BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaints under section 8(1B)(b)(i) of the Broadcasting Act 1989
Fair Go – two items investigated claims made by previous customers of Hampton Court Ltd, a wooden gate manufacturer – customers were interviewed about their experiences with the company and its director – items contained footage of company director at his workshop which was filmed from a public footpath – allegedly in breach of standards relating to privacy, law and order, controversial issues, fairness, accuracy, discrimination and denigration, and responsible programming

Findings
Standard 6 (fairness) – impression created about the complainant and his company was based on the opinions of customers and Mr Bird was provided with a fair and adequate opportunity to respond and put forward his position – items included comprehensive summaries of Mr Bird’s statement – items not unfair in any other respect – Mr Bird and Hampton Court Ltd treated fairly – not upheld

Standard 5 (accuracy) – customers’ comments were exempt from standards of accuracy under guideline 5a – other aspects of complaint related to matters that were either accurate or not material in context – broadcast accurate in all material respects and would not have misled viewers on the essential issues – not upheld

Standard 3 (privacy) – no private facts disclosed about Mr Bird – footage taken on Mr Bird’s property was not broadcast – broadcasts did not breach Mr Bird’s privacy – not upheld

This headnote does not form part of the decision.

Introduction

[1]  Fair Go investigated claims made by previous customers of Hampton Court Ltd, a wooden gate manufacturer. The investigation spanned two separate broadcasts in which customers were interviewed about their experiences with the company and its director, Stephen Bird. The items contained footage of Mr Bird at his workshop on residential property as the reporter approached him for an interview. The items were broadcast on TV One on 4 July and 15 August 2012.

[2]  Stephen Bird, on behalf of himself and Hampton Court Ltd, made formal complaints to Television New Zealand Ltd, the broadcaster, alleging that the programmes “fabricated and manipulated” information with the intention of misleading viewers. In addition, he argued that the actions of the reporter and camera crew, in entering his property, invaded his privacy.

[3]  We consider that standards relating to privacy, accuracy and fairness are the most relevant to the complaints and we have limited our determination accordingly. Mr Bird also raised other standards which we have addressed at paragraph [50] below.

[4]  The focus therefore, is whether the items breached Standards 3, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[5]  The members of the Authority have viewed recordings of the broadcasts complained about and have read the correspondence listed in the Appendix.

Preliminary Matters

[6]  Mr Bird raised two preliminary matters. First, he was concerned that TVNZ chose to broadcast the 15 August item, before it had determined his complaint about the 4 July item. We agree with TVNZ that there is no requirement in the Broadcasting Act 1989 for broadcasters to refrain from airing follow-up items, where the initial broadcast is the subject of an unresolved formal complaint.

[7]  The second matter raised by Mr Bird was that the material broadcast related to issues scheduled for Disputes Tribunal hearings. He argued that this was contrary to natural justice and prejudiced his right to a fair hearing. Unlike the courts, Disputes Tribunals are not subject to rules which prevent public comment on cases before the courts, in a way that may prejudice the outcome.¹  

[8]  We therefore dismiss these preliminary matters, and proceed to consider the substantive complaints.

Nature of the programme and freedom of expression

[9]  Fair Go is a locally produced consumer affairs programme which investigates various products and services, and provides information and consumer advice. It operates with the legitimate intention of providing an examination of, and advice on, consumer issues in the New Zealand context. The programme informs the public by examining products and services, and providing a platform for consumer complaints, with a view to achieving a favourable outcome.

[10]  The items subject to complaint investigated claims made by a number of aggrieved customers, who ordered gates from the complainant’s company, Hampton Court Ltd. The customers spoke of alleged delays, misrepresentations as to quality, and poor workmanship, and made accusations against Mr Bird, for example that he was a “very poor tradesman” and a “bully”. The items made public the complaints against Mr Bird and his company and warned viewers about his alleged business practices. In addition, the story was told in the context of internet trading, because many customers had discovered the company online through its website, and in this sense, provided useful information and advice about the risks of finding and/or purchasing products and services online.

[11]  We recognise that the Fair Go series, and the broadcasts subject to complaint, carried a high level of public interest, and were of high value in terms of freedom of expression.

[12]  This value must be balanced against the potential harm that is likely to result from allowing the unfettered dissemination of that speech.² We may only limit the right to freedom of expression to an extent that is reasonable, and with proper justification. Here, the alleged harm, in terms of the underlying objectives of the relevant broadcasting standards, was said to derive from alleged false accusations levelled at Mr Bird and his business, resulting in reputational damage and subsequent financial loss. In addition, Mr Bird argued that the reporter and camera crew “trespassed” on his property and infringed his right to privacy.

Was Mr Bird (and Hampton Court Ltd) treated unfairly?

[13]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme.

[14]  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.³

[15]  Mr Bird’s fairness complaints can be summarised as follows:

• The items misrepresented facts and contained false claims regarding his business dealings with customers.
• The presenter selectively summarised his responses to the issues, in a manner that was unfair and misleading.
• The reporter and camera person “trespassed” on his property which infringed his privacy and was unfair.
• The items were unfairly sensationalist.

[16]  The broadcasts contained interviews with a number of aggrieved customers who shared their experiences of dealing with Mr Bird and his company. The customers’ stories were told through their own words, and through comments by the reporter, for example:

• “So [the customer] got the company director, Steve Bird… around to make a bunch of fence panels… Yet when they finally turned up almost a year later, [the customer] was horrified to discover most of Steve Bird’s panels didn’t fit, poorly finished too.” (reporter)
• “Across town [another customer] was in a slightly better position. He has half a fence. The rest was never built… On top of all that, [the customer] says he had to endure hugely annoying delays to get any work done in the first place.” (reporter)
• “I think he is a very poor tradesman.” (customer)
• “He got angry, he got quite close to me and he shouted at me that I wasn’t a gate designer, I wasn’t a builder, I didn’t know what I was talking about… he’s like a playground bully that became a grown-up playground bully.” (customer)

[17]  In the 15 August broadcast, a customer (who was represented by an actor as he did not want to be identified) described how Mr Bird distributed a flier in his neighbourhood accusing him of “deviant sexual behaviour”. The item also contained an interview with a family who said that Mr Bird was taking them to the Disputes Tribunal for gates they had “fully paid for but he hasn’t delivered”.

[18]  We accept that the items, and specifically the customers’ claims about poor workmanship and abuse, created an impression of Mr Bird that did not reflect well on his character or business. Because this impression was founded in the customers’ personal experiences and opinions, the key issue is whether Mr Bird was provided with a fair and reasonable opportunity to respond to their claims, so that viewers were presented with both sides of the story. The Authority has previously stated that 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.⁴

[19]  Fair Go first contacted Mr Bird on 25 June, more than a week before the first broadcast. The reporter advised Mr Bird of the intended 4 July broadcast and provided a list of questions relating to the customers’ complaints. Mr Bird responded with a statement the same day, giving detailed answers to those questions. The following day, on 26 June, the reporter and camera crew approached Mr Bird at his workshop, seeking an on-camera interview, but he declined. After the 4 July broadcast, the reporter emailed Mr Bird and informed him of the follow-up item and provided questions regarding the issues that would be discussed in that broadcast.

[20]  We think that these approaches were sufficient to inform Mr Bird of the intended broadcasts, and that he was provided with ample opportunity to give his perspective for inclusion in the programme. Mr Bird was made aware of the issues likely to be discussed, including the specifics of the complaints about his company, and was therefore given a fair and reasonable chance to compile a meaningful response to each of those complaints.

[21]  Mr Bird argued that his response was not fairly or accurately reported in the 4 July item, stating that the summary was either “so non-descriptive as to be meaningless” or “so selective as to be insulting and intentionally inaccurate”. In particular, he referred to a comment made by the reporter about his past bankruptcy, stating that he had informed the reporter, in his statement, that this was historic and irrelevant.

[22]  TVNZ considered that both items contained fair reflections of Mr Bird’s viewpoint. It said there was a strong public interest in the programmes, and that consumer affairs shows such as Fair Go were recognised as having a public duty to report details of bona fide complaints against businesses.

[23]  We are satisfied that both items contained comprehensive summaries of Mr Bird’s statement, including the following points:

• Mr Bird accepted there had been problems and he regretted them.
• The delays were due to health problems.
• The company only used the best available materials and minor defects could occur naturally in wood.
• Hampton Gates Ltd (a trading division of Hampton Court Ltd) had been in business for 20 years, supplying gates to many happy customers, and only 13 complaints had been lodged in that time.
• Some customers expected more than they paid for.
• Mr Bird was now working to improve his disputes resolution process with clients so that complaints could be resolved in a fair and non-confrontational way.

[24]  The items also included Mr Bird’s perspective on claims made by each of the customers interviewed. For example, the presenter summarised Mr Bird’s assertions that he made exactly what one customer requested, but she changed her mind. It referred to his comments that another customer had lost their case in the Disputes Tribunal, and that in another case there were facts in dispute. In terms of Mr Bird’s past bankruptcy, the reporter presented his response, saying, “Turns out Steve Bird has quite a history behind him. We’ve discovered he’s been bankrupted three times, but he told us those matters were historic and irrelevant” [our emphasis]. We think that the reference to bankruptcy was legitimate and relevant in the context of a story about complaints relating to a business’s conduct and reliability.

[25]  We think that both items contained comprehensive summaries of the complainant’s position on the matters raised, as outlined in his statement. There was no underlying derogatory tone or comment from the presenters, and they made sure to cover all of the key points. We think that given the length of the programme, the summaries were particularly fair.

Other fairness arguments

[26]  Mr Bird made a number of other arguments relating to alleged unfair treatment. We have addressed only those arguments which, in our view, raise broadcasting standards issues.

[27]  The complainant argued that the items implied the customers’ complaints were current, when some arose more than two years prior. We are satisfied that the items did not claim, either explicitly or implicitly, that the complaints were current, but simply that there was a significant number of customers who were unhappy with Mr Bird and his company.

[28]  Mr Bird argued that by using an actor to represent the unnamed customer (see paragraph [17]), who was in fact married to one of the other customers interviewed, the item inflated the number of complaints and was unfair. However, we agree with the broadcaster’s decision to adhere to the man’s request not to be identified, given the contents of the flier. Each individual customer was entitled to share their own story and experiences with Mr Bird, and TVNZ could not acknowledge the link between the two spouses as it would have revealed the man’s identity. This was not unfair.

[29]  Mr Bird also referred to the actor’s alleged statement, “[Mr Bird] needs to be shot”. Having viewed the broadcast, we are satisfied that Mr Bird was mistaken, and the actor actually said, “He needs to be stopped”.

[30]  The complainant argued that the presenter’s concluding statement in the 15 August item, “We say be incredibly wary about doing business with this man”, was defamatory and unfair. This statement was clearly presented as the genuine concluding opinion of the programme, based on the complaints it received from unhappy customers. As Mr Bird was provided with a fair and reasonable opportunity to respond to the issues, viewers could make up their own minds about Mr Bird and his company’s work. We therefore find that the statement was not unfair.

[31]  In terms of the alleged “trespass” on the complainant’s property, we note that the items did not actually contain any footage taken on the property. Trespass is not an issue of broadcasting standards and is outside the Authority’s jurisdiction.⁵

[32]  Finally, Mr Bird argued that the items were sensationalist, and used digital images unfairly. We accept that aspects of the items were exaggerated, for example the reporter said that Mr Bird had “managed to peeve off so many clients… that we’ve had to hire a mini bus to round them all up”. This is a normal and acceptable aspect of television broadcasts that is used to pique viewers’ interest, and to entertain the audience by telling a story. The use of digital imaging of fence panels was a legitimate editorial technique used as visual accompaniment to the story.

Overall fairness

[33]  The broadcast material was typical of content that regularly features on Fair Go, and which is legitimate provided that those accused of unsatisfactory conduct are made aware of the allegations being made against them, they are provided with a fair and reasonable opportunity to comment, and their perspective is adequately put forward. This occurred here.

[34]  We are satisfied that, overall, Mr Bird and Hampton Court Ltd were treated fairly, and that the alleged harm to the complainant, and the audience, did not outweigh the broadcaster’s right to freedom of expression and the story’s value. Accordingly, we decline to uphold the fairness complaints.

Were the items inaccurate or misleading?

[35]  The accuracy standard (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. The objective of this standard is to protect audiences from receiving misinformation and thereby being misled.⁶

[36]  Mr Bird argued that both broadcasts contained a “compilation of fabricated lies and half-truths”. The claims made by the customers were clearly framed as their personal experiences and opinions, rather than statements of fact, and were therefore exempt from standards of accuracy under guideline 5a, which provides that the standard does not apply to statements which are clearly distinguishable as comment and opinion. In any event, we consider that this aspect of the complaint has been adequately addressed in our assessment of fairness.

[37]  We have therefore limited our consideration under this standard to the following aspects of the accuracy complaints:

• The 4 July item was introduced by reference to internet trading, which was misleading.
• The 4 July item contained a reference to Trade Me, which inferred that the company was trading “recklessly”.
• Mr Bird was referred to as a “carpenter”, when he was actually a “cabinetmaker”, and so did not require a licence.
• The reference to the distributed flier was “selective” and omitted important contextual material.
• The presenter inaccurately stated that Mr Bird had distributed “fliers” regarding other customers, when he had actually sent “emails” which only threatened distribution.
• The presenter inaccurately stated that Mr Bird failed to turn up to a Disputes Tribunal hearing, when in fact he had adjourned that hearing.

[38]  As noted at paragraph [10], the story about Mr Bird and his company was told in the context of internet trading. The point being made was that the services provided by Hampton Gates Ltd allegedly did not live up to the impression its website gave, which was consistent with the message conveyed by the items, that is, to be weary of online dealings. The presenter stated that the website was a “gateway” to the customers’ dealings with the company, and no claim was made that the gates were purchased online. The broadcasts were not misleading in this respect.

[39]  The 4 July item contained an interview with a representative from Trade Me, who said that many customers had met Mr Bird though that website but had been “lured off the site and had done the deal outside Trade Me”. The representative said that Mr Bird had since been banned from the site due to his conduct. Mr Bird did not dispute this, and we have no evidence to suggest these statements were inaccurate. The Trade Me representative was an appropriate person to ask about the company’s online trading, and it was reasonable to expect he was in a position to accurately report the company’s status on Trade Me.

[40]  The term “carpenter” was applied to Mr Bird because he made wooden gates. It was not material to the focus of the item and would not have altered the impression created in the mind of the average viewer. The use of the term was not inaccurate.

[41]  Similarly, the reference to “fliers” instead of “emails” was not material, and in any event, it was made clear in the 15 August item that no fliers were actually distributed, with the exception of the flier regarding the unnamed man that was interviewed. We agree with TVNZ that Mr Bird’s decision not to distribute the fliers did not “lessen the explicit threat of his actions”.

[42]  Finally, we do not consider that the presenter’s statement that Mr Bird “failed to turn up” at the Disputes Tribunal hearing was misleading. We accept TVNZ’s argument that the comment was intended as a shorthand way to illustrate that Mr Bird put the process on hold, and we note that the presenter put forward Mr Bird’s viewpoint in the item that this was because of the Fair Go investigation.

[43]  Overall, we are satisfied that the broadcasts were accurate in all material respects, and would not have misled viewers on the main issues. We therefore decline to uphold the Standard 5 complaint.

Did the items breach Mr Bird’s privacy?

[44]  Standard 3 states that broadcasters should maintain standards consistent with the privacy of the individual. The privacy standard exists to protect individuals from undesired access to, and disclosure of, information about themselves and their affairs, in order to maintain their dignity, choice, mental wellbeing and reputation, and their ability to develop relationships, opinions and creativity away from the glare of publicity.

[45]  When we consider a privacy complaint, we must first determine whether the person whose privacy has allegedly been interfered with was identifiable in the broadcast. Mr Bird and his company were named in the items, and he was shown in photographs and footage a number of times. The complainant was clearly identifiable.

[46]  Mr Bird argued that the actions of the reporter and the camera crew, in entering his property, when he had already declined to be interviewed and had provided written responses to questions (see paragraph [19]), infringed his privacy. He said there was a sign at the end of his driveway which forbid entry by persons not accompanied by a staff member.

[47]  TVNZ said that the broadcast did not contain any footage taken on Mr Bird’s property, the location of the property was not revealed, and the broadcast did not disclose any private facts that could be regarded as highly offensive to an objective reasonable person. It considered that the disclosure of the information about Mr Bird and his company was in the public interest.

[48]  As noted above, the footage taken on Mr Bird’s property was not broadcast. The items contained footage of Mr Bird down his driveway and in his workshop, which was filmed from the footpath at the driveway entrance, where he would have been within clear view of the public. The footage did not reveal any private facts about Mr Bird or his company. The reporter was simply shown calling to Mr Bird for an interview, and he shouted, “You’re creating harassment, now go away, or I’ll call the police”. There was public interest in illustrating Mr Bird’s demeanour, particularly following the allegations by customers that he was a “bully”.

[49]  We therefore decline to uphold the Standard 3 complaint.

Did the broadcasts breach the other standards raised in the complaint?

[50]  Mr Bird also nominated standards relating to good taste and decency, law and order, controversial issues, discrimination and denigration, and responsible programming of the Free-to-Air Television Code of Broadcasting Practice. In summary, these standards were not breached because:

• The good taste and decency standard is primarily concerned with sexual material, nudity, coarse language and violence, and the items did not contain anything of this nature (Standard 1).
• Mr Bird’s concern under the law and order standard was that the reporter and camera crew’s actions, in entering his property, amounted to trespass. However, the standard does not require broadcasters to comply with all legal requirements, but requires respect for the principles of law.⁷ As noted under fairness, trespass is not an issue of broadcasting standards and is outside the Authority’s jurisdiction (Standard 2).
• The broadcasts did not contain any discussion of a controversial issue of public importance, and in any event, the complainant was provided with an opportunity to present his viewpoint and his response was adequately summarised in the items (Standard 4).
• The broadcasts did not encourage discrimination or denigration against any section of the community (Standard 7).
• The responsible programming standard is primarily directed at the use of appropriate classifications and time-bands. Fair Go was an unclassified consumer affairs programme and would not have caused panic, unwarranted alarm or distress (Standard 8).

[51]  Accordingly, we decline to uphold the complaint that these standards were breached.

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

Signed for and on behalf of the Authority

Peter Radich
Chair
27 February 2013

Appendix

The correspondence listed below was received and considered by the Authority when it determined these complaints:

Stephen Bird’s complaint about 4 July programme

1           Stephen Bird’s formal complaint about 4 July programme – 19 July 2012

2          TVNZ’s response to the complaint – 31 August 2012

3          Mr Bird’s referral to the Authority – 24 September 2012

4          TVNZ’s response to the referral – 21 December 2012

5          Mr Bird’s final comment – 23 January 2013

6          TVNZ’s final comment – 29 January 2013

7          Further comments from Mr Bird – 30 January 2013

Stephen Bird’s complaint about 15 August programme

1           Mr Bird’s formal complaint about 15 August programme – 6 September 2012

2          TVNZ’s response to the complaint – 3 October 2012

3          Mr Bird’s referral to the Authority – 25 October 2012

4          TVNZ’s response to the referral – 21 December 2012

5          Mr Bird’s final comment – 23 January 2013

6          TVNZ’s final comment – 29 January 2013

7          Further comments from Mr Bird – 30 January 2013

¹Referred to as the sub judice rule

²See sections 5 and 14 of the New Zealand Bill of Rights Act 1990.

³Commerce Commission and TVWorks Ltd, Decision No. 2008-014

⁴See, for example, HC and CT and Television New Zealand Ltd, Decision No. 2010-163.

⁵Clarke and TV3 Network Services Ltd, Decision No. 2000-148

⁶Bush and Television New Zealand Ltd, Decision No. 2010-036

⁷Ryton Station Ltd and TV3 Network Services Ltd, Decision No. 2002-005, 2002-006