BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
Target – conducted a hidden camera trial of six cafés in Auckland – stated that food sample from Café Cézanne had tested positive for faecal coliforms which “could make you very sick” – sample had been incorrectly labelled and it was later discovered that it did not come from Café Cézanne – in the meantime broadcaster broadcast an apology (in following episode) that did not exclude possibility that sample came from Café Cézanne – both programmes allegedly inaccurate and unfair

Findings
Standard 5 (accuracy) – serious allegation that Café Cézanne’s food was contaminated with faecal coliforms was broadcast without verifying or checking results – sample did not come from Café Cézanne – apology was also inaccurate and inadequate to rectify the breach – upheld

Standard 6 (fairness) – broadcaster did not give the complainants a fair and reasonable opportunity to respond because they were not given information sufficient to allow them to investigate the allegations – broadcaster made no effort to check its information after Café Cézanne disputed the allegations – broadcaster failed to discover that the sample could not have come from Café Cézanne – allegations were broadcast anyway and the results were not explained to viewers – complainants treated unfairly in relation to programme and apology – upheld

Orders
Section 13(1)(a) – broadcast (on television and radio) and publication in The New Zealand Herald of a statement and apology

Section 16(1) – legal costs to the complainants $28,068.75

Section 16(4) – costs to the Crown $10,000 ($5,000 for each broadcast)

This headnote does not form part of the decision.

Broadcasts

[1]   During an episode of Target, broadcast on TV3 at 7.30pm on 16 June 2009, the presenter summarised the results of a hidden camera trial in which an actor ordered a coffee and a hot chicken sandwich in six different cafés in Auckland. The actor also asked one of the wait staff for directions. Each café was given a rating for the quality of the food, the quality of the service, the hygiene of the premises, and the price, and then given an overall score out of 10. A food sample from each café was tested for the presence of bacteria such as campylobacter, E. coli and salmonella, as well as faecal coliforms which the presenter said “could make you very sick”, and the results were taken into account in calculating the score for each café.

[2]   The following was said about Café Cézanne:

Presenter:
Our last stop tonight, Café Cézanne in Ponsonby. After placing the order our actor asks for directions.

Staff:
It’s on your right as you hit the bottom.

Presenter:
Good effort. Next the coffee arrives in 3 minutes and then the food. And although it looks good the chicken is cold, the potatoes undercooked. Our actor was also shocked to find that you had to walk through the kitchen to get to the toilets, which are pretty unpleasant. There are holes in both sides of the wall and the sink is not clean, and as we exit the waitress drops a piece of cutlery onto the floor and then just puts it back in with the clean stuff.

And the hygiene horrors didn’t stop there. The Lab detected faecal coliforms in the chicken sandwich sample.

There’s no way faecal coliforms should’ve been present in the food. Contamination could have occurred through using rotten salad ingredients, through contaminated water or somebody not washing their hands after going to the toilet. Needless to say, if eaten it could potentially make someone very sick. Symptoms [of food poisoning] can include stomach pains, vomiting and bloody diarrhoea.

To the overall results, well the food quality was very poor. We paid $21 for a meal that was contaminated. We’ve given Café Cézanne a final score of 2 out of 10. They respond.

Cézanne: [read by Target]
We are mortified to hear about the presence of faecal coliforms in our food and will be taking all possible steps to address and rectify the issues raised.

[3]   The following week, at the end of the episode of Target broadcast on 23 June 2009 on TV3 at 7.30pm, the presenter said:

In the Target episode that aired on the 16th of June we announced that lab results indicated that a food sample taken from Café Cézanne had a high faecal coliform count. Due to a human error by a former Target staff member coding the results, we cannot confirm which café produced this high faecal coliform count. Target regrets this and apologises to Café Cézanne’s staff and its owners.

Timeline of Events

[4]   The following timeline of events leading up to the 16 and 23 June broadcasts is presented so that readers can readily understand the issues that arose from them:

9 June 2009 – Café Cézanne received a letter from Target stating that a food sample (a chicken sandwich) that had been purchased from their café on 29 May was tested and found to be contaminated with faecal coliforms. It also outlined matters that had been captured on hidden camera. Target invited comment by 4pm on 11 June.

11 June 2009 – Café Cézanne emailed Target addressing matters in the hidden camera footage, and asking for a copy of the laboratory results.

12 June 2009 – The laboratory results were delivered to Café Cézanne. The results from two cafés were included on the result sheet – labelled Sample 7 and Sample 8 – and Sample 7 returned the high faecal coliform count. The results stated that the laboratory had received the samples on 27 May and tested them on 28 May. Café Cézanne wrote to Target pointing out that its 9 June letter had said that the Café Cézanne sample had been collected on 29 May 2009, and that their till receipts confirmed that a chicken sandwich was purchased on that date. Café Cézanne said that it was obvious that the food with the high faecal coliform count could not have come from their café.

15 June 2009 – Target replied to Café Cézanne’s letter, stating that the sample from their café had actually been purchased on 27 May and was Sample 7 on the laboratory result sheet. Target said that their actors had dined at the café on 29 May and ordered exactly the same meal. The hidden camera footage was taken during the 29 May visit.

16 June 2009 – Target was broadcast at 7.30pm on TV3. The programme said that Café Cézanne’s food was contaminated with faecal coliforms.

18–19 June 2009 – Café Cézanne made several phone calls to Target asking if it had made a mistake. Target maintained there was no error. Café Cézanne phoned SGS Laboratories which tested the chicken sandwich but they were referred back to Target. Café Cézanne requested evidence of the original food sample purchase as their till tapes did not show any chicken sandwich purchases on 27 May. Later in the day they were advised that the director was away and had the file and receipt with her, and the receipt would be sent later in the afternoon.

20 June 2009 – Target met with Café Cézanne and explained a mistake had been made, and they now could not be sure which café’s food had returned the high faecal coliform count. Target offered Café Cézanne a public apology on TV3 news and in The New Zealand Herald, plus promotion on radio.

22 June 2009 – Café Cézanne received a letter from Target admitting the mistake and offering to “mitigate any possible harm done” to their business. The letter described the mistake as an “inadvertent human error” and “a coding mistake”.

23 June 2009 – After some correspondence, the statement was broadcast on Target at 7.30pm on TV3 that “we cannot confirm which café produced this high faecal coliform count”.

Complaint

[5]   On 13 July 2009, the owners of Café Cézanne, Jackie Wilkinson and Rod Williams made a formal complaint to TVWorks Ltd, the broadcaster, alleging that the 16 and 23 June episodes of Target were inaccurate and unfair.

16 June programme

[6]   The complainants asserted that the programme contained a “false and defamatory allegation that a sample of food taken from our Café contained faecal coliform”. They said that the sample did not come from Café Cézanne, and Target accepted that it could not prove that it had. They argued that a number of other aspects of the programme were also inaccurate or misleading, such as criticisms of the quality of the food and the state of the bathrooms.

[7]   The complainants argued that the programme producers had given them inaccurate details of the allegations made against the café, which meant they could not verify the allegations within the 48 hours they were given to respond. They considered that “in this situation, it is difficult for a person to do anything except to treat the allegations as valid and try to mitigate the damage through a response” such as the one they had given. They had made attempts to gather more information from Target’s production company, and said that it was only on 19 June, after the programme had aired, and after they requested the receipt for the food sample, that the production company realised its “monumental error”.

[8]   The complainants considered that it was unfair that the programme broadcast only a single sentence of their response in relation to the faecal coliform issue, when that was not the only inaccurate statement made about them in the programme and their response had addressed a number of other issues. They concluded by saying that the Target programme had jeopardised their business and their livelihood, and had caused significant financial loss. They were deeply embarrassed, they said, and their professional reputations and the reputation of the café had been damaged.

23 June programme

[9]   Ms Wilkinson and Mr Williams complained about “the timing, content and length of the ‘apology’”, and “the conduct of the broadcaster and producer of Target in relation to the ‘apology’ and how they treated us”. They considered that the mistake in the 16 June programme was the worst possible thing that could be said about a café, and that it was unforgiveable. The complainants said that the apology should have redressed the actions of Target, but instead “we feel cheated and manipulated”.

[10]   The complainants argued that the apology breached the accuracy standard because it was not broadcast at the earliest opportunity. They noted that Target discovered the mistake on 19 or 20 June, but did not apologise until 23 June.

[11]   The complainants also considered that the apology was misleading in referring to “a human error by a former Target staff member coding the results” because the mistakes made were much more than a coding error. Further, the apology did not state that the sample had been wrongly attributed to Café Cézanne, which they alleged the production company had promised to include in the apology. Instead, it only stated that Target could not identify which café the sample had come from. The complainants considered that it was unfair to broadcast the apology without their input and in a manner that was inconsistent with the apology offered.

[12]   Turning to fairness, the complainants maintained that Target had tried to manipulate them to accept a position where no apology was made, on the basis that additional media coverage would resolve the mistake.

[13]   The complainants reiterated that the programmes had had a seriously adverse impact on their reputations.

Standards

[14]   Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice are relevant to the determination of this complaint. They provide:

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 Complainants

Standard 5 (accuracy)

16 June programme

[15]   Looking first at accuracy, the broadcaster said:

There is no dispute that the producers of the programme inadvertently made an error that meant the café from which the faecal coliform originated could not be identified and as a result, TV3 wrongly broadcast that “The lab detected faecal coliforms in the [Café Cézanne] chicken sandwich sample”.

[16]   TVWorks said that it accepted the production company’s assurances that it was a genuine error and there was no attempt to cover up the mistake once it was discovered. It maintained that this was a “unique and most unfortunate human error”. It said it sympathised with the complainants given the consequences of the mistake. The broadcaster noted that the producers had acknowledged the error both in person and in writing and made various efforts to compensate the complainants, including the offer of an apology statement, which now formed the basis for the complaint about the 23 June item.

[17]   In conclusion, TVWorks said it “unreservedly accepts the programme was inaccurate and so upholds this aspect of [the] complaint and apologises for the distress and harm that the broadcast of the error caused”.

23 June programme

[18]   The broadcaster maintained that the earliest opportunity was generally held to be at the same time as the original broadcast in order to reach the same audience that would have seen the error. It said that with that in mind, the apology was broadcast on the next episode of Target. The production company said:

The ratings on the night and at the time the apology was broadcast were identical to the ratings when the original story was broadcast the week before; it was also screened at the same place in the programme where Café Cézanne featured the previous week.

[19]   TVWorks disagreed that the apology did not truly reflect the error that occurred. TVWorks maintained that the direct apology to Café Cézanne made it clear to viewers that Target genuinely regretted attributing the contaminated food to the complainants. The broadcaster considered that the average viewer would have been left with the impression that Target made a mistake in their assessment of Café Cézanne.

[20]   The broadcaster concluded that while a mistake had caused an inaccurate statement to be broadcast, it was corrected at the earliest possible opportunity with an appropriate statement and apology to Café Cézanne. TVWorks maintained that it had acted promptly and responsibly once the error was discovered and that therefore it had satisfied the requirements of Standard 5.

Standard 6 (fairness)

16 June programme

[21]   TVWorks maintained that “this [error] is the first of its kind in the history of the series. It is apparent that the error was not systemic but a one-off occurrence as a result of human error”. TVWorks accepted that the production company’s procedures and protocols and its offer to review its processes were adequate to ensure a similar error would not happen again.

[22]   TVWorks acknowledged that the original letter from the production company to the complainants could have been clearer about the methodology for the testing. However it was satisfied that the production company had provided a full and accurate explanation of the trial and the dates concerning Café Cézanne. It said that the sample from Café Cézanne had been obtained on 26 May at 12.08pm, testing of the samples commenced on 28 May, and the reports were completed on 3 June. On 29 May two Target employees again visited the café to obtain the hidden camera footage.

[23]   TVWorks noted that the lab results had been delivered to the complainants the day after they requested them. It considered that this was a “prompt and cooperative” response to their request. With regard to the complainants’ point that they had been given only 48 hours to respond, TVWorks asserted that this was the timeframe that had been used by the programme for 11 years, and that had generally proved to be adequate to allow for a proper response.

[24]   TVWorks said that, when choosing an extract of the complainants’ response to broadcast, Target considered which issue would be at the forefront of viewers’ minds, which in this case was the faecal coliforms. It said that, given the time limitations, it broadcast the response to the most serious issue.

23 June programme

[25]   TVWorks said that the efforts made to rectify the situation were genuine, were outlined both in person and in writing and provided the complainants with ample opportunity to consult with advisors. The production company stated that, upon learning of the error, two Target producers met with the complainants within 24 hours. They explained the error and suggested two courses of action: either that Target would make a formal apology the following Tuesday during Target and a press release would be issued, or, there would be a promotional campaign run across MediaWorks’ radio networks.

[26]   The production company received a letter from the complainants’ lawyers advising that they wished to proceed with the apology and press release. The production company said that, at the lawyer’s request, “the reference to Café Cézanne in the headline to the release and a sentence [were] removed from the release”. It therefore considered that the complainants had input in the apology and press release.

[27]   The apology screened during Target on 23 June and the press statement was released at 8pm the same night. Both stated that a Target staff member had made an error and as a result Target was unable to confirm which café had produced the high coliform count. Both also stated that the production company apologised for the mistake. The producers considered that the apology clearly met the terms promised in correspondence with the complainants, and accurately reflected the situation that had occurred. In that correspondence, dated 22 June, the producer said:

Any such press release and apology would need to mention the finding of faecal coliform in a food sample gathered for the programme, and state that it was wrongly attributed to Café Cézanne. It would also mention that due to a procedural error it’s not possible to identify which restaurant the contaminated sample came from. Unfortunately this does not entirely erase the association between Café Cézanne and a contaminated food sample, but you will appreciate that the correction published must be an accurate version of events.

[28]   TVWorks accepted that it was inaccurate and unfair to attribute the contaminated sample to Café Cézanne but considered that “due to the prompt and appropriate nature of the correcting statement and apology... there has been no continuing breach of either the accuracy or the fairness standards”. It emphasised that the production company had reviewed its processes to ensure checks were done to prevent future mistakes and had reinforced the importance of adhering to protocols when labelling samples that were going to the lab for testing.

[29]   Further, the broadcaster pointed out that the error had resulted in the termination of the employment of the person responsible for the mistake. It said it accepted the production company’s genuine regret for the consequences of the broadcast and considered that the producers and the broadcaster had acted responsibly in acknowledging the mistake and trying to limit the damage caused. TVWorks was of the view that these actions had fulfilled the requirements of the Free-to-Air Code and that no further action was required.

Referral to the Authority

[30]   Dissatisfied with TVWorks’ response, the complainants referred their complaints about the 16 June and 23 June programmes to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

16 June programme

[31]   The complainants disagreed that the mistake was unique and a human error. They maintained that the production company “put a person in charge of the Café Cézanne story who had not done this before”, and considered that someone should have checked that person’s work. They noted that TVWorks had not referred to any “second check or verification procedure”. The complainants reiterated their view that the mistake was “grossly negligent and reckless in the extreme”. The production company had failed to check the programme’s accuracy despite the complainants having questioned the results four days before the broadcast. They considered that the story could easily have been delayed so that the allegations broadcast could be verified. The complainants objected to TVWorks’ argument that there was only a single error.

[32]   The complainants maintained that they had been treated unfairly as they had been given 48 hours to respond to “highly defamatory” allegations, there were “many deficiencies” in the production company’s communications with them, and the broadcaster had accepted the production company’s explanation of the error rather than evaluating the procedures in place. They considered the broadcaster had brushed over the fact that they had been misled about the date of the sample collection, and that the discrepancy should have alerted the broadcaster to a potential issue with the sample which should have been checked.

[33]   The complainants argued that none of the offers by the production company to rectify the error was “fair or reasonable”, nor did they provide “anywhere near adequate compensation”.

23 June programme

[34]   The complainants reiterated that the apology did not state that the sample did not come from Café Cézanne as promised by the production company, and they objected to TVWorks’ argument on this issue.

[35]   With regard to fairness, the complainants said that they felt manipulated by the production company. They considered TVWorks’ response relating to their input into the apology was “largely nonsense”, noting that there were no changes made to the apology broadcast in the programme despite their request that it be changed.

[36]   The complainants maintained that the apology was not a true reflection of what occurred, as it did not mention that they were treated unfairly in relation to the 16 June programme, or the failures by the production company to verify the allegations broadcast. They said that while they would not expect the apology to have equal airtime to the main story, they believed that the length, placement, content and treatment of the apology made it inadequate and unfair.

[37]   The complainants concluded by reiterating that they had been harmed emotionally and financially by the actions of TVWorks and the production company.

Broadcaster’s Response to the Authority

[38]   The broadcaster provided a detailed response from the production company.

[39]   The production company acknowledged the factual error and that there was a flaw in its processes which “did not insist on a reconciliation of the physical evidence (in this case the receipts) and the file of the trial.” It emphasised that those processes had been reviewed to ensure it would not happen again.

[40]   The production company maintained that the person responsible was not a “first timer” and had done previous trials of a similar nature. During the trial that person had an experienced team to work with, and was given written instructions on the appropriate procedure and methodology. Until this point, the company had found the person to be very capable, it said. She had received training relating to record keeping, sampling and testing including food handling, and labelling. Unfortunately, it said, in this instance she did not follow the approved methodology, and failed to disclose this.

[41]   The production company stated that it operated a two-person check system for filming such as this. On the day a trial was conducted, a file, including a fact sheet, was created. All findings including receipts were notated on the file, and the receipts then filed separately. The files were created by the director, and the information in the file was summarised and formed the basis for the letters sent to the companies evaluated in the trial. At that point, the information was checked by the director’s supervisor.

[42]   The production company said that at the point the spreadsheet of information was created, the director discovered that the receipt had been lost, “chose to rely on recall and covered up the fact that she had misplaced the critical piece of evidence”. Because of this, Target had no reason to believe that the records for the six cafés were not accurate, and the error did not come to light until the director was questioned by producers on 19 June and an audit of the evidence was undertaken. The owners of Café Cézanne were notified on 20 June. The production company said that in this case the double check failed because the supervisor did not insist on cross checking the actual receipts with the file record because they were assured the file was accurate. Further, the lab results were checked at least twice with lab consultants in order to qualify the results and consequences of the levels detected. The production company stated that it followed the guidelines suggested to it by SGS laboratories, “the largest diagnostic laboratory in the world and leaders in their field”.

[43]   The production company noted that as soon as the error was discovered the programme was withdrawn from TV3’s Saturday afternoon schedule and the TV3 website.

[44]   With regard to the complaint that the café owners were given less than 48 hours to respond to the results of the trial, the production company maintained that the letter was signed and dated on Friday 5 June and hand-delivered to the complainants the following Monday 8 June. The complainants responded within the given timeframe. The programme’s producer had spoken to the complainants and their lawyers and they had not asked for an extension to the deadline. Had they asked, the production company said, an extension would have been allowed.

Further Comments from the Complainants

[45]   The complainants maintained that the producer had told them that the director was “doing the hidden camera element of the programme for the first time”. They noted that the person had been referred to as a “contractor” rather than an employee or staff member as in the programme.

[46]   The complainants referred back to TVWorks’ response of 10 August 2009, noting that the “two-person check system” had not previously been mentioned. However they considered if there was such a system it was clearly inadequate, and that the producer should have checked the trail of documents, including the file, before the programme went to air. They therefore were of the view that at least three people – the director, the director’s supervisor, and the producer – were at fault, not just the one staff member referred to in the apology.

[47]   Ms Wilkinson and Mr Williams maintained that the letter from the production company was delivered mid-afternoon on Tuesday 9 June.

Further Comments from the Production Company

[48]   The production company stated that this was the first time the director had been in charge of a hidden camera trial, though she had worked on other elements of the programme over 12 months and had demonstrated meticulous record taking. It said that she was a contractor employed for the duration of the 2009 series, and that the contract was terminated on discovering the error.

[49]   The production company maintained that the apology broadcast on 23 June was accurate in attributing the error to a “staff member”. It argued that there had been insufficient time to work out at exactly what point in the production process the error had occurred because, upon discovering the error, its first priority was to minimise the damage to Café Cézanne. It accepted that production staff had failed to pick up the error, but said that it was not possible to make that assessment at the time, “nor was it appropriate to include it in the apology”.

[50]   Target’s production company considered that, in the apology and the press release, it had sufficiently acknowledged the error which led to the link between Café Cézanne and the positive faecal coliforms result.

[51]   The production company maintained that the letter sent to the complainants before the programme aired was hand-delivered on Monday 8 June 2009, and it reiterated that a time extension for the complainants’ response would have been granted if requested.

[52]   The production company included a copy of the press statement released on 24 June 2009, which said:

Last Tuesday’s episode of Target (June 16) screened an undercover camera segment looking into hygiene standards at a number of Auckland cafés.

Food was purchased at the cafés, and the samples sent away for laboratory testing.

One of those samples came back with a high reading of faecal coliform. In the programme, this reading was attributed to Café Cézanne in Ponsonby Road.

Further investigation by the producers revealed an error in the way the samples were coded by a Top Shelf employee. This means Top Shelf is unable to confirm which café produced the high faecal coliform count.

Top Shelf acknowledges this is completely unacceptable and arose due to human error from a now former employee. Top Shelf unreservedly apologises for this mistake, and notes that Café Cézanne was recently awarded an ‘A’ food grading by the Auckland City Council.

Authority’s Request for Information from the NZFSA

[53]   The Authority requested further information from the New Zealand Food Safety Authority (NZFSA) with regard to a number of aspects of Target’s investigation, based on the information that had been provided by the parties at that time. The relevant questions and the NZFSA’s responses are outlined below.

What does a result of 150 MPN/g faecal coliform in the chicken mean (the aerobic plate count, campylobacter, salmonella and listeria results were all negative)?

[54]   NZFSA stated that, in effect, the result meant that there were most probably 150 faecal coliforms per gram of the hot chicken sandwich. It said that, while it would be expected that the faecal coliform count would also be reflected in the aerobic plate count, without full details of the sample preparation and analysis procedures the reason for the discrepancy could not be determined.

Would this level of faecal coliform justify the chicken being referred to as “contaminated”?

[55]   NZFSA said that the sample was “definitely contaminated” with faecal coliforms, and that according to relevant guidelines, which stated that samples must not exceed 100/g, the level of contamination would be deemed unacceptable.

[56]   However, given that the result was for an indicator organism rather than a pathogen, “it would be unusual to draw a conclusion about a process or establishment based on what appears to be a single sample”, because the guidelines referred to a collection of five samples. “Similarly,” it said, “if the results only slightly exceed the guideline criteria, the premises would be inspected and further samples requested to gain a more robust picture of hygienic performance before a final decision on premises acceptability was made.”

Are the following statements accurate?

“Faecal coliforms can be found in contaminated water and rotting vegetable matter. Enough of them could make you very sick.”

“Needless to say if eaten [the chicken with a faecal coliform count of 150 MPN/g could potentially make someone very sick. Symptoms can include stomach pains, vomiting and bloody diarrhoea.”

[57]   NZFSA said that faecal coliforms were a group of like organisms that can be found in contaminated water, rotting vegetable matter and the intestinal tracts of warm-blooded animals. However, they could also be found in “perfectly good produce such as salad greens”. While most faecal coliforms were not pathogenic, NZFSA said, “some are and with very low infectious dose, (e.g. E. coli...)”.

[58]   NZFSA said that generally, the faecal coliform test was intended as an indicator of unwanted faecal contamination and the potential for the presence of faeces-derived pathogens. It said, “foods with unacceptable numbers of faecal coliforms could, although won’t necessarily, make you sick.”

Is it correct that the NZFSA no longer stipulates a level of faecal coliforms in ready-to-eat foods? If it is the case, why?

[59]   NZFSA said that the Australia New Zealand Food Standards Code contained microbiological standards for ready-to-eat foods but did not use faecal coliforms as the indicator organism for the possible presence of faecal pathogens. The code instead preferred to refer to E. coli, which was the predominant faecal coliform.

Authority’s Request for Further Information from the Broadcaster

[60]   The Authority’s requests for further information and TVWorks’ responses are outlined below.

Details of Target’s methodology in conducting trials including any timeframes associated with delivering food to the laboratory and labelling practices

[61]   The production company stated that the cafés evaluated were randomly selected from the Yellow Pages. There were two people who collected the food samples, the director and the production assistant. The food samples were purchased and each was assigned a code number, against which the time, location and shop name were recorded. Each sample was immediately put into a sterile bag provided by the laboratory and stored in a chill box containing ice, which was also provided by the lab. The production company said that the samples were stored in the chill box until delivery, which was on the same day as the purchase. The receipt and other details were attached to the job sheet and signed off by both staff members so that the sample matched the details recorded.

[62]   With regard to labelling, the production company said that standard protocol was that samples were given a code number as they were recorded at the point of collection: the first sample would be number one, and the number would be written on the sample bag and so on. To ensure the laboratory testing was objective, no other information besides the code number was written on the sample bag. The details of the sample were recorded on a separate job sheet, including the code number, the time and date of purchase and where the sample was taken from. The receipt from the purchase was also attached to the job sheet.

Specific information relating to the collection of food from Café Cézanne, including who collected the hot chicken sandwich and whether it was the same person responsible for the mis-labelling, and a detailed explanation of what happened to the sample once it left Café Cézanne until it reached the laboratory

[63]   The production company said that the director collected the food sample from Café Cézanne, and the director was also responsible for mislabelling the sample.

[64]   After the sample was taken, it was labelled, bagged and put on ice, and then delivered to SGS Laboratories along with other samples taken that day. Errors were made in the documentation process, when code numbers written on the sample bags were not also written on the corresponding job sheets or on the receipts from the sample purchases until all the samples had been delivered. The delay in recording the code numbers on the job sheets “created the very real possibility that the director hadn’t attributed the correct code in relation to the codes on the lab samples”. The production company said that one of the samples produced a high faecal coliform count but it could not be certain which café produced that sample.

Details of the other samples that were collected and tested by Target for the hidden camera trial, including how many other samples were collected, how many were sent to the lab and tested, and the dates on which the other samples were collected and delivered to the lab

[65]   The production company stated that seven other samples were collected, making a total of eight samples, though only six were used in the programme due to time constraints. It said that six samples were collected and sent to the laboratory on 26 May 2009, and two on 27 May 2009. It noted that the analysis reports from the laboratory confirmed these delivery times and stated that both sets of samples were delivered in a “good condition”.

Explanation for why it was not possible to determine which sample returned the faecal coliform count of 150 MPN/g when only one other sample was sent to the lab and tested on the same day as the sample for Café Cézanne, and presumably the receipt for the other sample was available

[66]   The production company explained that the sample from Café Cézanne was collected on 26 May along with another five samples, and delivered the same day. On 27 May, two more samples were collected and delivered to the lab that same day. It said that due to the recording error it could not determine which of the cafés produced Sample 7, which was the sample with the high faecal coliform count.

Any other information which would assist the Authority in determining the complaint

[67]   The production company noted that cross-checking of the sample records did not take place on the two days that the samples were collected, and that the production assistant should have noticed that the job sheets were not properly coded. It said that when the producer reviewed the programme all of the data appeared to be reliable and the director maintained that she had followed the correct procedure. It was only when Café Cézanne’s lawyer requested a copy of the receipt and the director was unable to provide it that the producer became concerned about the director’s methodology. Further investigation revealed the delay in recording the code numbers and it became clear that the production company could not rely on the accuracy of the faecal coliform result being attributed to Café Cézanne.

Complainants’ Response to Further Information

[68]   The complainants considered that TVWorks’ response had made it clear that the contaminated sample, which was Sample 7 on the SGS report, could not have come from Café Cézanne. It noted that TVWorks was adamant that the sample collected from Café Cézanne was collected and delivered to the lab on 26 May, which meant that the contaminated sample could not have been from Café Cézanne because it was received by the lab on 27 May. The complainants attached the receipt from the sample purchase, dated 26 May, as well as the SGS lab report which confirmed that it was a sample received on 27 May that was contaminated.

[69]   Given the confirmation that the Café Cézanne sample and the contaminated sample were delivered to the lab on different days, the complainants considered that the apology on 23 June did reflect negatively on the café by stating that Target was not sure where the contaminated sample came from. They also noted that it was possible that the two cafés not featured on the programme could have been the ones sampled on 27 May, and therefore the apology reflected negatively on all six of the cafés on the programme.

Broadcaster’s Response

[70]   TVWorks accepted that the material provided by the complainants established that the contaminated sample did not come from Café Cézanne. It was also now able to confirm which café the sample came from, and that it was one of the cafés shown in the programme.

[71]   TVWorks therefore accepted that the apology on 23 June was inaccurate and needed to be corrected. It was willing to do this either on air or by written letter if the complainants did not want “an on-air reminder of the programme and its findings”. TVWorks stated that it was willing to provide some contribution to Café Cézanne’s “reasonable costs”.

Authority’s Request for Further Information from the Complainants

[72]   The Authority asked the complainants whether the production company had ever supplied them with a copy of the receipt showing the purchase of the chicken sandwich on 26 May 2009. The complainants replied that it had been provided to them on 7 September 2009.

[73]   In response, the broadcaster supplied the following comments from the production company:

Café Cézanne owners’ request for a copy of the receipt on 19 June led [the Target producer] to request a copy from the director of the story – when that person was unable to immediately locate the receipt the producer became concerned about the director’s methodology and proceeded to closely examine the director’s methods. Later that day (Friday 19 June) the director still hadn’t been able to locate the till receipt however the producer was sufficiently convinced that serious errors had been made and a decision was made to speak to the Café Cézanne owners the following day.

The receipt was located after [production company staff] had met with Café Cézanne’s owners and explained that an error occurred. On 23 June Top Shelf received a letter from [Café Cézanne’s lawyer] detailing numerous points for response plus a request for the till receipt. After due consideration of that letter and one further request from [Café Cézanne’s lawyer] the till receipt was provided through Top Shelf’s lawyers on 7 September.

[74]   The Authority asked the broadcaster to clarify whether the production company had located the receipt prior to 23 June (the date of the second broadcast). The production company said:

Yes the till receipt was located several days prior to [the lawyer for Café Cézanne’s] letter of 23 June. Upon receiving that letter it was felt there were a number of points which demanded a thoughtful response and re-examination of the methodology employed in the Target trial. All of this meant the receipt wasn’t handed over for several months.

Authority's Determination

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

General Comments

Background

[76]   First, the Authority would like to briefly summarise its understanding of the events leading up to this complaint. On 26 May 2009, Target staff purchased a chicken sandwich from Café Cézanne, which was delivered to SGS Laboratories that same day for analysis. Five other food samples were also purchased and delivered to the lab on that day. The following day, 27 May 2009, two more samples were purchased and delivered to the lab. These eight samples were numbered 1 to 8, and those numbers were recorded on corresponding files for each of the cafés. There was a delay in that recording, and failures by staff to cross-check the sample records.

[77]   On 8 or 9 June, Target delivered a letter to the complainants outlining that two of its staff had dined at the café on 29 May and a sample of the food had been tested and produced a positive result for the presence of faecal coliforms. The complainants were not told that the food tested had been purchased on a different day.

[78]   The complainants then went to considerable lengths to investigate the claims made by Target. They responded twice, on 11 and 12 June, requesting the receipt for the sample, the lab results, and Target’s protocols for the collection and testing of the food samples. They also asked whether they would be offered the opportunity to have the sample independently tested. They were given only the result for the contaminated sample. The complainants repeatedly told Target that they had serious concerns relating to the accuracy of Target’s accusations and maintained that its allegation that Café Cézanne’s food contained faecal coliforms was inaccurate.

[79]   On 15 June, the day before the programme, Target told the complainants that the sample had been purchased on 27 May, not 29 May as outlined in its original letter. The programme attributing the sample to Café Cézanne was then broadcast on 16 June, and the complainants again contacted the production company asking if it was sure that it had not made a mistake. The complainants had checked their records, and pointed out to the producer that they had no till receipt for a chicken sandwich on 27 May, the day that he maintained the contaminated sample had been purchased. By this stage, the 16 June broadcast had already gone ahead. The complainants also contacted SGS Laboratories to ascertain what had happened, and the lab refused to supply any information.

[80]   It was not until 20 June, having first been questioned by the complainants as early as 11 June, that the producer met with the complainants and admitted that a mistake had been made and Target was not sure which café had produced the contaminated sample.

[81]   It is now clear that the contaminated sample definitely did not come from Café Cézanne. The production company acknowledged in January 2010 that Café Cézanne’s sample was purchased and delivered to the lab on 26 May 2009 and the complainants have provided a copy of the receipt from that purchase. Documentation from the lab indicates that the contaminated sample was received by the lab the following day, on 27 May 2009, eliminating any possibility that it came from Café Cézanne.

The programme

[82]   Having acted as an advocate for consumers for 11 years, Target is now well-known and has earned a degree of credibility among viewers. It has set itself up as an authority on consumer practices. The Authority therefore considers that its statement that Café Cézanne’s food contained faecal coliforms would have been accepted by its audience without question.

[83]   The Authority notes that not only was that statement inaccurate but Target also failed to provide viewers with any explanation of what the lab results actually meant. The Authority considers that the average viewer would have understood that “faecal coliforms” indicated the presence of faeces in the sample. However, the NZFSA informed the Authority that a faecal coliform test was used as an indicator for the potential presence of pathogens, and that faecal coliforms would not necessarily indicate the presence of faeces or make a person sick if consumed. It also said that it was possible for faecal coliforms to be present in “perfectly good produce”. Further, the NZFSA advised the Authority that it would be highly unusual to draw a conclusion about the standards of a café or other food preparation outlet based on the results of only one sample (see paragraphs [55] to [59] above).

[84]   The Authority considers that, in the absence of any other information, viewers would have been left with the impression that there was faecal matter in Café Cézanne’s food. There is no doubt that this accusation had the potential to cause serious harm to Café Cézanne; it went to the very heart of the complainants’ business. The Authority considers that the production company’s response to the continuing efforts of the complainants to have the test results properly re-examined was cavalier at best, and resulted in TVWorks broadcasting a highly damaging criticism of their café without being absolutely certain of its validity.

[85]   The Authority cannot emphasise enough how serious this is. A damaging report of a small business was broadcast not only as a result of a significant breakdown in Target’s processes but also because the producers of the programme apparently refused to properly consider information supplied by the complainants in the days immediately prior to the broadcast. Even a cursory examination of the information available to the production company would have highlighted that something was seriously wrong.

[86]   On that basis, the Authority now turns to consider the relevant broadcasting standards.

Standard 5 (accuracy)

[87]   The complainants argued that a number of aspects of the original programme broadcast on 16 June were inaccurate or misleading. In the Authority’s view, the significance of these matters pales in comparison to the allegation that Café Cézanne’s food was contaminated with faecal coliforms. Accordingly, its decision focuses primarily on that aspect of the complaint.

[88]   Based on the information outlined above, the Authority is in no doubt that Target’s statement that “The lab detected faecal coliforms in the chicken sandwich sample [from Café Cézanne]” was inaccurate.

[89]   After the 16 June broadcast, upon discovering that a mistake had been made, the production company and the broadcaster failed to take any steps to properly check the information held by the production company, which would have revealed that Target had condemned the wrong café. It is clear now that the production company had located the receipt before the second broadcast on 23 June 2009. Further, TVWorks’ decision on the formal complaints, which is dated 10 August 2009, shows that the broadcaster held all the relevant information which proved that the contaminated sample did not come from Café Cézanne – a copy of the till receipt showing the purchase from Café Cézanne was made at 12.08pm on 26 May, and the laboratory results showing that the contaminated sample was delivered on 27 May. Even at that stage, when it was clear that errors had been made, the broadcaster evidently did not conduct a thorough investigation into the events that had occurred.

[90]   The Authority also agrees with the complainants that the apology on 23 June was inaccurate and did not correct the original error, given that the broadcaster and the production company possessed the information which established that the contaminated sample did not come from Café Cézanne. The apology should have stated that the sample was wrongly attributed to Café Cézanne. Instead, Target said, “we cannot confirm which café produced this high faecal coliform count”, leaving open the possibility that the contaminated food came from Café Cézanne.

[91]   While TVWorks agreed that the statement about faecal contamination in Café Cézanne’s food in the 16 June broadcast was inaccurate, it did not uphold the complaint because it considered that the 23 June apology ensured that there was “no continuing breach” of the accuracy standard. Given the facts that have come to light, the Authority finds that both the initial broadcast on 16 June and the apology on 23 June were inaccurate.

[92]   The complainants also argued that the apology was misleading because it implied that the only error was a “coding error” by a “former staff member”. Having read all of the correspondence, the Authority is satisfied that the mistake was not caused solely by one person’s error but that it highlighted significant flaws in Target’s processes. The director who was responsible for the coding error was not the only person at fault; the production company admitted that no one cross-checked the sample records (see paragraph [67]). Accordingly, the Authority agrees with the complainants that the apology was misleading in implying that the mistake was the result of a simple “coding error”.

[93]   The Authority must now consider whether to uphold the Standard 5 complaints.

[94]   The Authority acknowledges that upholding the Standard 5 complaints would place a limit on the broadcaster’s right to freedom of expression, which is guaranteed by section 14 of the New Zealand Bill of Rights Act 1990. In Pryde and Radio New Zealand¹, the Authority determined that upholding a complaint under Standard 5 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act.

[95]   In the Authority’s view, the objective of Standard 5 is to ensure that broadcasters make reasonable efforts to protect audiences from receiving misinformation and thereby being misled. Audiences of news, current affairs and factual programmes have the right to receive accurate information.

[96]   The Authority considers that it would be a reasonable and proportionate limit on TVWorks’ freedom of expression to uphold a breach of Standard 5 on this occasion. Upholding the accuracy complaint clearly promotes the objective of Standard 5 as outlined above in paragraph [95], because the Authority has found that an inaccurate and damaging allegation was broadcast on Target. It has also found that the apology broadcast by TVWorks the following week failed to correct the original error for viewers. In these circumstances, the Authority upholds the Standard 5 complaints.

Other accuracy complaints

[97]   The Authority notes that the complainants also argued that the apology was misleading because it implied that the contaminated sample came from one of the six cafés featured in the 16 June programme, and Target could not prove that it had. TVWorks has since confirmed that the contaminated sample did come from one of the other five cafés shown on Target (see paragraph [70]). Accordingly, the Authority declines to uphold this part of the accuracy complaint.

[98]   With respect to the complaints about the hidden camera footage (criticisms of the food and hygiene of the bathrooms), the Authority accepts that these observations were the genuine opinions of the Target actors. Because the accuracy standard applies only to statements of fact, not opinion, the Authority declines to uphold these parts of the complaint.

Standard 6 (fairness)

[99]   While TVWorks agreed that the statement about faecal contamination in Café Cézanne’s food in the 16 June broadcast was unfair, it did not uphold the complaint because it considered that the 23 June apology ensured that there was “no continuing breach” of the fairness standard. Given the facts that have come to light, the Authority finds that both the initial broadcast on 16 June and the apology on 23 June were unfair.

[100]   The Authority rejects the argument that Target had no reason to doubt the accuracy of attributing the sample to Café Cézanne. The complainants have demonstrated that only two documents were needed to identify the error: the receipt from the purchase of the sandwich, and the laboratory’s documented receipts of the samples. The broadcaster failed to take any steps to properly check the information either before or after the programme, and even after the complainants repeatedly raised concerns about its accuracy. It must have been obvious to Target that its evaluation of Café Cézanne was likely to have a catastrophic impact on the complainants’ professional reputations; its allegations went to the very core of their business as café owners. Accordingly, the Authority finds that the broadcast of the 16 June programme was unfair to the complainants.

[101]   As already stated, the Authority is of the view that the apology broadcast on 23 June did not remedy the error because it left open the possibility that Café Cézanne was still responsible for the contaminated sample. For this reason, it also finds that the 23 June broadcast was unfair.

[102]   In addition, the Authority finds that the complainants were treated unfairly because they were not given a fair and reasonable opportunity to respond to the accusations before the programme went to air. Given that Target intended to make highly damaging accusations against them, the broadcaster was under an obligation to provide the complainants with sufficient details to allow them to respond adequately. Instead, the complainants were sent a letter that contained numerous errors and omissions relating to the collection of the sample and the café visit. In these circumstances it was unreasonable to expect that they would be able to investigate the allegations thoroughly and provide an informed response, and therefore the complainants were not given a fair chance to defend their business.

[103]   This is highly unsatisfactory, in the Authority’s view, given that as a consumer affairs programme that holds others to account Target has the power to seriously damage the reputations of the businesses and individuals that it puts under a microscope.

[104]   Having reached this conclusion, the Authority must consider whether to uphold this complaint as a breach of Standard 6.

[105]   In Commerce Commission and TVWorks,² the Authority determined that upholding a complaint under Standard 6 would be prescribed by law and a justified limitation on the broadcaster’s right to freedom of expression as required by section 5 of the Bill of Rights Act. In that decision, the Authority described the objective of Standard 6 in the following terms:

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.

[106]   The Authority must now consider whether it would be a reasonable and proportionate limit on TVWorks’ freedom of expression to uphold a breach of Standard 6 on this occasion. It has found above that the complainants were treated unfairly because highly damaging allegations were broadcast about their business, and they were not given a fair and reasonable opportunity to respond. Upon discovering its error, TVWorks took inadequate steps to investigate what had occurred, and then broadcast an apology which was also inaccurate, with the result that significant harm has been caused to the complainants’ reputation and to their business.

[107]   Upholding a breach of the fairness standard on this occasion would remind broadcasters to ensure that they deal with people referred to in a programme in a just and fair manner. In this respect, upholding this complaint clearly promotes the objective of Standard 6 (as outlined in paragraph [105] above).

[108]   In these circumstances, the Authority finds that upholding this part of the complaint places a justified and reasonable limit on TVWorks’ freedom of expression. Accordingly, it upholds the complaint that the broadcast of Target on 16 and 23 June breached Standard 6.

For the above reasons, the Authority upholds the complaint that the broadcasts by TVWorks Ltd of Target on 16 and 23 June 2009 breached Standards 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

[109]   Having upheld the complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties.

Complainants’ Submissions on Orders

[110]   The complainants emphasised that the programmes had had substantial negative and continuing effects on their business, and caused severe embarrassment and stress for them and their staff. They argued that TVWorks and Target had been extremely unhelpful in dealing with their concerns, and had unnecessarily prolonged the complaints process.

Broadcast Statement

[111]   With regard to orders, the complainants considered that TVWorks should be ordered to broadcast a statement summarising the decision and its key findings. They argued that, given the broadcaster had twice broadcast apologies that were misleading and inadequate, the Authority should depart from usual procedure and allow the complainants’ lawyer to review and comment on the proposed statement before it was approved by the Authority.

[112]   The complainants considered that the statement “must make it absolutely clear that it has been proved that the contaminated sample was not collected from Café Cézanne because the Café Cézanne sample was collected on a different day to the day on which the contaminated sample was collected.” They said that it was very important to them that their café was fully exonerated by the statement. The complainants also considered that the statement should include an unequivocal apology to them, their staff and their suppliers.

[113]   Finally, the complainants argued that the statement should be broadcast on two occasions in consecutive weeks during Target after the hidden camera segment was announced and prior to it commencing, that is, not “tacked on” at the end of the episode. They contended that two separate broadcasts were appropriate since the breaches related to two separate programmes.

[114]   Secondly, the complainants argued that the broadcast statement, or a similar statement, should also be broadcast on two occasions at least a week apart, between 7am and 8pm, on each of MediaWorks’ radio stations that operate in Auckland. They also considered the statement should be published in The New Zealand Herald on two occasions on dates selected by the Authority, at least a week apart and preferably in the weekend edition and not in a classified advertisement.

[115]   The complainants maintained that this was justified because the effects of Target’s actions were ongoing and in their view “basically everyone in Auckland... still associates Café Cézanne with faeces”. They also noted that TVWorks had previously offered them corrective advertising on MediaWorks radio stations and considered that “there is little or no cost to them doing this”.

Advertising

[116]   The complainants argued that the seriousness of the breaches warranted an order to stop broadcasting for a 48-hour period – 24 hours for each programme. However, they did not want to press the Authority for such an order because it would penalise viewers. Instead, they sought additional publication of the statement (see [114]) and an order that TV3 cease broadcasting advertisements, including sponsorship and underwriting credits, for a 48-hour period. They argued that this was necessary to send a message that serious breaches of broadcasting standards that have such significant personal and financial impact on other parties will result in significant consequences for the broadcaster.

Legal Costs

[117]   The complainants sought an order for 100 percent of their legal costs totalling $28,068.75. They argued that this was appropriate given the circumstances of the case, and because they had been personally and significantly affected, their commercial interests had been significantly affected, TVWorks had unnecessarily and unreasonably prolonged the process, and it had already offered to make a contribution to reasonable costs.

Costs to the Crown

[118]   The complainants argued that the seriousness of the breaches justified ordering TVWorks to pay $5,000 for each programme, totalling $10,000 costs to the Crown.

Broadcaster’s Submissions on Orders

[119]   TVWorks considered that it was necessary for it and for the production company to comment on some of the Authority’s findings as part of its submissions on orders. TVWorks maintained that Target’s collection and testing methodology was sound and that the Authority had not made a finding to the contrary. It reiterated its belief that prior to the events that arose in relation to the programme, the producers had no reason to doubt the integrity of their systems and “should not be criticised for relying upon their systems and processes on this occasion”. TVWorks considered that “it certainly cannot be said to be a breach of broadcasting standards for them to have relied upon their systems which had not let them down for 11 years.” However, it noted that the producers had now thoroughly reviewed their systems to ensure a similar situation could not occur again.

[120]   Second, TVWorks submitted that the Authority’s finding in relation to the actions of the broadcaster and the producer in response to the complainants’ initial questions and concerns was unfair given it was based solely on the documents provided and without hearing from those involved. It considered that the Authority should have taken into account that Target had been running for 11 years and that this was the first occasion such an error had occurred, and that procedures had been refined over many years. The broadcaster noted that the complainants’ initial questions related to the timing of the programme’s visits to the café rather than the identification of the contaminated sample.

[121]   TVWorks was of the view that the Authority did not have a sufficient basis for finding “a level of recklessness or carelessness about actions taken that is strenuously denied by both the broadcaster and the producer.” It considered that in those circumstances publication of the decision, which contained such criticisms, would have a significant impact on the credibility of the programme and would be significant penalty in itself, especially given that the decision would be reported by other media.

[122]   On that point, the production company also considered that the Authority’s finding that its response to the complainants was “cavalier” was unfair and that it misrepresented the decision making processes of the producer at the time.

[123]   With regard to the broadcast on 23 June, TVWorks and the production company emphasised that at that time they genuinely believed that the apology was a correct statement of the position and that it was not possible to say which café had produced the contaminated sample. It submitted that the Authority must measure compliance with broadcasting standards based on the degree of culpability at the time of the broadcast. The broadcaster also submitted that “the Authority’s only role... is to consider whether the response by the broadcaster to that first mistake was appropriate and whether anything more should be required to address the acknowledged breach”. TVWorks argued that its response to the first mistake “was timely and appropriate and therefore no breach of standards occurred”. However, as the Authority had found otherwise, it submitted that no penalty should be imposed in relation to the apology beyond the publication of the decision and some contribution to the complainants’ legal costs.

[124]   TVWorks accepted that the second mistake was that, having gathered all of the relevant information, the producers failed to appreciate that the contaminated sample could not have been from Café Cézanne. It said, “there is no explanation for this failure except once again a human failure to make this connection until after it was drawn to everyone’s attention... on 2 February 2010.” However, it considered that this mistake was quickly acknowledged during the complaints process and that it had moved promptly to try and reduce the impact of the mistake by trying to reach agreement on a second apology. No agreement could be reached, it said, but to mitigate further damage another correction was broadcast on 16 March 2010 “making it clear to viewers that the contaminated sample did not come from Café Cézanne.” It considered that the Authority had not given it any credit for “moving promptly and effectively to make such an acknowledgement”.

[125]   The broadcaster maintained that the second apology was “a sufficient response to the second mistake and that by publishing the statement as it did the broadcaster has complied with the requirements of the standards to correct inaccuracies and treat those affected fairly.”

[126]   TVWorks argued that the complainants had not provided any evidence of the loss they claimed to have suffered. It submitted that the Authority should not assume that the business had suffered loss without proof and clear evidence that the loss was caused by the programmes. TVWorks pointed to a Herald article that it alleged demonstrated the complainants had suffered no permanent loss. It also argued that some of the loss could have been due to “the other (undenied and unchallenged) comments made in the programme about the cleanliness and hygiene standards of the café.”

[127]   The broadcaster maintained that the objective of the complaints process was not to provide redress for alleged financial loss or embarrassment, as the legal system had other methods for dealing with such claims. The process was about ensuring broadcasting standards are maintained, it said, and “no one who works in or with the broadcasting industry expects that every day, 100 percent of the time, the human beings who create these programmes are going to get it absolutely right.” TVWorks contended that the Code held broadcasters to a reasonable standard and required “reasonable efforts”.

[128]   TVWorks concluded that by acknowledging the mistakes, publishing corrections and apologies at the earliest appropriate opportunity, and offering to make a contribution towards the complainants’ reasonable costs, the broadcaster and producer had complied with the relevant broadcasting standards. TVWorks also considered that the Authority should “give credit for the good record the Target programme has and the prompt and well intentioned steps taken to put right what had gone wrong”.

[129]   The broadcaster concluded by saying that publication of the decision was sufficient penalty, and it accepted that it should contribute to the complainants’ legal costs. It maintained that everyone associated with the programme had acted at all times in good faith and genuinely endeavoured to correct the mistakes made.

Authority’s Comments on the Broadcaster’s Submissions

[130]   The Authority finds it appropriate to comment on the submissions made by TVWorks in respect of this decision.

[131]   First, the Authority notes that, regardless of past processes and programmes, Target’s systems failed on this occasion resulting in extremely serious errors and unfairness to Café Cézanne.

[132]   Second, responding to TVWorks’ observation that the complainants’ initial questions related to the timing of the programme’s visits to the café rather than the identification of the contaminated sample, the Authority notes that this was due to the incorrect and inadequate information given to Café Cézanne by Target. The Authority observes that the initial “human error” which led to the breach in the first programme would undoubtedly have been picked up before the programme was broadcast if the complainants had been given full and accurate information about the hidden camera trial.

[133]   The Authority therefore stands by its assessment that the questions raised by the complainants before the first broadcast should at the very least have prompted a review of the information in Target’s possession, which would have highlighted that errors had been made. Even after the first programme, when it was clear that a mistake had been made, Target apparently failed to properly review and consider the information which it alone held, and which would have conclusively ruled out Café Cézanne as the source of the contaminated sample. As outlined in paragraphs [73] to [74], the production company located the sample receipt even before the 23 June broadcast and refused to provide it to the complainants until September. Target also did not admit until January 2010 that it had a policy of delivering samples to the lab the same day they were collected.

[134]   The Authority stresses that, until part way through this complaints process, the broadcaster and the production company were the only ones in possession of all the facts and information necessary to discover that the lab sample was wrongly attributed to Café Cézanne. Furthermore, the production company had been in possession of this information since several days before the 23 June 2009 broadcast. Had they been minded to get to the bottom of the complainants’ concerns and taken care to properly examine the information held, the situation could have been resolved before the second broadcast even took place. The Authority accepts that Target’s failure in this respect was not intentional or malicious, but does not resile from its finding that the reaction of the broadcaster and the production company to the complainants’ concerns was cavalier at best.

[135]   The Authority notes that the broadcaster did not request a hearing at any stage and it rejects the suggestion that it was unable to make the above findings based on the information provided in the papers.

[136]   Overall, TVWorks’ response suggests that it still fails to appreciate the seriousness of the breaches of broadcasting standards that have been found above. The Authority maintains that its findings are both necessary and sound.

[137]   The Authority now turns to consider appropriate orders.

Authority’s Decision on Orders

Broadcast statement

[138]   The complainants have requested that a statement summarising the decision be broadcast twice on Target, twice in The New Zealand Herald, and twice on each of MediaWorks’ radio stations. They have also asked that those statements make it clear that the contaminated sample could not have come from their café because their sample was collected on a different day to the sample which was found to be contaminated.

[139]   The Authority is of the view that the serious breaches of broadcasting standards warrant these orders, with some modifications. It hopes that statements summarising the decision will go some way towards correcting the negative impression of Café Cézanne that the Authority considers would inevitably have been left by the two broadcasts.

[140]   Accordingly, the Authority considers it appropriate to order TVWorks to broadcast a comprehensive summary of the decision during Target, including an unequivocal statement that the contaminated sample could not have come from Café Cézanne because their sample was collected on a different day. It is of the view that one statement on Target is appropriate, and orders that the statement must be broadcast during the first segment of the programme (prior to the first advertisement break).

[141]   The Authority also orders TVWorks to publish that statement as a display advertisement (not in the classified section) once in The New Zealand Herald, on the day following the broadcast of the statement in the Target programme.

[142]   In addition, on the same day as the statement is published in the Herald, the Authority orders that a shorter statement must be broadcast twice on each of MediaWorks’ radio stations. This statement should briefly summarise the main findings of the decision and refer listeners to the full statement in the Herald. The Authority orders that the radio statements be broadcast during the breakfast programmes of each station, between 7am and 9am.

[143]   The complainants also requested that their lawyer be allowed to comment on the statement before it is broadcast. The Authority sees no reason to depart from its usual process in this instance, but is prepared to provide a copy of the final statement to Café Cézanne, as a courtesy only, prior to the statement being broadcast.

Apology

[144]   The Authority has ordered apologies only rarely and in exceptional circumstances. It considers that such circumstances exist in this case and therefore that an apology is necessary.

[145]   The Authority acknowledges that TVWorks has already broadcast two apologies. However, it considers both were inadequate. The first, as found in the determination, was part of a statement that itself breached broadcasting standards. Furthermore, that statement still left open the possibility that the contaminated sample had come from Café Cézanne.

[146]   The second apology on 16 March 2010 was broadcast despite repeated pleas by the complainants that Target refrain from broadcasting the statement pending the outcome of the Authority’s complaints process. Given that the complainants asked TVWorks not to proceed with that statement, and the fact that it did not refer to the broadcaster’s breach of broadcasting standards, the Authority considers that it was inadequate for the purposes of this process.

[147]   Taking into account the serious breaches of standards, the Authority considers it appropriate to order TVWorks to include an apology to the complainants in each of the statements published.

Legal Costs

[148]   The complainants have sought an order for 100 percent of their legal costs, totalling $28,068.75.

[149]   The Authority’s policy is that costs awards for complainants whose complaints have been upheld will usually be in the range of one-third of costs reasonably incurred. This amount may be adjusted upwards or downwards depending on the circumstances.

[150]   In determining “reasonable costs” in this case, the Authority has taken into account the length of the complaints process, the fact that two broadcasts were complained about, the number of submissions that were required and the quality of the submissions made by the complainants’ legal counsel. The Authority is of the view that the legal costs of $28,068.75 incurred by the complainants were reasonable in this case.

[151]   The Authority’s policy on Costs Awards³ states that the Authority will consider adjusting awards up, to a sum greater than one-third of reasonable costs, in a number of circumstances, including where:

• The complainant was personally and significantly affected by the broadcast complained of, and thus he or she was justified in seeking legal advice to protect his or her interests or reputation.
• The complainant’s commercial interests were potentially significantly affected, again justifying recourse to legal advice.

[152]   In this case, the Authority is satisfied that both of the above circumstances existed. Furthermore, had the broadcaster and the production company properly investigated the complainants’ concerns in the first instance, minimal legal costs would have been incurred. Taking into account all the circumstances, the Authority considers it appropriate to order TVWorks to pay to the complainants the entirety of their legal costs, in the amount of $28,068.75.

Advertising

[153]   The complainants submitted that TVWorks should be ordered to refrain from broadcasting advertising programmes for two periods of 24 hours.

[154]   The Authority acknowledges that this would signal to the public the seriousness of the breaches. However, it has reached the conclusion that such an order is not appropriate on this occasion. The Authority has not made this decision lightly, but is of the view that it should focus on more practical measures which will provide some redress to the complainants and correct the errors in the original broadcasts. It is satisfied that the orders for broadcast statements more aptly serve that purpose, and that its order of costs to the Crown below signals the seriousness of this matter.

Costs to the Crown

[155]   Costs to the Crown are generally imposed where there has been a serious departure from broadcasting standards. On this occasion, the Authority considers that the breaches of broadcasting standards in the first programme were serious and extremely damaging. The broadcast included inaccurate allegations about Café Cézanne which went straight to the heart of their business. The Authority is satisfied that the magnitude of those breaches warrants the maximum penalty of $5,000 costs to the Crown.

[156]   The Authority acknowledges that the second programme was less damaging than the first, and it has therefore considered whether a lesser penalty is appropriate. It notes that the second programme contained an apology and acknowledged that an error had been made, but rather than exonerate Café Cézanne as it should have done, it left open the possibility that the café was responsible for the faecal coliforms. Further, given that a week had elapsed since the first broadcast, there was only limited context provided for the apology and, while it explained that the faecal coliforms could have come from another café, the only café named in the 23 June item was Café Cézanne. This was particularly unfair given the enormous damage caused by the first programme, and the fact that the broadcaster was in possession of evidence that established beyond doubt that Café Cézanne was not the source of the contaminated food. This inexplicable failure by the broadcaster to unequivocally clear Café Cézanne showed a lack of appropriate care and unnecessarily extended the damage caused by the first programme. Instead of being completely exonerated within a week, the complainants have had to live under the shadow of Target’s allegation for an extended period of time. The Authority concludes therefore that the second programme also warrants the maximum penalty of $5,000.

[157]   The Authority therefore orders TVWorks to pay a total of $10,000 in costs to the Crown for both programmes.

Orders

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

1.  Pursuant to section 13(1)(a) of the Act, the Authority orders TVWorks Ltd to publish a statement approved by the Authority.

That statement shall:

• be presented both verbally and visually on screen
• be broadcast prior to the first advertisement break in Target
• be broadcast on a date approved by the Authority within one month of the date of this decision
• contain a comprehensive summary of the Authority’s decision
• contain an unequivocal statement that the contaminated sample could not have come from Café Cézanne because their sample was collected on a different day
• contain an apology to Café Cézanne.

2.  Pursuant to section 13(1)(a) of the Act, the Authority orders TVWorks Ltd to
publish a statement approved by the Authority.

That statement shall:

• be printed as a display advertisement in The New Zealand Herald
• be published the day following the broadcast of the statement on Target
• contain a comprehensive summary of the Authority’s decision
• contain an unequivocal statement that the contaminated sample could not have come from Café Cézanne because their sample was collected on a different day
• contain an apology to Café Cézanne.

3.  Pursuant to section 13(1)(a) of the Act, the Authority orders TVWorks Ltd to publish a statement approved by the Authority.

That statement shall:

• be broadcast twice on each of MediaWorks’ radio stations during the breakfast programme between 7am and 9am
• be broadcast on the same day as publication in The New Zealand Herald
• be a shortened form of the statement broadcast on Target
• refer listeners to the statement published in The New Zealand Herald
• contain an unequivocal statement that the contaminated sample could not have come from Café Cézanne because their sample was collected on a different day
• contain an apology to Café Cézanne.

The Authority draws the broadcaster's attention to the requirement in section 13(3)(b) of the Act for the broadcaster to give notice in writing to the Authority and the complainants of the manner in which the above orders have been complied with.

4.  Pursuant to section 16(1) of the Act, the Authority orders TVWorks Ltd to pay to the complainants costs in the amount of $28,068.75, within one month of the date of this decision.

This order for costs shall be enforceable in the Wellington High Court.

5.  Pursuant to section 16(4) of the Act, the Authority orders TVWorks Ltd to pay to the Crown costs in the amount of $5,000 for the 16 June 2009 programme and $5,000 for the 23 June 2009 programme (totalling $10,000), within one month of the date of this decision.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
31 May 2009

Appendix

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

1.           Jackie Wilkinson and Rod Williams’ formal complaint about 16 June programme – 13 July 2009

2.          Ms Wilkinson and Mr Williams’ formal complaint about 23 June programme – 20 July 2009

3.          TVWorks’ response to the complaints – 10 August 2009

4.          Ms Wilkinson and Mr Williams’ referrals to the Authority – 7 September 2009

5.          TVWorks’ response to the Authority and comments from production company – 16 October 2009

6.          Complainants’ response to production company – 6 November 2009

7.          Further comments from production company – 27 November 2009

8.          NZFSA’s response to Authority’s request for further information – 14 December 2009

9.          TVWorks’ response to Authority’s request for further information – 18 January 2010

10.          Further comments from the complainants – 2 February 2010

11.          Further comments from TVWorks – 2 March 2010

12.          Response from the complainants – 10 March 2010

13.          Email correspondence between the complainants and TVWorks – 12 March to 16 March 2010

14.          Complainants’ response to Authority’s request for further information – 16 April 2010

15.          Further comments from TVWorks – 21 and 23 April 2010

16.          Complainants’ submissions on orders – 12 May 2010

17.          TVWorks’ submissions on orders – 23 May 2010

¹Decision No. 2008-040

²Decision No. 2008-014

³See /complaints-costsawards.php