Skip to main content

Continental Car Services Ltd and Pitt and Television New Zealand Ltd - 2005-081

Members

  • Joanne Morris (Chair)
  • Paul France
  • Tapu Misa
  • Diane Musgrave

Complainants

  • Continental Car Services Ltd of Auckland
  • Richard Pitt of Auckland

Dated

28th November 2005

Number

2005-081

Programme

One News

Channel/Station

TV One

Broadcaster

Television New Zealand Ltd


Complaint under section 8(1)(a) of the Broadcasting Act 1989
One News – update on a previous item about a used Ferrari – item reported that Continental Car Services Ltd had “refused to hand over” a statement of compliance for the vehicle – item implied that CCS was engaging in restrictive trade practices – allegedly unbalanced, inaccurate and unfair – TVNZ upheld two points as inaccurate

Findings
Standard 4 (balance) – subsumed under Standards 5 and 6

Standard 5 (accuracy) – item contained several inaccurate and misleading statements – item as a whole was also inaccurate – action taken by TVNZ insufficient – upheld

Standard 6 (fairness) – unfair to CCS and Mr Pitt – upheld

Orders
Broadcast of a statement
Payment of legal costs of $5,283.00
Payment of costs to the Crown $2500.00

This headnote does not form part of the decision.


Broadcast

[1] On 9 May 2005, an item on One News at 6pm on TV One updated a previous item shown in February 2005 about a used Ferrari vehicle which could not be put on the road. Mr Jerry Clayton had approached Continental Car Services Ltd (CCS), the local Ferrari agent, seeking a statement of compliance with New Zealand frontal impact safety standards for his imported Ferrari. The May item reported that CCS had “refused to stamp it roadworthy”, and said:

The luxury import couldn’t be put on the road because local agents refused to stamp it roadworthy. But now a judge has found the issue wasn’t safety, it was protecting their own commercial interests.

Complaint

[2] Through their solicitor, CCS and Richard Pitt, the managing director of CCS, complained to Television New Zealand Ltd, the broadcaster, that the item was unbalanced, inaccurate and unfair. The complaint was directed towards specific parts of the item but also to the item as a whole.

[3] The complainants argued that the item’s introduction implied that CCS, while purporting to act in the interests of public safety, was in fact doing no more than seeking to eliminate a potential competitor from the market. They noted that the item subsequently described Mr Clayton as having called CCS’ actions “restrictive trade practices”.

[4] The complainants argued that the introduction breached standards of balance, accuracy, and fairness because CCS had not “refused” to stamp the car roadworthy. CCS did not have the ability to issue a certificate of compliance because it did not hold the relevant papers, and to do so would have jeopardised CCS’ status as an LTSA-approved certifier.

[5] Secondly, the complainants stated that CCS had never claimed the Ferrari was unsafe or unroadworthy. Such considerations were a matter for the LTSA only, they said. What CCS had said to Mr Clayton’s representatives was that:

  • It could not certify that his particular vehicle complied with the frontal impact standard because it held no documentation to confirm that.
  • There was no certainty that CCS could obtain such information from any factory-accredited international source, and even if it could, no sensible business case could be made for dedicating the considerable resources required to do so. That was even more so following the introduction of more exacting frontal impact standards in April 2002.

[6] The complainants contended that it was neither fair nor accurate to imply that CCS’ conduct fitted the description of “restrictive trade practices”. They referred to evidence given in court1 by Mr Pitt as to why CCS had declined to involve itself in obtaining the documents necessary to issue a certificate of compliance for Mr Clayton’s vehicle. In his testimony, Mr Pitt had specifically mentioned the “very onerous requirements” of the frontal impact standard introduced in April 2002, and CCS’ subsequent decision that it would no longer be involved in:

…further steps to process, collate, research requests from overseas…it is not part of our core business, we do not have the resources to devote to that and it is not something which we need to run our business here in New Zealand.

[7] The complainants noted that the item had not referred to any of these legitimate commercial concerns. Instead, they argued, by referring to “restrictive trade practices” the item had encouraged the inference that CCS acted exclusively out of a desire to “protect its own patch”. By failing to state the reasons why CCS was unable to issue the certificate and declined to assist further, the complainants said, the item was unbalanced, inaccurate and unfair.

[8] The complainants then referred to the following commentary by the One News reporter:

All used cars must have certificates proving they meet New Zealand frontal impact safety standards. Dealers are supposed to get the certificates from Ferrari’s local agent, Continental Cars, but it won’t hand them over…

[9] The complainants alleged that this statement had also breached standards of balance, accuracy and fairness. They wrote that it was wrong to say that dealers were “supposed” to get the certificates from CCS. The complainants quoted the following paragraphs from the LTSA website which states, in respect of any intended motor vehicle importer, that:

“Before you ship a vehicle to New Zealand we strongly advise you to get confirmation from an Entry Certifier that your Statement of Compliance lists standards that are accepted in New Zealand.

The manufacturer’s authorised representative is not obliged [to issue a Statement of Compliance].”

[10] The complainants submitted that there was no expectation that would justify the suggestion that a dealer was “supposed” to get such a certificate from CCS. Mr Clayton, they said, had been specifically placed on notice that there was no obligation on anyone’s part to assist him in certifying his vehicle. Further, the complainants added that basic enquiries by TVNZ would have shown that several other manufacturers’ representatives, such as Chrysler and Nissan, had made a similar policy decision that they would not be involved in used vehicle certification.

[11] Referring back to the reporter’s statement, the complainants also argued that the allegation that CCS “won’t hand [the certificates] over” was inaccurate. In the complainant’s view, the statement assumed that CCS held all the information necessary to issue a statement of compliance but had chosen not to. In fact, they maintained, CCS did not hold the information and could not have issued the certificate without significant cooperation from overseas parties. The complainants argued that the allegation was also unbalanced and unfair because no attempt had been made to record CCS’ position in that regard.

[12] The complainants also submitted that the following statement by the One News reporter was unbalanced, inaccurate and unfair:

Before the hearing CEO Richard Pitt told One News that Continental didn’t issue certificates of compliance because it had nothing to do with the second-hand car business, but in court Mr Pitt was presented with evidence that, in fact, he had certified a second-hand Ferrari three years ago.

[13] In the complainants’ view, the inference from that statement was that Mr Pitt had lied when previously interviewed by TVNZ’s reporter, and that the lie had been revealed as such in court. The complainants made the following points in regard to this:

  • Mr Pitt did not say, when previously interviewed, that CCS “had nothing to do with the second-hand car business”. CCS was, self evidently, a dealer in both new and second-hand vehicles.
  • Mr Pitt had actually said that issuing certificates of compliance was not part of CCS’ core business. Nor was there any reason why it should be involved in such a potentially time-consuming and legally onerous process when it was not something CCS needed to run its business.
  • Mr Pitt had certified a used Ferrari vehicle in 2002, but the company had since changed its policy. Any attempt at balance in the story would have referred to this change, which TVNZ’s reporter had heard Mr Pitt explain during his court testimony.

[14] In summary, the complainants maintained that there was never any “lie” of the sort which TVNZ had alleged. An accurate, balanced or fair report would have given Mr Pitt the opportunity to comment on why the change had occurred, they wrote. Further, the complainants asserted that the allegation had gone beyond a general attack on CCS to being an attack on Mr Pitt’s credibility. They argued that Mr Pitt was entitled to be treated justly and fairly by TVNZ.

[15] As well as addressing specific parts of the item, the complainants also alleged that, taken as a whole, the item was misleading, unbalanced and unfair. They made the following additional points:

  • Contrary to the impression created by One News, CCS was not preventing Mr Clayton from registering his car. It was in fact the decision of the LTSA to appeal the findings of Judge Kiernan that resulted in delays.
  • TVNZ’s item was unbalanced and unfair by implying that CCS should have rearranged its business to actively assist another motor vehicle dealer who was, or should have been, aware of the legislative requirements.

[16] CCS and Mr Pitt sought a retraction, apologies and costs in relation to the complaint.

 Standards

[17] TVNZ assessed the complaint under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice. These provide:

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.

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.

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.

Broadcaster's Response to the Complainant

[18] In its response, TVNZ acknowledged two “minor” inaccuracies in the One News item which were in breach of Standard 5 (accuracy). The first occurred, it said, in the introduction which stated that “now a judge has found the issue wasn’t safety”. Having read the judgment, TVNZ observed that while the judge put the CCS decision to decline a statement of compliance down to “commercial policy reasons” she at no point stated the issue was not one of safety.

[19] The second ambiguity, TVNZ wrote, had occurred in the use of the word “supposed” in the sentence which read “dealers are supposed to get their certificates from [CCS], but it won’t hand them over”. The broadcaster agreed that the sentence could be taken to imply that CCS was acting contrary to regulations in declining a statement of compliance. For that reason, TVNZ concluded that this too was a breach of Standard 5. However, it contended that the ambiguity was cleared up when the reporter stated, “under present law, Continental Cars doesn’t have to hand over the forms”.

[20] TVNZ said that it had pointed out these two inaccuracies to its News and Current Affairs department. However, the broadcaster maintained that overall the item was balanced, accurate and fair.

[21] In TVNZ’s view, there was no suggestion in the item that CCS or Mr Pitt had acted unlawfully. The emphasis in the item had been that the impasse over the Ferrari vehicle was due to the present state of the law, it said. The broadcaster observed that the Minister of Transport was quoted in the item as saying that no change in the law was necessary. TVNZ believed that the message about the current law was the message that most viewers would have received.

[22] TVNZ noted the complainant’s assertion that the wording of the item’s introduction had implied that CCS had the ability to issue a certificate, when it did not. The broadcaster argued that in fact Judge Kiernan indicated that CCS did have the ability to issue such a certificate. It did not consider that the brief news item was obliged to refer to the notes of evidence from the court hearing, or to spell out in detail what the “commercial interests” referred to by the judge were.

Referral to the Authority

[23] Dissatisfied with TVNZ’s response, CCS and Mr Pitt referred their complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. The complainants enclosed the notes of evidence in the case of Kiwi Auto Exports Pte Limited v Director of Land Transport Safety, and the reserved decision of Judge Kiernan in that same case.

[24] While TVNZ had upheld their complaint in part, the complainants did not believe the substance of their complaints had been adequately addressed. They challenged the broadcaster’s conclusion that the essence of the item was balanced, accurate and fair.

[25] Referring to TVNZ’s concession that the phrase “dealers are supposed to get their certificates from [CCS]” was inappropriate, the complainants contended that TVNZ’s concession was based on the belief that the words could be taken to imply that they “were acting contrary to regulations”. Their complaint had been more broadly based than this, the complainants argued.

[26] Further, the complainants referred to TVNZ’s statement that Judge Kiernan had indicated that CCS did have the ability to issue a statement of compliance. They argued that this was not an accurate reflection of the judge’s decision, adding:

The point that Judge Kiernan makes in paragraph 63(r) is that, exercising her judicial discretion, when a vehicle manufactured in June 2000 had, independently, been shown to be compliant, albeit not on the basis of any certificate issued by CCS, then in fairness, a vehicle manufactured in 1999 should also be certified given that “there is no evidence that the model has been varied at all”.

[27] The complainants maintained that the paragraph did not suggest that CCS had the “ability to issue such a certificate”. Without the relevant papers, which it was not holding and which it did not regard itself as under any obligation to try and obtain, CCS was unable to do so. The complainants argued that TVNZ’s misunderstanding of the judge’s decision appeared to have altered its assessment of the complaint.

Broadcaster’s Response to the Authority

[28] TVNZ made no further substantive submissions in response to the referral. It noted, however, that the complainant had not provided the notes of evidence to TVNZ when it made the original complaint, and accordingly asked the Authority to disregard that evidence. It pointed out that the notes of evidence were not normally available to the news media, unless a specific application to the court was made.

[29] It concluded that in any event the notes were irrelevant as Judge Kiernan’s decision had been released, and formed the basis for the item.

[30] TVNZ also advised that Land Transport New Zealand (LTSA) had lodged an appeal against Judge Kiernan’s decision.

Complainant’s Final Comment

[31] In response, the complainants noted that while they had not sent TVNZ copies of the notes of evidence, they had referred specifically to them in the formal complaint, and TVNZ could easily have sought a copy. They submitted that the Authority was entitled to refer to the notes of evidence.

Authority's Determination

[32] The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Preliminary matters

[33] In their referral, the complainants provided the Authority with the notes of evidence in the case of Kiwi Auto Exports Pte Limited v Director of Land Transport Safety, and the reserved decision of Judge Kiernan in that same case. TVNZ has asked the Authority to disregard the notes of evidence, whereas the complainants argued that the Authority was entitled to consider them.

[34] In this instance, it is not necessary for the Authority to make a finding as to whether it is able to consider the notes of evidence. The Authority considers that this complaint can be determined solely by reference to the other material provided.

[35] In its response to the complaint, TVNZ stated that the item was a follow-up of an item screened in February 2005. It assessed the current item in the context of the earlier one. The Authority does not agree with this approach. The February item was broadcast three months earlier, and the Authority considers that few viewers would have recalled any background it provided. The Authority accordingly considers that the item complained of must be assessed on its individual merits.

Standard 4 (balance)

[36] The requirement for balance applies to items which deal with “controversial issues of public importance”. The Authority notes that while this item raised such an issue – difficulties in obtaining safety certificates for imported second hand cars – this general problem was not the focus of the item. Rather, it focused on Mr Clayton’s personal story about getting his Ferrari registered, and the part CCS had played. As such, the Authority considers that the complainant’s concerns are best dealt with under Standards 5 and 6 below.

Standard 5 (accuracy)

[37] The complainants have argued that five aspects of the item were misleading and inaccurate. The Authority agrees that each of these individual features of the item was in breach of Standard 5, and has articulated its reasons for this below. However, the Authority initially wishes to comment that the cumulative effect of these individual inaccuracies amounted to an item that was fundamentally flawed.

[38] In the Authority’s view, the item gave an overall impression that CCS had prevented Mr Clayton from registering his vehicle because it had refused to give him a safety certificate which it already had in its possession. The item implied that, in doing so, CCS was engaging in “restrictive trade practices”. The Authority finds that this overall message was significantly inaccurate.

[39] The Authority now turns to consider the specific inaccuracies identified by the complainants.

Statement that CCS had “refused to stamp [the Ferrari] roadworthy”

[40] In the Authority’s view, the idea of “stamping” the car as roadworthy gave the impression that the process required little or no effort on CCS’ part. This statement implied that CCS had the appropriate safety certificate in its possession, but it had refused to give it to Mr Clayton.

[41] The item failed to explain that CCS did not hold the relevant papers, that it would have to go through a lengthy process to obtain them, and that it currently did not hold the relevant information upon which to issue a certificate. Further, the Authority acknowledges CCS’ argument that had it done so, its position as an LTSA-approved certifier would have been in jeopardy.

[42] The Authority accepts that, rather than “refusing” to issue a certificate (which could be seen as unreasonable), CCS was not in a position to do so without taking further steps, which it was not required to do. It therefore finds that the item was inaccurate in this respect.

“Dealers are supposed to get the certificates from [CCS]…but it won’t hand them over”

[43] The Authority notes that TVNZ upheld part of the complaint relating to this statement, but only in relation to the specific use of the word “supposed”. TVNZ found that the word created the misleading impression that CCS was acting contrary to regulations.

[44] The Authority agrees with the complainants that this was a narrow interpretation of their complaint. The Authority considers that the statement also erroneously implied that CCS had a certificate in its possession and had simply chosen not to give it to Mr Clayton.

[45] In addition to this, the Authority finds that the statement inaccurately suggested that the only way to obtain a safety clearance was through CCS. The complainants have referred to advice from the LTSA that “the manufacturer’s authorised representative is not obliged” to issue a statement of compliance. In the absence of any challenge to this evidence from TVNZ, the Authority accepts that there are other avenues through which to obtain safety approval for a second-hand imported vehicle.

“Jerry Clayton says the current law encourages restrictive trade practices”

[46] The complainants objected to the inclusion of this statement from Mr Clayton. The Authority finds that One News was entitled to broadcast Mr Clayton’s opinion in this regard, and notes that an opinion is not a “point of fact” to which Standard 5 applies. However, the Authority considers that the tenor of the item as a whole also gave the impression that CCS was engaged in restrictive trade practices. For example, the Authority notes the following part of the item’s introduction:

But now a judge has found the issue wasn’t safety, it was protecting their own commercial interests.

[47] Having read the court judgment, the Authority observes that the judge actually found that CCS had declined to issue the certificate for “commercial policy reasons”. There is a fundamental difference between CCS engaging in illegal restrictive trade practices, and having a legitimate policy not to assist with issuing safety certificates because it is not a core part of their business. The Authority has been provided with no evidence to suggest that CCS was involved in questionable business practices, and therefore it finds that the impression given in the item was misleading and inaccurate.

Statements in the item implying Mr Pitt had lied about CCS’ involvement with second-hand cars

[48] The Authority notes the following statement by the reporter in the item:

Before the hearing CEO Richard Pitt told One News that Continental didn’t issue certificates of compliance because it had “nothing to do with the second-hand car business”. But in court, Mr Pitt was presented with evidence that in fact he had certified a second-hand Ferrari three years ago.

[49] The Authority finds that the only interpretation available to viewers was that Mr Pitt had lied in his previous statement to TVNZ, and was then revealed as having lied at the court hearing. The item did not explain that CCS had changed its policy since certifying the vehicle three years earlier.

[50] The Authority recognises that CCS is a dealer in both new and second-hand vehicles. In light of this, the Authority accepts the complainants’ assertion that Mr Pitt would not have made a statement that CCS had “nothing to do with” second-hand cars. It concludes that the impression given by the item that Mr Pitt had lied, combined with the failure to mention CCS’ policy change, was misleading and inaccurate.

Impression that Mr Clayton was currently delayed in registering his car due to CCS’ actions

[51] The Authority agrees that the item clearly implied that Mr Clayton was currently delayed in registering his car due to CCS’ actions, and finds that this was inaccurate. The reporter stated:

12 months after arriving in New Zealand this Ferrari is still gathering dust. That’s despite a judge ruling that it should still be on the road.

[52] The item then went on to discuss CCS’ involvement with the Ferrari, implying that the judge’s ruling centred around CCS’ decision not to give Mr Clayton a safety certificate. To the contrary, the Authority notes that the judgment related to Mr Clayton’s appeal against the LTSA’s decision not to grant his vehicle an exemption certificate. It was in fact the decision of the LTSA to appeal Judge Kiernan’s ruling that was now causing the delay to Mr Clayton, but this was not explained in the item.

[53] Although the item ended with the statement that “One News understands that LTNZ2 is considering going back to court to have the decision overturned”, this passing reference was not sufficient to correct the clear impression given by One News that CCS was the cause of the delay.

[54] In conclusion, the Authority notes that it has upheld five aspects of the item as being inaccurate. It also considers that the item as a whole was misleading, inaccurate and in breach of Standard 5.

Standard 6 (fairness)

[55] The Authority also finds that Standard 6 was breached in relation to CCS. One News implied that the company was engaged in restrictive trade practices and had declined to issue a certificate in order to protect its own interests. Having already found that this was misleading and inaccurate, the Authority also considers that CCS was treated unfairly in the item.

[56] For the same reasons as outlined in paragraphs [48] to [50] above, the Authority also finds that the item was unfair to Mr Pitt. The item clearly implied that Mr Pitt had lied about “having nothing to do with” second-hand cars. The Authority accepts the complainants’ evidence that it is highly unlikely that he would have made such a statement given CCS’ obvious association with second-hand cars. In the Authority’s view, these references in the item unfairly damaged Mr Pitt’s credibility, and were in breach of Standard 6.

Action Taken

[57] The Authority notes that TVNZ upheld two parts of the complaint under Standard 5 (accuracy). TVNZ upheld the complaint about the introduction to the item where it was stated that “now a judge has found the issue wasn’t safety”. TVNZ also upheld part of the complaint relating to the statement that “dealers are supposed to get the certificates from [CCS]”, but only in relation to the specific use of the word “supposed” (refer to paragraph [19]).

[58] After upholding these two points, TVNZ advised the complainants that “those inaccuracies have already been pointed out to the News and Current Affairs Department”.

[59] The Authority has upheld a number of significant breaches of the accuracy standard, and it has found that the item was unfair to both CCS and Mr Pitt. In the Authority’s view, the item as a whole created a misleading and unfair impression of both the complainants. Noting this, the Authority concludes that the action taken by TVNZ in respect of this complaint was manifestly inadequate in all the circumstances.

Bill of Rights

[60] For the avoidance of doubt, the Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching this determination. For the reasons given above, the Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act.

 

For the above reasons the Authority upholds the complaint that the broadcast of an item by Television New Zealand Ltd on One News on 9 May 2005 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[61] Having upheld the complaint, the Authority may make orders under ss 13 and 16 of the Broadcasting Act. It invited submissions on orders from the parties.

Submissions

[62] Through their solicitor, CCS and Mr Pitt submitted that TVNZ should be ordered to broadcast a statement summarising the Authority’s decision. In particular, the complainants argued that the statement should:

  • be broadcast during One News at 6pm, no later than two weeks after the publication of the Authority’s decision
  • acknowledge that the item was in “significant breach” of Standard 5 in five individual respects
  • acknowledge that the item was unfair to CCS and Mr Pitt, and in breach of Standard 6, insofar as it implied that CCS had engaged in restrictive trade practices and that Mr Pitt had “lied” in his interview with TVNZ
  • acknowledge that the item, taken as a whole, created a misleading and unfair impression
  • acknowledge that TVNZ’s initial response to CCS and Mr Pitt was “manifestly inadequate”
  • contain a retraction and an apology to CCS and Mr Pitt.

[63] In addition, the complainants submitted that they should be entitled to their reasonable costs pursuant to s.16(1) of the Broadcasting Act. Because of the seriousness of the allegations, they said, legal advice and assistance was entirely appropriate. CCS and Mr Pitt enclosed lawyers’ accounts amounting to $10,135 plus GST.

[64] Finally, the complainants submitted that TVNZ should pay costs to the Crown under s.16(4) of the Act. They did not specify a particular amount, but emphasised the extent of the item’s inaccuracy and unfairness, and the “manifestly inadequate” initial response of TVNZ.

[65] With respect to a statement, TVNZ noted that over three months had elapsed between the broadcast in May and the present date. It asserted that the Authority (in paragraph [35] of the decision) had indicated the difficulty, after the passage of time, in making coherent any account of the events referred to.

[66] TVNZ submitted that it was inappropriate to seek legal costs for a formal complaints procedure which did not require legal input. The broadcaster pointed out that seeking legal advice was a matter of choice, and that most complainants did not incur any legal fees. TVNZ wrote that the result would presumably have been the same if the complaint had been pursued without legal advice. It argued that a reimbursement of costs which the complainant had chosen to incur (as distinct from being required to incur) was unjust and inappropriate.

[67] In response to TVNZ’s submissions, CCS and Mr Pitt acknowledged that some viewers may have forgotten the details of the May item. However, they submitted that others would remember the item, particularly those with an interest in motor vehicles and actual or potential customers of CCS. The complainants argued that viewers did not need to recall the detail of the item in order to understand that a company or individual had not been treated appropriately and that a broadcaster had breached the standards.

[68] Further, the complainants noted that the initial complaint and subsequent referral to the Authority had been made quickly. Noting that it was unlikely that many matters would reach the Authority on a faster timetable, the complainants argued that TVNZ’s comments in relation to viewer recall would probably apply to every case before the Authority. They pointed out that, despite this, the broadcast of a statement was clearly contemplated as an appropriate remedy by s.13 of the Act.

[69] CCS and Mr Pitt also argued that they were entitled to reasonable legal expenses, especially in light of the “seriously shoddy piece of journalism” which had serious implications in terms of CCS’ reputation and Mr Pitt’s personal credibility.

[70] The complainants later provided a transcript of a later One News item about Mr Clayton’s Ferrari which was broadcast on 22 October 2005. The item again referred to CCS, and the complainants argued that this proved the matter was one of topical interest. They submitted that a statement would be particularly appropriate in light of this.

[71] In response, TVNZ argued that it would be unfair of the Authority to take into account the 22 October item because it was not the subject of the formal complaint. The broadcaster also said it would be unfair because the Authority had ruled against accepting TVNZ’s argument about the relevance of an earlier item in paragraph [35] of the decision.

[72] CCS and Mr Pitt rejected TVNZ’s comments. As a matter of logic, they said, the Authority must be entitled to take into account the fact that public interest had been reignited when TVNZ had alleged that a statement would be inappropriate on account of the time delay.

Authority’s decision on orders

[73] Having taken into account the submissions made by both parties, the Authority determines that it should make an order requiring TVNZ to broadcast a statement which comprehensively summarises the Authority’s decision. It does not consider that an order of an apology is required in this case.

[74] The Authority disagrees with TVNZ that a statement would be inappropriate due to the passage of time since the original broadcast. However, it declines to take into account the 22 October One News item referred to by the complainants, as that item is not the subject of the formal complaint.

[75] The Authority notes that CCS and Mr Pitt have specified a number of acknowledgements which they would like TVNZ to make in a broadcast statement. In the Authority’s view, these points will naturally be covered in a comprehensive summary of its decision. Further, the Authority sees no reason to depart from its usual practice by which the broadcaster is required to draft a statement for the Authority’s approval.

[76] Costs to the Crown are generally imposed to mark the Authority’s disapproval of a serious departure from broadcasting standards. Taking into account all the circumstances of this case, including the fact that TVNZ’s initial response largely failed to address the substance of CCS’ complaint, the Authority considers that such an award is appropriate on this occasion. It determines that $2,500 is an appropriate award.

[77] The Authority notes TVNZ’s argument that it would be inappropriate to award legal costs for a formal complaints procedure which did not require legal input. In determining whether to order a contribution towards legal costs, the Authority does take into account the relatively straightforward complaints process. However, the Authority considers that it is not unreasonable for a complainant to be concerned about protecting its commercial reputation and to seek legal advice in pursuing its complaint.

[78] In line with previous decisions, the Authority awards the full amount of legal costs only in exceptional circumstances. It does not consider that the circumstances of this complaint justify an award of full costs. Nevertheless, because CCS and Mr Pitt were successful on several aspects of their complaint, the Authority is of the opinion that a significant contribution towards their legal costs is appropriate. It considers a reasonable award in this case to be half of the fees sought by CCS and Mr Pitt, i.e. $5,283.

Orders

The Authority makes the following orders pursuant to s.13 and s.16 of the Broadcasting Act 1989:

  1. Pursuant to s.13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast a statement approved by the Authority. That statement shall:
    • be broadcast within one month of the date of this decision during One News, on a date to be approved by the Authority
    • contain a comprehensive summary of the Authority’s decision.
  2. Pursuant to s.16(1) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainants costs in the amount of $5,283, within one month of the date of this decision.
  3. Pursuant to s.16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $2,500, within one month of the date of this decision.

The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.

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

Signed for and on behalf of the Authority

 

Joanne Morris
Chair
28 November 2005

Appendix

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

  1. Continental Car Services Ltd and Richard Pitt’s formal complaint – 23 May 2005
  2. TVNZ’s decision on the formal complaint – 20 June 2005
  3. CCS and Mr Pitt’s referral to the Authority – 11 July 2005
  4. TVNZ’s response to the Authority – 8 August 2005
  5. CCS and Mr Pitt’s final comment – 15 August 2005
  6. CCS and Mr Pitt’s submissions on orders – 26 September 2005
  7. TVNZ’s submissions on orders – 6 October 2005
  8. Further correspondence from CCS and Mr Pitt – 10 October 2005
  9. Further correspondence from CCS and Mr Pitt – 28 October 2005
  10. Further correspondence from TVNZ – 7 November 2005
  11. Further correspondence from CCS and Mr Pitt – 10 November 2005

1In the matter of an appeal against the decision of the Director of Land Transport Safety to decline an application for an exemption from the requirements of Land Transport Rule: Frontal Impact 2001. The application was made by Kiwi Auto Exports PTE Ltd in relation to the Ferrari vehicle discussed in this BSA decision.

2Land Transport NZ is a new government agency formed on 1 December 2004 from the merger of Transfund New Zealand and the Land Transport Safety Authority by the Land Transport Management Amendment Act.