Complaint under section 8(1C) of the Broadcasting Act 1989
Sunrise – item featured a woman who ran a sanctuary for ex-battery hens – included footage of caged hens – woman described condition of hens when they arrived at her property – allegedly unbalanced, inaccurate and unfair
Standard 4 (balance) – item focused on the experience of one woman – did not discuss a controversial issue of public importance – not upheld
Standard 5 (accuracy) – statement about uric acid presented as fact – inaccurate but immaterial in context of human interest story – point was that chickens were in poor condition as a result of being caged – not misleading to use footage of battery hens – not upheld
Standard 6 (fairness) – industry not an individual or organisation taking part or referred to – complainant did not take part and was not referred to – not applicable – not upheld
This headnote does not form part of the decision.
 An item on Sunrise, broadcast on TV3 at around 8.40am on 2 March 2009, featured a woman who provided a sanctuary for ex-battery hens given to her by animal liberation groups around Auckland. The presenters introduced the item by saying:
Presenter 1: ...If you get it right, your birds can enjoy a happy life of pecking, preening and
hopefully pushing out some eggs.
Presenter 2: Not all chooks are so lucky. Some are bred in horrific conditions, and some
never get to leave. ...Just a warning though, this story contains images of
battery hens which might upset some of our younger viewers.
 A reporter then introduced a woman named Ms Bishop, who had bought a property initially intending it to be a sanctuary for native birds, but "as soon as we learned about the situation of battery hens we decided we’d give some a home", Ms Bishop said.
 "This is what she's talking about," said the reporter, as footage of caged hens was shown, "Hens forced to endure life in a cage the size of an A4 piece of paper". Ms Bishop was shown saying:
When they come in they're in very bad shape. They’ve been living three to a cage this size [holding up hands], they haven't been able to move, they have been standing on one leg and then the other trying to relieve the pain and they actually don’t have any feathers because they’ve been stacked on top of each other and the uric acid from all the hens above them has burnt all their feathers away.
 The reporter stated that the "birds then go through an intensive rehab process, and in six weeks these rescued hens become normal, healthy chickens". The item concluded with the reporter, Ms Bishop, and then the Sunrise presenters discussing the benefits of keeping hens. The presenters provided email and website addresses in case viewers wanted more information about how they could help by adopting similar birds.
 The Egg Producers Federation of New Zealand (Inc) (EPF) sent a letter of complaint to TVWorks Ltd expressing concern about the "defamatory comments and unbalanced reporting" broadcast during Sunrise in the discussion on battery hens. EPF noted that the New Zealand poultry industry was strictly controlled by government regulation, and considered that the item "deliberately set out to malign the industry and to discredit us in the eyes of consumers". This was unfair, it argued.
 EPF believed that TVWorks should apologise if it could not provide evidence for the claims made in the programme. It outlined three main concerns. First, the Sunrise presenter had stated in the item that "not all chooks are so lucky. Some are bred in horrific conditions". EPF questioned where these chickens were, as part of its role was to address public complaints, and if Sunrise knew of a "rogue operator breeding in 'horrific conditions'", it would contact the relevant authorities and urge them to investigate. If Sunrise could not justify this claim, EPF considered it should apologise for "deliberately misleading New Zealand consumers".
 Secondly, EPF questioned why TVWorks had not raised its concerns with EPF or another industry representative. Thirdly, EPF wrote:
Why was your report unfair (emotive terms like "rescue", "normal", and "rehab" to generate public resentment), unbalanced (no comment sought from this office or any other industry representative) and inaccurate (one example - the claim of uric acid burning all the feathers off birds is ludicrous. It went unchecked)?
 The complainant nominated Standards 4, 5 and 6 and guidelines 4a, 4b, 5a, 5b and 5e of the Free-to-Air Television Code of Broadcasting Practice in its complaint. 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.
4a Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.
4b No set formula can be advanced for the allocation of time to interested parties on controversial public issues. Broadcasters should aim to present all significant sides in as fair a way as possible, it being acknowledged that this can be done only by judging each case on its merits.
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.
5a Significant errors of fact should be corrected at the earliest opportunity.
5b Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.
5e Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.
Standard 6 Fairness
In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.
 Having not received a response from TVWorks, EPF referred its complaint to the Authority under section 8(1C) of the Broadcasting Act 1989.
 EPF stated that immediately following the broadcast, it had asked TVWorks to identify the farms and locations where the "horrific conditions" existed, with the aim of investigating and, if necessary, taking action against its member operators. It had also complained about a lack of balance and accuracy, it said. One month later, TVWorks was still unable to identify any offending farmers or properties, EPF said, and it had failed to publicly acknowledge or correct the misleading claim made in the programme. EPF considered that TVWorks had "done nothing to reassure alarmed consumers and angry egg producers".
 By way of background, the complainant stated that EPF represented all of New Zealand's commercial egg producers, as membership was mandatory and automatic as soon as someone purchased more than 100 chicks. All aspects of bird welfare were regulated by independent government agencies, EPF said, and one of its roles was to investigate any breaches of industry standards.
 EPF maintained that Sunrise breached Standards 4 (balance), 5 (accuracy) and 6 (fairness), as well as guidelines 4a, 4b, 5a, 5b and 5e to those standards, for the following reasons.
 With reference to guidelines 4a and 4b to the balance standard, EPF argued that TVWorks had broadcast alarming and misleading claims, for example that the birds could not stand on two feet, and suffered uric acid burns, without making any approach to the industry for comment or reaction. It considered emotive references to "horrific" conditions and "rehab" for the chickens demonstrated a lack of impartiality, and that the item was unbalanced as viewers were misled and heard only one side of the story. Further, after EPF had complained, TVWorks showed no interest in correcting its mistakes. It had invited the industry to join a "live discussion", but EPF stated this was declined "as it was viewed as simply another platform for TVWorks to attack rather than correct its mistakes".
 Looking at accuracy, EPF maintained that TVWorks' "most serious error was the claim that uric acid burns all the feathers off hens". It said this was "unheard of within the industry". Further, Sunrise claimed that chickens were being "bred in horrific conditions", which had not been substantiated or corrected, EPF wrote. EPF considered that viewers had been unnecessarily alarmed by that claim, and also the use of unidentified footage showing instances of apparent animal abuse. This material, it said, "possibly dated and from overseas, gave viewers the mistaken impression that abuse is widespread in New Zealand. It is not." With regard to guideline 5e, EPF argued that TVWorks had made no attempt to verify the claims made by the animal "rescuer" featured in the item, and that she was not a reliable source.
 On 6 March, EPF had asked TVWorks to apologise, for misleading and alarming consumers on such a serious issue of animal welfare. Sunrise’s producer responded by inviting EPF to appear on the programme to discuss the issues raised. EPF declined. On 11 March, it emailed the producer for an update, and was told he was "investigating", although there was no request for industry assistance, EPF said.
 Later, on 25 March, having still received no response, EPF again emailed the producer, expressing concern about the lack of response, and also including a draft of what it considered would be an appropriate apology, asking that it be read during Sunrise. The producer responded saying the matter was still "under investigation" and that an apology would not be broadcast until that investigation was complete. EPF replied on 26 March, stating that it considered it unacceptable to broadcast misleading and inaccurate claims, and that TVWorks should investigate allegations before they are broadcast, not after the event. In his final email, EPF said, the producer announced that he was going on holiday.
 TVWorks stated that EPF's letter was not treated as a formal complaint because it was not submitted as a formal complaint; it said the complainant made it clear that it was expressing concern and not lodging a formal complaint. It noted the statutory timeframe for lodging a complaint had now passed, but said it would be happy to provide an informal response.
 EPF stated it was "satisfied the broadcaster was fully aware this matter should have been treated as a formal complaint". It said that "in all our contacts with TV3, we have repeatedly referred to possible breaches of (BSA) standards; namely fairness, balance and accuracy. To argue now over a technicality will only trivialise this very serious issue". EPF requested that its complaint be put before the Authority.
 The Authority determined that EPF's letter of 6 March 2009 to Sunrise constituted a valid formal complaint, for the following reasons.
 Section 6(1)(a) of the Broadcasting Act states that it is the duty of every broadcaster to:
...receive and consider formal complaints about any programme broadcast by it where the complaint constitutes, in respect of that programme, an allegation that the broadcaster has failed to comply with section 4 of this Act.
 The Authority considered that EPF's letter met the statutory requirements of a formal complaint. It referred to a particular episode of Sunrise and alleged that the programme was unfair, unbalanced and inaccurate. In the Authority's view, this was a clear reference to standards in the Free-to-Air Television Code.
 Even if there was any room for doubt, the Authority noted that EPF had received an email from the Sunrise producer on 25 March stating that "we are in the process of investigating your complaint". The Authority considers this clearly suggested that the complaint had been accepted and was being considered by the broadcaster, and that there was no obligation on EPF’s part to take any further action in light of this assurance.
 The Authority noted that section 5 outlines the principles upon which the Act is based, including:
(g) Most complaints that are capable of being resolved by an independent complaints procedure should not be required to be resolved by that procedure but should be capable of being resolved by proper consideration and proper response on the part of the broadcaster.
(h) The first consideration of a complaint should be prompt and without undue formality.
 Bearing in mind these principles, the Authority concluded that TVWorks had an obligation to consider EPF's complaint within 20 working days of receiving it. Because this did not occur, the Authority accepted the referral of EPF’s complaint under section 8(1C) of the Broadcasting Act 1989, and requested that the broadcaster provide submissions on the substance of the complaint.
 With regard to EPF’s argument that TVWorks "broadcast alarming and misleading claims... without making any approach to the industry for comment and reaction", TVWorks maintained that the focus of the story was Ms Bishop who ran a "sanctuary" for animals, and specifically the battery hens which she claimed she received from animal liberation groups. Information about the state of the health of the chickens when they arrived was relevant to the item, it said. However, TVWorks argued, the story's purpose was not to discuss the industry, the legality of caged farming operations, or other controversial issues regarding egg farming, but rather to tell the story of one woman who promoted the adoption of ex-battery hens.
 Even if the adoption of ex-battery hens could be considered a controversial issue of public importance, TVWorks wrote, it could see no reason for consulting "the industry" in the interests of balance.
 Turning to accuracy, TVWorks noted EPF's assertion that its "most serious error was the claim that uric acid burns all the feathers off the hens", which was "unheard of in the industry". It agreed with the complainant that "there is little evidence that uric acid burns the feathers off the hens although there is evidence that it does cause other health issues due to the increased ammonia in the atmosphere". However, the broadcaster emphasised that this comment was the opinion of Ms Bishop who was the focus of the story. It considered that in that context, the cause of the chickens' loss of feathers was immaterial. The overall point made by Ms Bishop was that the hens came to her "in very bad shape". TVWorks considered it was appropriate for Ms Bishop to express her opinion that part of the reason the hens were in "bad shape" was due to uric acid from the cages above.
 EPF also argued that the programme's claim that some chickens were being "bred in horrific conditions" had not been substantiated. TVWorks disagreed, noting that the statement in its entirety was, "Not all chooks are so lucky. Some are bred in horrific conditions", and based on the video evidence provided to the reporter. It considered such an introduction was relevant and fair given that the story was about the rehabilitation of hens at one sanctuary. TVWorks noted that the item did not state that all chickens are bred in those conditions, and that "self-evidently if none were bred in 'horrific conditions' there would be no unhealthy chickens for the woman to adopt". TVWorks said it was satisfied that the hens filmed were from battery farms.
 On that point, and responding to EPF's argument that the footage of the caged hens was unidentified and could have been dated or from overseas, the broadcaster said it had questioned the reporter about the source of the footage, and supported her and the producer's view that it was authentic. It said the source was quoted as follows: "The footage inside the battery farms was taken late 2008 and early 2009. It was shot in the North Island of New Zealand, all around the greater Auckland vicinity". TVWorks stated that further evidence of these sorts of caged farming conditions could be found on the SPCA’s website. It maintained that the footage had been obtained specifically for this story and that it was not archival or stock footage. Further, it was provided to the reporter "only upon the assurance of confidentiality" and TVWorks stood by the executive producer's decision to maintain that confidentiality.
 TVWorks disagreed that the use of the footage gave the impression that the abuse was widespread. It reiterated that the focus of the story was a particular woman who rehabilitated hens. The broadcaster considered "the footage was framed in a magazine-style item that promoted the adoption of such hens and was not, as [EPF stated], 'a deliberate attempt to malign a multi-million dollar industry and discredit egg producers in the eyes of consumers'". Accordingly, TVWorks declined to uphold the complaint that Standard 5 had been breached.
 Looking at fairness, TVWorks considered that the "emotive" phrases that caused concern for the complainant did not demonstrate partiality given the context of the programme and its subject matter. Their meaning was backed by the evidence gathered to support the item, it said, and the words and phrases were commonly used in relation to the subject matter being discussed.
 The broadcaster maintained that EPF had not provided any evidence that the item had made "mistakes". It noted that the producer had invited the complainant to appear on Sunrise to discuss the issues raised, and EPF declined. TVWorks concluded that this was a fair approach given that no material inaccuracies had been identified. It declined to uphold the Standard 6 complaint.
 The members of the Authority have viewed a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Standard 5 requires that news, current affairs and other factual programmes are truthful and accurate on points of fact, and impartial and objective at all times.
 EPF argued that the item was inaccurate in claiming that uric acid burned the feathers off caged hens. In the Authority’s view, while the statement was part of Ms Bishop's account of the state of the hens when they arrived at her property, it was presented unambiguously as a statement of fact. TVWorks has accepted that there is little evidence that uric acid burns off caged hens' feathers.
 However, in the context of a short human interest story focusing on one woman's experience with adopting ex-battery hens, the Authority is of the view that this point was not material. The overarching point being made was that the hens were in a bad condition when they arrived at Ms Bishop’s property, as a result of having been confined in cages. Viewers could see from the footage that some of the birds had lost feathers, irrespective of the cause. Accordingly, the Authority concludes that it would be unreasonable to limit the broadcaster’s right to freedom of expression by upholding this aspect of the accuracy complaint.
 EPF also argued that it was misleading to use unidentified footage of caged hens, as it created the impression that "abuse is widespread". In the Authority's view, the footage was used as an illustration of the sort of environment Ms Bishop’s hens had come from. While it may have been useful to have included a caption identifying the source of the images, the Authority has no reason to disbelieve the reporter's claim that they were obtained around the Auckland region in late 2008 and early 2009. The Authority therefore concludes that it was not misleading to include the footage in the item, and it declines to uphold this aspect of the complaint.
 Standard 4 requires broadcasters to make reasonable efforts, or give reasonable opportunities, to present significant points of view when controversial issues of public importance are discussed in a programme.
 In the Authority's view, the item focused on one woman’s personal experience with adopting ex-battery hens. The Authority has previously determined that programmes which focused on individual stories, even though they may be connected to a wider issue, did not discuss controversial issues of public importance – for example, one man’s experience with the public health system (Decision No. 2009-001) and one couple’s experience in being banned from Samoa (Decision No. 2008-046).
 The Authority therefore considers that this item, which told Ms Bishop's individual story, did not amount to a discussion of a controversial issue of public importance to which the balance standard applied.
 Accordingly, the Authority declines to uphold the Standard 4 complaint.
 Standard 6 requires that broadcasters deal justly and fairly with any person or organisation taking part or referred to in a programme. EPF argued that the item "deliberately set out to malign the industry and to discredit us in the eyes of consumers," which it considered was unfair.
 As EPF was not referred to in the item, the Authority assumes that the complainant was concerned with fairness to egg producers in general. However, it considers that it was not necessary, in the interests of fairness, for TVWorks to obtain comment from egg producers, as the item was narrowly focused on the story of one woman and her sanctuary for ex-battery hens. Further, as stated above under accuracy, there is no evidence to suggest that the footage of caged hens was misleading.
 The Authority therefore declines to uphold the fairness complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
19 August 2009
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Egg Producers Federation of New Zealand's letter of complaint to TVWorks Ltd – 6 March 2009
2. EPFs referral to the Authority attaching correspondence with Sunrise – 15 April 2009
3. TVWorks' comments on whether the complaint was formal – 22 April 2009
4. EPF's response to TVWorks' comments – 23 April 2009
5. TVWorks' response to the Authority – 15 June 2009
6. TVWorks' decision on the formal complaint – 16 June 2009