BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Summary

[This summary does not form part of the decision.]

An item on Fair Go investigated a case of alleged elder financial abuse by a man, P against a 90-year-old woman, E. The programme also featured P's 'mentor' (M), a spokesperson from E's bank and comment from E and her grandson. The Authority did not uphold a complaint that the item was unfair, inaccurate and unbalanced. Both P and M were given a fair and reasonable opportunity to comment, the broadcaster made reasonable efforts to ensure the item was accurate and the item did not discuss a controversial issue of public importance which required the presentation of alternative views.

Not Upheld: Fairness, Accuracy, Controversial Issues

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Introduction

[1]  An item on Fair Go investigated a case of alleged elder financial abuse. An elderly woman, E, had loaned a man, P, a large sum of money that it was alleged he had obtained by deception and had not repaid. It comprised mainly the views of E and her grandson, but also featured P's 'mentor' (M) and a spokesperson from E's bank.

[2]  Lauren White complained that the item was unfair to P and M, unbalanced and inaccurate.

[3]  The issue is whether the broadcast breached the fairness, accuracy and controversial issues standards of the Free-to-Air Television Code of Broadcasting Practice.

[4]  The item was broadcast on TV ONE on 15 April 2015. The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix.

Nature of the programme and freedom of expression

[5]  Fair Go is a consumer affairs television programme with the motto, 'If you've been ripped off, short-changed or given the run-around and nobody wants to know... we do!'

[6]  The item was introduced as follows:

It's hard to know where to start with our first story – the drifter who used an elderly widow like a cash point, the bank that let her take out thousands in cash, the police who failed to prove he told lies, the chartered accountant and real estate agent who mentored him, and then there's the whole issue of elder financial abuse. What happened to 90-year-old [E] could happen to someone you love.

[7]  The item showed footage of E, with a voiceover saying, '90-year-old [E] has been forced from her home'. The reporter explained how P had 'befriended [E] and took at least $40,000 from her – could be 75 grand – no one's really sure'. The item showed E saying that P was a 'ratbag' and E's grandson describing P as a 'very evil, manipulative, nasty person who likes to exploit vulnerable elderly people'. It also showed images of P.

[8]  The reporter explained how P and E had become acquainted, saying that in 2010 P had turned up and offered to paint E's roof. A recording from 2014 was played of E's grandson accusing P of only visiting E to 'rob her'. P said he had only come to 'say hello' to 'Nan', and said, 'Gran I swear I'm gonna try and pay you back. I know I done wrong'. The reporter asked E how much money she loaned P and she said she had 'no idea'.

[9]  The reporter then said that '[E] would pull out chunks of cash from her bank... and hand it to [P], waiting nearby'. The reporter explained that although E's bank could not stop her from taking out money, the bank had alerted its 'elder abuse expert'. The reporter interviewed this expert, who explained that at the time E had said that everything was fine. The reporter asked, 'How difficult is it when the person involved says there isn't a problem?' The expert said, 'That's quite often as well, because the people are nine times out of 10 being groomed as well, and being told what to say to the frontline staff'.

[10]  The reporter explained how the expert had involved Age Concern and the police, and that the police had charged P with obtaining $60,000 by deception. The charge was heard and dismissed in November 2013 because police had 'failed to prove he told lies', the reporter said. 'And that is where Don Brash comes in'. The reporter said that in court, P's explanation was that he needed the money from E because he was painting Dr Brash's house with five workmen but hadn't been paid. The reporter interviewed Dr Brash, who said he had never heard of P and that the police had never contacted him to verify whether P's claims were true. E's grandson said, 'It's incredible that the court just let [P] walk away scot-free'.

[11]  The item then showed footage of M, saying, 'This man was supportive to P. [M] was mentor and sponsor to him'. E's grandson alleged that M was a friend of P and supported him in his court case. The reporter said that he talked to M as he left an 'unrelated' hearing and that his real estate licence had recently been suspended. In this footage, the reporter followed M as he left the hearing, down a public road and asked, 'Do you approve of what [P] did to [E]?' M responded, 'If you're a reporter, you'll know that that's been in front of the police and that's already settled'. A voiceover from the reporter said, 'Yes, it was settled, but surely a responsible mentor would have something to say about what his charge did?' Still following M, the reporter asked again, 'You approve of what [P] did to [E]? He wasn't convicted, [M], but do you think that what [P] did was the right thing to do? Sucking all that money from her?' The shot showed M walking away as the reporter said, 'That'll be a "no comment" then, will it?'

[12]  The reporter said, 'And there's little sign of contrition from [P]'. The item went back to a recording with P saying that E, E's grandson and the police had 'stuffed up' P's business. E's grandson replied to him, 'The only business you have is robbing people'. P responded: 'I didn't rob nobody'.

[13]  The reporter asked E's grandson, 'Do you think he [P] is still at it?' E's grandson responded, 'Definitely, he's got to get his money from somewhere'. E said, 'There will be others, yeah... If he treats me like that, he'll treat others like that, won't he?'

[14]  The reporter said, 'And there are others like [E]. Age Concern says that it sees 2,000 cases of suspected financial elder abuse each year'. E's bank's elder abuse expert said, 'I think it's a huge problem, and I think it's getting bigger. It's devastating to hear stories like this and seeing the vulnerable people that are affected by it'.

[15]  The reporter explained that he had received a 'long email' from P entitled 'The real truth'. In the email, P said that E and her grandson were 'vindictive and evil' and that they need to apologise to P, 'get a life and stop their nonsense'. P explained that he was acquitted because of 'overwhelming support from businesspeople who like his ethics'. The programme presenter commented, 'There's absolutely nothing in the judgment to support that'. She read more from the email saying that P was 'trying to piece his life together' and to 'stuff' E and her grandson. The reporter closed the item by saying that Age Concern knew of two other cases involving P, and that the Real Estate Agents Disciplinary Tribunal had yet to issue its final decision on M.

[16]  This item carried a high level of public interest. E's particular case of alleged financial elder abuse and the warnings given to viewers about financial elder abuse in general were important and legitimate to investigate and report on.

[17]  This value in the item and the importance of the right to freedom of expression – both of the broadcaster to impart information and of viewers to receive it – must be weighed against the level of harm alleged to have been caused by the broadcast.

Were P and/or M treated unfairly?

[18]  The fairness standard (Standard 6) states that broadcasters should deal fairly with any person or organisation taking part or referred to in a programme. 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.¹

Fairness to P

[19]  Overall, Ms White said that 'it wasn't fair that [P] should be portrayed as a scoundrel committing elder abuse' because this was not true. Specifically, Ms White argued that the following aspects of the programme were unfair to P:

•  the reporter's statement that P was a 'drifter who used an elderly widow like a cash point';
•  E's grandson's statement that P was a 'very evil, manipulative, nasty person';
•  the item did not refer to excerpts from the District Court judgment (in which charges against P were dropped) that were favourable to P, such as a finding that P did not intend to deceive E;
•  that the reporter referred to two other Age Concern cases involving P without checking the facts of those cases – which Ms White alleged were unfounded; and
•  that although the item referred to P's statement to Fair Go, the reporter and presenter 'chose only to take... what they considered to be juicy "titbits" to add to the programme's sensationalism'.

[20] TVNZ maintained that P was fairly portrayed in the item and that the story was a matter of genuine public interest. It considered that:

•  its descriptions of P were justified in the circumstances, particularly noting that, as at 2006, P had 76 prior convictions – 22 for burglary – and that although admitting he borrowed money from E he had not repaid her despite regular promises to do so;
•  P was not 'cleared' of anything and the court judgment strongly condemned his conduct, for example saying that 'undoubtedly [P] has behaved reprehensively';
•  the statement about the other Age Concern cases was neutral, contained little detail and no allegation or implication as to the nature of these cases; and
•  the programme fairly and accurately reported P's statement to Fair Go.

[21]  While we agree that the impression created of P was negative, having regard to all the relevant factors we are satisfied that viewers would not have been left with an unfairly negative impression of him. From the material we have before us it appears that TVNZ had a reasonable basis to make the statements about P that it did. It accurately reported that charges against P of obtaining by deception were dropped (see paragraph [10]). It also referred to P's statement to Fair Go at the end of the item, and included his comments in a recording of a conversation between P and E's grandson (see paragraphs [8] and [12]). Overall, P was given a reasonable opportunity to have his say and his position was fairly presented in the programme.

[22]  Therefore we decline to uphold the complaint that P was treated unfairly.

Fairness to M

[23]  Ms White argued that M should not have been filmed or included in the item. She considered the item implied he was involved in wrong-doing when in fact he was completely removed from the situation. She considered that E's daughter and grandson were responsible for Fair Go unjustifiably focusing on M. In particular, she believed the following factors resulted in M being treated unfairly:

•  E had written a letter about M regarding an unrelated Real Estate Agents Disciplinary Tribunal (READT) case in which she said that what her grandson alleged about M was 'a pack of bloody lies'; this had been provided to Fair Go but was not mentioned in the item;
•  M had a trespass notice against E's grandson, which was also not mentioned in the item; and
•  the Fair Go reporter 'accosted' M outside an unrelated hearing; she said that '[t]o suddenly jump out from behind a pillar and put an historical case to [M] when his mind was clearly somewhere else was completely unfair'.

[24]  TVNZ argued that given M's relationship with P, it was appropriate to seek his view on P's conduct, which he declined to express. It argued no allegations were made against M that he in any way fraudulently assisted P and any description of him was neutral, accurate and consistent with the information supplied to Fair Go. It maintained the letter written by E and the trespass notice dealt with issues irrelevant to the item, so the fairness standard did not require them to be mentioned.

[25]  In our view, the manner in which M was approached outside the READT hearing was potentially unfair, as he was effectively ambushed and questioned about something that had happened more than two years earlier. However, we think the fact that TVNZ sought comment from M after this, and explained the nature of the programme that was to be broadcast, mitigated any unfairness. From the material we have before us, it appears that subsequent to approaching M outside the READT hearing, TVNZ wrote to M for comment on 9 April, requesting a response by 14 April before the broadcast on 15 April. M did submit a comment, but it did not contain a substantive response to any of the questions posed to him by TVNZ. The main message of M's response was that he would sue for defamation if the broadcast went ahead. We are satisfied that this amounted to a reasonable opportunity for M to give comment for the programme, and given that in his response he elected not address the issues discussed in the item, that the omission of that response in the programme did not result in him being treated unfairly.

[26]  Accordingly we decline to uphold the fairness complaint in relation to M.

[27]  Ms White made a number of other arguments under Standard 6 which are outside the scope of our determination. For example, she complained about material that was either not broadcast at all, or that was broadcast in promos for the programme, which she did not raise in her original complaint. Our task is to review the broadcaster's decision, so our jurisdiction is limited to matters raised in the original complaint and cannot extend to issues added at a later stage in the complaints process.

Was the broadcast inaccurate or misleading?

[28]  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.²

[29]   Ms White argued that a number of statements in the item were inaccurate or misleading. Overall, we are satisfied that TVNZ made reasonable efforts to ensure the broadcast was accurate and did not mislead, and we therefore decline to uphold the complaint under Standard 5. For the sake of completeness we have briefly addressed each of the points raised in Ms White's accuracy complaint.

'[P] took at least $40,000 from [E] – could be 75 grand – no one is really sure'. (Reporter)

[30]  Ms White argued that this statement was misleading because the Judge in the District Court case could not add up how much money was loaned, and in fact the amount was much lower than alleged in the item. He found close to $40,000 was taken out of E's account, but Ms White claimed this included her living expenses for a two-year period and that E's daughter also had access to her account.

[31]  TVNZ argued that no definite monetary figure was given in the broadcast, noting the reporter used the phrases 'could be' and 'no one is really sure'. It also said it was clear from the item that E herself was unsure of the amount of money she lent to P. TVNZ maintained it accurately reported the Judge's findings on the range of amounts potentially loaned.

[32]  The District Court judgment states:

All I can say is that it may have been as little as $40,000 and, perhaps, as much as $74,000 but I could not possibly be satisfied as to any particular figure within that bracket.

[33]  We are satisfied that the reporter's statement accurately reflected this part of the judgment and was not misleading.

'[E] would pull out chunks of cash from her bank ... and hand it to [P] waiting nearby' (Reporter) and 'Nine times out of 10 the people are being groomed.' (BNZ elder abuse expert, speaking about financial elder abuse cases)

[34]  Ms White argued P was not 'grooming' E to give him cash and there was no evidence (such as security camera footage) to suggest P 'waited nearby' while E made cash withdrawals. She said this was a 'damaging speculation'.

[35]  TVNZ said this statement was based on information provided by three separate sources, including E's bank, who 'were competent to support the information reported'. It noted that the item contained no allegation P 'groomed' E, and this term was used by the elder abuse expert in response to a general question about financial elder abuse.

[36]  We agree with TVNZ that the item did not expressly state that P was 'grooming' E and that the elder abuse expert was speaking generally in that particular instance. Regardless, we are satisfied that TVNZ had a reasonable basis for these claims and that viewers would not have been misled.

The implication that P lied about his work for Don Brash

[37]  Ms White argued that the Judge had misunderstood the facts in his judgment, and that P had in fact worked on the ACT Party offices (not Dr Brash's house) for cash and never dealt with Dr Brash directly, which is why he stated in the item that he had never heard of P.

[38]  TVNZ considered Fair Go had accurately reported the Judge's comments in this regard and that it was entitled to rely on the judgment.

[39]  We agree that it was reasonable for the broadcaster to expect to be able to rely on the District Court judgment, and that it accurately reported this aspect of the judgment. Ms White's concerns that there are alleged errors within the judgment cannot be addressed as a matter of broadcasting standards.

M's role in the incident

[40]  Ms White argued the item described M as 'the Chartered Accountant and Real Estate Agent who let [P] take out thousands in cash', accused him of assisting P in 'sucking' money from E and should have referred to him as a 'Court Appointed Mentor'. She also said the item should have noted that M had ceased mentoring P by the time he borrowed money from E.

[41]  TVNZ argued the item contained no allegation that M assisted P in taking E's money, but described him as the 'Chartered Accountant and Real Estate Agent who mentored him'. It maintained this was a neutral and entirely accurate description that was based on M's own statement to TVNZ. It stated it found no evidence supporting the claim that M was a 'Court Appointed Mentor', only that he was an 'approved sponsor'.

[42]  The item did not contain any statement that M 'let [P] take out thousands in cash'. Ms White later clarified that the statement was made in an earlier promo for Fair Go; however, since this promo was not identified in the original complaint we do not have jurisdiction to consider it here. We do not think that the description of M as P's 'mentor' and other descriptions of their relationship were misleading. In addition, as we have noted at paragraph [25] above, M had the opportunity to clarify his relationship with P in his statement provided to Fair Go, but chose not to.

Timing of events

[43]  Ms White argued that TVNZ presented the story as if it was recent, which was misleading because in fact it had taken place three years ago.

[44]  We agree with TVNZ that the reporter clearly stated in the item, 'In 2010 [P] turned up and offered to paint [E's] roof', and that 'P went on trial... in November 2013'. Viewers would not have been misled in this respect.

Did the item discuss a controversial issue of public importance which required the presentation of alternative viewpoints?

[45]  The balance standard (Standard 4) states that when controversial issues of public importance are discussed in news, current affairs and factual programmes, broadcasters should make reasonable efforts, or give reasonable opportunities, to present significant points of view either in the same programme or in other programmes within the period of current interest. The standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.³

[46]  Ms White argued that the item was unbalanced because it amounted to emotional sensationalism and did not adequately present P's and M's side of the story. TVNZ argued while the issue of financial elder abuse is one of concern, the singular case discussed in the item was not a controversial issue of public importance. It maintained that in any case, significant viewpoints were included.

[47]  In our view, the complainant's concerns under the balance standard have been appropriately addressed as a matter of fairness and the reasonableness of the opportunities given to P and M to comment for the programme. In any event, we agree with the broadcaster that, as the focus of the story was one individual's personal story and experiences, it did not discuss a controversial issue of public importance which required the presentation of alternative perspectives.

[48]  Accordingly we decline to uphold the complaint under Standard 4.

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

Signed for and on behalf of the Authority

Peter Radich

Chair

25 September 2015

Appendix

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

1      Lauren White's formal complaint – 19 April 2015

2      TVNZ's response to the complaint – 18 May 2015

3      Ms White's referral to the Authority – 16 June 2015

4      TVNZ's response to the Authority – 31 July 2015

5      Ms White's final comment – 14 August 2015

¹ Commerce Commission and TVWorks Ltd, Decision No. 2008-014

² Bush and Television New Zealand Ltd, Decision No. 2010-036

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