Fair Go – auction of house – sale fell through – house resold to unsuccessful bidder – unreasonable to charge two commissions – unfair – unbalanced
(1) Standard G4 – promo – unfair – uphold
(2) Standard G4 – items explained issues fairly – no uphold – Standards G6, G7 G11(i) – subsumed
This headnote does not form part of the decision.
Fair Go, a consumer advocate programme, is broadcast weekly on TV One at 7.30pm. In the episodes broadcast on 12 and 19 July 2000, it reported that the vendor of a house believed that he had been unfairly charged a second commission by real estate agents after a first sale had fallen through and a subsequent sale had been made. His belief was alluded to in a promo for Fair Go which was broadcast on a number of occasions.
Olsen-Everson Ltd, the real estate company involved, complained to Television New Zealand Ltd, the broadcaster, that it had been dealt with unfairly in the promo, and unfairly and in an unbalanced way in the items. The items, it added, had failed to report the events correctly, and had paid insufficient attention to the real estate company’s version of events.
In response, TVNZ pointed out that the items made clear that the complainant company had not acted illegally. Rather, it stated, the items had asked whether the complainant’s actions were reasonable in the circumstances outlined.
Dissatisfied with TVNZ’s response, Olsen-Everson Ltd referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.
For the reasons below, the Authority upholds the complaint that the promo breached standard G4, but declines to uphold the other complaints about the items.
The members of the Authority have viewed a tape of the items on 12 and 19 July, and have read the correspondence which is listed in the Appendix. The Authority determines this complaint without a formal hearing.
Fair Go is a consumer advocate programme which examines cases where complainants feel that they have been treated unfairly. In an item broadcast on 12 July, it was explained that a viewer had sold his house by auction, but the sale had fallen through. The viewer asked the same real estate company to sell his house again. The company, Olsen-Everson Ltd, then sold the house to one of the unsuccessful bidders at the auction. The company charged a commission on each sale and Fair Go, while accepting the legality of this action, questioned whether it was fair.
Olsen-Everson Ltd through its Managing Director Alan Barwick complained to TVNZ that the item was unfair, unbalanced, deceptive and misleading and breached standards G4, G6, G7, and G11 of the Television Code of Broadcasting Practice.
The company complained that the item did not make it clear:
* That the vendor had requested it to resell the property
* That the vendor had received money from each sale
* That the vendor was substantially better off because the first sale fell through
* That the second sale did not take place until two months after the auction
* That the second sale was not completed in less than an hour, as the item suggested, but was
completed over several days.
Moreover, the company added, more time had been given in the item to the presentation of the vendor’s case than had been given to its reply. It concluded:
It is totally unreasonable for Fair Go on the one hand to acknowledge that Olsen-Everson Ltd have been honest, up front and clear about the way they do business, and on the other hand to say that Olsen-Everson are wrong to do this.
TVNZ assessed the complaint against the nominated standards. They require broadcasters:
G4 To deal justly and fairly with any person taking part or referred to in any programme.
G6 To show balance, impartiality and fairness in dealing with political matters, current affairs and all questions of a controversial nature.
G7 To avoid the use of any deceptive programme practice in the presentation of programmes which takes advantage of the confidence viewers have in the integrity of broadcasting.
G11 To refrain from broadcasting any programme which, when considered as a whole:
i) Simulates news or events in such a way as to mislead or alarm viewers.
In its response to the complainant, TVNZ observed:
that your complaint raises the issue of what is legal and within the rules, on the one hand, and what is fair, on the other. It was noted that at no point in either item, or in the promo, was there a suggestion that the actions taken by Olsen-Everson were in any sense illegal or contrary to the rules followed by real estate agents. It was noted that in the item on the 12th July, Fair Go specifically acknowledged that –
"Olsen-Everson has done nothing wrong, technically"
Just a few seconds earlier, during his interview with you, the reporter had acknowledged that –
"So legally you're right…."
Turning to the specific points raised in the complaint, TVNZ wrote:
* The item reflected the vendor’s perspective that he had been unfairly required to pay two commissions for the sale of his property.
* That the item did not give the impression that the two commissions were charged on a single transaction.
The issue the programme was raising was whether Olsen-Everson acted fairly when it charged a commission on the second sale without having to go through the usual process of a full marketing campaign and/or arranging an auction – the type of activities which a customer might see as justifying the charging of a full second commission. The programme did not dispute the fact that Olsen-Everson was legally entitled to a second commission; what it did question was the fairness of it doing so in this particular circumstance.
* That the complainant’s comment about the financial outcome for the vendor does not negate the central question of whether the time, work and effort required of Olsen-Everson to secure the second sale in this case justified the charging of a second commission. The interest of the eventual buyer had been established at the time of the original auction and was already on file.
* That the item did not give an impression that the second sale was made soon after the auction took place.
* That taking into account the comments made in the programme by the various parties, the item did not suggest that the second purchase was made in "less than an hour".
Dealing with the amount of time given in the item to advancing the vendor’s and the complainant’s views, TVNZ said that it did not accept that balance could be achieved with a stop watch. It quoted from the item some questions put to the vendor, and some questions put to the complainant, and argued that viewers were left in no doubt about the complainant company’s position on the matters discussed.
Finally, in response to the complainant’s concerns expressed about the way it had been dealt with by Fair Go, TVNZ stated:
The item did state that your firm acted legally and in accordance with the rules and that it made its position clear to the vendor. However, the question raised is whether in the particular circumstances of this case Olsen-Everson acted fairly. The series is called Fair Go – and fairness to consumers has always been its focus.
By way of elaboration, TVNZ expressed the view that strict adherence to the legalities of a commercial auction could result in one party being treated unfairly, and contended that the item on 12 July had invited viewers to consider whether that had occurred on the occasion discussed. TVNZ pointed out that some reaction from viewers – two favouring the vendor and one supporting the complainant - had been broadcast in the item on 19 July.
In conclusion, TVNZ did not accept that standards G4 and G6 had been breached. It did not consider standards G7 or G11(i) were applicable.
Referring its complaint to the Authority, Olsen-Everson began by noting the item’s acknowledgment that the company had not acted illegally. It wrote:
The words may have been used but the clear implication was that Olsen Everson were exploiting of the fringe of legality for their own gain.
The company then dealt with the points covered in the correspondence, and said:
* The item failed to make clear that the vendor had asked the company to sell his
property for the second time, and agreed to pay a second commission.
* The item also failed to make clear that the vendor had received proceeds from both
* The item did not explain adequately the amount of time which elapsed between the two
sales and suggested that the second was very close in time to the first.
* The item implied that the second sale took only a short time to complete rather than the
three days involved.
* By not explaining that the vendor was better off having sold the property twice, the
item suggested that the agent was a villain and the vendor had been hard done by.
As for the amount of time the item gave to each side of the dispute, the complainant maintained its argument that the broadcast had been unfair. It was unfair as both sides were not presented in an objective and balanced manner.
Turning to the way the item had dealt with it, the company said it had always been open with the vendor. Indeed, it wrote:
It would have been fairer for Fair Go to make this point and praise them for the way they conducted this transaction.
The complainant concluded:
TVNZ have found no fault in their own actions. Common sense would say that to be balanced a programme must give an equal allocation of time to both sides of an argument, other things being equal. TVNZ have not demonstrated that they have been balanced and impartial.
Olsen Everson have suffered through the power of TVNZ.
TVNZ should be reminded what balance and fairness means.
The item on Fair Go recorded that the auction of a house fell through when the purchaser was unable to complete the purchase. The deposit was forfeited. The vendor asked the same agent to resell the house. This was accomplished when the agent negotiated a sale to a party who had been an unsuccessful bidder at the auction. The agent charged a commission both on the auction and the later resale, and the vendor complained to Fair Go that the real estate agent had been unreasonable in charging two commissions. The item included comments from the agent. Fair Go, while questioning the fairness of the agent's actions, acknowledged that they were lawful.
An item broadcast a week later recorded three responses from viewers about the first item: two supported the complainant vendor, and one agreed with the agent.
The complainant argued that the broadcasts breached standards G4, G6, G7 and G11(i) of the Television Code of Broadcasting Practice. In view of the issues raised, the Authority considers that they are all encompassed in the requirement in standard G4 to deal justly and fairly with any party referred to.
The complainant listed five matters which it contended had not been clearly explained in the item on 12 July. Having viewed that item, the Authority considers that the reason the agent had charged a commission on each of the sales was adequately explained. The item questioned whether two commissions should be charged on the basis of the amount of work which apparently had been involved in the second sale. The item acknowledged that there were two sales and made the point that the vendor had invited the agent to sell the property after the first sale had fallen through.
In determining the complaint, the Authority also takes into account that the item was introduced in a manner which suggested that the transaction involved a clash between the complainant’s view, which focused on what were seen as ethical issues, and the agent’s approach, which emphasised the technical and legal aspects. The Authority accepts that Fair Go, as a consumer advocacy programme was entitled to make a judgment, provided each side was dealt with fairly.
In dealing with this difference of opinion advanced in the items complained about, the Authority notes that the facts were presented accurately, and that the agent was given ample opportunity to present the company’s case. To use a colloquialism, the Authority concludes that Olsen-Everson was given a "fair go". In these circumstances, the Authority does not accept that the broadcast of the items on Fair Go on 12 and 19 July breached standard G4.
The Authority reaches a different conclusion about the promo. The brief promo spoke of: "The man who’s mad about paying twice to sell his house once". An essential feature of the item was the fact that the house was sold twice. As this point was not conveyed accurately in the promo, the Authority concludes that the broadcast of the promo was unfair to the real estate agent and in breach of standard G4.
For the above reasons, the Authority upholds the complaint that the broadcast of a promo for Fair Go, by Television New Zealand Ltd at 7.30pm on TV One on 12 July 2000, breached standard G4 of the Television Code of Broadcasting Practice.
It declines to uphold any other aspect of the complaints.
Having upheld a complaint, the Authority may impose a penalty under s.13 or s.16 of the Broadcasting Act 1989.
Although the promo was unfair to the complainant real estate agent, the Authority is of the opinion that the items explained appropriately the background to the events discussed. In these circumstances, the Authority considers that the imposition of a penalty is not appropriate.
Signed for and on behalf of the Authority
7 December 2000
The following correspondence was received and considered by the Authority when it determined this complaint: