and implicitly in paragraph 30 of the affidavit (see paragraph [130] of this determination). In paragraph 28 of the affidavit, the deponent is talking about his cousin and writes:

I advised him that Rodney Hide, a Member of Parliament had spoken at our conference and that his support of the conference gave us confidence to proceed to invest.

[155] The broadcast did not state that Mr Hide was the sole object of blame. In the affidavit, blame is also ascribed by the deponent to, among other things, their trusted advisers and their own greed. The Authority acknowledges that, in the item, blame could have been placed on other matters as well as, or instead of, on Mr Hide. However, as the affidavit did assign some responsibility on Mr Hide, the Authority does not accept that the broadcast was inaccurate or deceptive in not recording the other blameworthy issues.

[156] The broadcast reported that a family was blaming Mr Hide. Defining the family as the deponent and his partner, and taking into account the responsibility ascribed to Mr Hide for his speech at the conference and his perceived support, albeit unwittingly, for the concurrent investment opportunities offered to the participants, the Authority concludes that the item was not inaccurate to say that Mr Hide was being "blamed" by the family.

[157] Nevertheless, the item suggests that the "family" which lost nearly half a million dollars is the same "family" which was blaming Mr Hide. The Authority considers that while the wider family may have lost that sum, it was inaccurate for the broadcast to imply the wider family blamed Mr Hide. It considers that this aspect of the broadcast breached Standard 5.

[158] The Authority has dealt with the issue of the amount lost, and by whom it was lost, in paragraph [145]. It also agrees with Mr Hide that the item was inaccurate to suggest that the family was acting that evening. The affidavit was signed on 12 May. The broadcast was on 15 May. The implication in the item suggested immediacy in that the family had acted "tonight". The Authority considers this is inaccurate and in breach of Standard 5.

[159] TVNZ acknowledged that it was incorrect to describe Mr Hide as a "self-proclaimed" scam buster. Describing the point as a "small inaccuracy", TVNZ considered that it did not amount to a breach of the standard.

[160] The Authority disagrees with TVNZ. Because of the focus of the item, the Authority is of the opinion that it was important that any references to Mr Hide were accurate. It upholds the "self proclaimed" aspect as inaccurate and as a breach of Standard 5.

[161] Mr Hide denied that he was a "scam-busting MP". The Authority disagrees. While it might have been more precise to use the phrase "perk-buster", the Authority accepts the broadcaster’s argument that Mr Hide’s reputation is that of a "scam-busting MP". It declines to uphold that aspect.

Pixellation

[162] Mr Hide also complained that his image had been pixellated by TVNZ in some way to his disadvantage. Although the item used a graphic of Mr Hide which seemed darker than usual, the Authority was unable to see any pixellation. Accordingly, it declines to determine that aspect of the complaint.

The Complaints Process

[163] TVNZ’s complaints process featured as an aspect of the complaint. Mr Hide described the process as unsatisfactory and questioned whether TVNZ had a proper procedure as required by s.5(a) of the Broadcasting Act. While questioning whether it was a broadcasting standards issue, TVNZ described its process as robust and welcomed a review by the Authority if one was considered necessary.

[164] The Authority considers that it is appropriate to form an overall view of a broadcaster’s complaint process, but it does not have a statutory right to investigate the process as suggested in this complaint. Based on its extensive experience with TVNZ’s complaints process, the Authority agrees with the broadcaster when it describes its process as robust.

For the above reasons, the Authority upholds the complaint that aspects of the item broadcast by Television New Zealand Ltd on One News on 15 May 2002 were inaccurate and in breach of Standard 5 of the Free-to-Air Television Code of Broadcasting Practice.

It declines to uphold any other aspect of the complaint.

[165] Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. The Authority invited submissions from the parties.

[166] In his submission, Mr Hide maintained that the item would not have been broadcast had it not included the inaccuracies noted by the Authority. He considered that an order requiring the broadcast of a statement summarising the decision, along with an apology, was appropriate. Because of a concern that the statement might "re-ignite memories of the original" item, he asked that he be given a right of veto.

[167] He also asked that TVNZ be ordered to pay the costs of the legal advice he had obtained in the preparation of the complaint, amounting to $5,000.

[168] In its submission, TVNZ proposed that no orders be imposed. It made this submission on the basis that the balance and fairness aspects of the complaint had not been upheld, and that the Authority had upheld only three of ten aspects of the item which Mr Hide had claimed were inaccurate.

[169] TVNZ also wrote:

Our second observation is that because of the high profile Mr Hide enjoys there is a strong probability that the Authority’s decision on this complaint will receive widespread press publicity. When a complaint is upheld, albeit in part, we submit that newspaper coverage of the decision represents a substantial penalty in itself.

[170] TVNZ later drew the Authority’s attention to items in the National Business Review on 18 and 25 October, and in the New Zealand Herald on 22 October which reported that the Authority had upheld aspects of Mr Hide’s complaint. As a consequence, the Authority has modified its standard letter which accompanies the Decision in Part to the parties to make clear that the Decision in Part is not for publication.

[171] Having carefully considered the submissions made the parties, the Authority concludes that it is neither necessary nor appropriate to impose any order.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
7 November 2002

Appendix

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

1. Mr Hide’s Complaint to Television New Zealand Ltd – 28 May 2002
2. TVNZ’s Response to Mr Hide – 6 June 2002
3. Mr Hide’s Referral to the Broadcasting Standards Authority – 26 June 2002
4. TVNZ’s Response to the Authority – 15 July 2002
5. Mr Hide’s Final Comment – 25 July 2002
6. TVNZ’s Response to Mr Hide’s Final comment – 5 August 2002
7. Mr Hide’s Response to the Authority’s Request for Information about the Affidavit – 7 August 2002
8. TVNZ’s Response to the Authority’s Request to Mr Hide for Information about the Affidavit
   – 5 August 2002
9. Mr Hide’s (second) Final Comment – 19 August 2002
10. Mr Hide’s Letter to the Authority regarding absence from New Zealand – 13 September 2002
11. TVNZ’s Submission on Order – 17 October 2002
12. Mr Hide’s Submission on Order – 18 October 2002
13. TVNZ’s Second Submission on Order – 18 October 2002
14. TVNZ’s Third Submission on Order – 22 October 2002