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Commerce Commission and TVWorks Ltd - 2008-014

Dated

2nd October 2008

Number

2008-014

Programme

60 Minutes

Channel/Station

TV3

Broadcaster

TVWorks Ltd


Complaint under section 8(1B)(b)(i) of the Broadcasting Act 1989
60 Minutes – item about the Commerce Commission's prosecution of a man and his company Probitas, who were marketing a fertiliser system – allegedly unbalanced, inaccurate, unfair

Findings
Standard 4 (balance) – programme failed to provide viewers with a significant perspective which was critical to their understanding of the issues – upheld

Standard 5 (accuracy) – no inaccurate statements of fact – not upheld

Standard 6 (fairness) – promo – not unfair to expert witness – promo was a fair reflection of interview with the Commission's representative – not upheld

Standard 6 (fairness) – programme – did not fairly present the Commission's side of the story – unfair to the Commission – upheld

Orders
Section 13(1)(a) – broadcast of a statement
Section 16(1) – payment of costs to the complainant $2182.50
Section 16(4) – payment of costs to the Crown $2,000

This headnote does not form part of the decision.

Broadcast

[1]   An item on 60 Minutes, broadcast on TV3 at 7.30pm on 15 October 2007, presented the story of a man, Ewan Campbell, who had "invented a way to make farms grow faster" but had been prosecuted by the Commerce Commission and faced a fine of "over a quarter of a million dollars for false representation". The reporter stated that a representative from the Commerce Commission had posed as an undercover avocado grower seeking information from Mr Campbell; a year later four investigators had arrived with a search warrant. The presenter said:

You'll be asking by now what heinous crime has taken place up here in the back blocks of Waihi. Well, was it a crime? All that's happened is that a man has invented an alternative to conventional chemical-based fertilisers, a natural system that many farmers up and down this country swear by. No one in their wildest dreams ever imagined it would cause all hell to break loose.

[2]   The reporter stated that the Commerce Commission said Mr Campbell's fertiliser system, Probitas, "doesn't work" and was costing the country "a whopping $5 million a year in lost productivity". Several farmers and the superintendent of a golf club were interviewed in the programme and they all praised Probitas. The reporter asked "So why did [the Commerce Commission] prosecute?"

[3]   Dr Doug Edmeades, a soil scientist described in the programme as "the Commerce Commission's big gun in the case against Probitas" was interviewed in the programme. He stated:

Based on the scientific evidence accumulated to date, and based on what that product contains, and based on its claimed mode of action, it cannot work as advertised.

[4]   The reporter put to Dr Edmeades that he was looking at the product "strictly...out of the textbook", to which he replied "that's a pejorative term...if you analysed the product...you have to reach the conclusion that this stuff's ineffective". The following exchange between the reporter and Mr Campbell was included:

Reporter:       What they're saying is that your science is voodoo science, and that it can't
                     possibly work.

Campbell:      Okay, well who said it didn't work?

Reporter:      The expert witness.

Campbell:      Well how does he know?

Reporter:       Well for starters, he's a scientist and you're not.

Campbell:       Really. The guts is, if the farmers are seeing a result and it's working, and my
                     science is wrong, why is it working? Okay? Tell me that and then we'll have
                     the answer.

[5]   Noting that the fertiliser industry in New Zealand was a one billion dollar business, the reporter said that most fertilisers came from two big companies, Ravensdown and Ballance Agri-Nutrients. The presenter said:

Then Ewan Campbell comes along, claiming he can do better than conventional fertiliser by, believe it or not, tapping into electromagnetic flows and using stuff like silica

[6]   Mr Campbell was shown demonstrating to the reporter with a voltmeter that there were voltage differences in the soil, saying "you change the terminals around, it goes immediately into negative, which shows it is a directional flow". The presenter asked Dr Edmeades if he had taken a "voltmeter out and had a look", to which he replied:

No I haven't, and nor would I, and nor would I encourage anyone else to do that because...we know that there are potential differences, voltage differences, at the atomic molecular level within the soil, but to say that that extends over the...smallest unit of the soil, the ped, the crumbs of soil, is just absurd.

[7]   Mr Campbell stated "what we found out was that there [are] low level electrical currents anywhere in the world, but we can actually put the right type of silica on, which actually enhances it and lifts it...it lifts the nutrient availability, stimulates the microbiology, and enhances the plant production".

[8]   The reporter said that "just one complaint from a Northland scientist" had led to Mr Campbell and Probitas "being done for misleading claims". Geoff Thorn, general manager of the Commerce Commission, was asked how the Commerce Commission could investigate a fertilising system without going to the farms that were using it. He said:

Well the evidence that we have to provide is whether or not a representation has been made, and whether that representation is false, and we were able to satisfy the court on both those counts.

[9]   The reporter asked Mr Thorn how the Commerce Commission knew the representation was false when the investigators had not been to a farm. He said "the court examined the evidence that was presented to it, and it found that those representations were false".

[10]   The reporter said that the District Court judge in the case against Mr Campbell and Probitas had said the case against Probitas "stands or falls" on Dr Edmeades' evidence. Speaking again to Dr Edmeades, the following exchange occurred:

Reporter:       There's a problem here though, isn't there Mr Edmeades, and that is the
                     farmers aren't complaining about loss of production, these farmers are
                     saying that it's working.

Edmeades:     So?

Reporter:        So they're wrong?

Edmeades:     There are people who believe the earth's flat, belief is not proof, belief is just
                      that, belief. But it doesn't prove that a product works. For that we need
                      scientific tests to demonstrate a yes or it doesn't.

Reporter:        So why have there been no scientific tests?

Edmeades:     Any scientist who gets a query from a company, they look at what this
                     product is, what's the claimed mode of action, what does it contain, and
                     they'd make an assessment on that basis as to whether it would be
                     worthwhile taking further and doing some research. In this case we can
                     be certain, based on the science, that the stuff is useless.

[11]   Mr Thorn from the Commerce Commission stated that "farmers cannot tell for themselves whether the product works. They rely on those representations and the court has found that those representations were false and misleading". The reporter again spoke to several farmers who maintained that Probitas worked and that they took exception to the Commerce Commission's view that they did not understand the science behind it.

[12]   The reporter said that Mr Campbell believed Dr Edmeades was "in way too deep with the major fertiliser companies", and Mr Campbell said that Dr Edmeades had admitted, on the witness stand, to asking representatives from Ballance and Ravensdown to check over his brief of evidence. Dr Edmeades explained that those two people were ex-colleagues of his, and that he had also sent the brief of evidence to other people for their viewpoint, to make sure his scientific methodology was intact. The reporter said "they just happened to be from Ballance and Ravensdown", to which Dr Edmeades, replied:

Look we're professional enough to be able to look at someone else's work, and dissociate ourselves from who we work for to do that.

[13]   The reporter questioned whether Dr Edmeades had a conflict of interest and said the evidence showed he was "pretty hand-in-glove with the big companies". She said that it was "not just important that you are independent, is it, it's important that you're perceived as being independent". The reporter showed Dr Edmeades some written material stating that he had attended road shows with Ballance and had edited their handbook, to which Dr Edmeades replied "that was about, I think, 10 years ago". He said:

The issue is, and Judge Callander touched on it in his judgment, have I modified my scientific opinion, objectivity or impartiality, because of dollars? And the answer to that is, definitely not.

[14]   Mr Campbell's wife was interviewed in the programme and the reporter said that she had been home alone "when bailiffs came and seized their two vehicles". Mrs Campbell said "they come at us with such bully tactics" and she now did not like to be home alone. The presenter noted that Mr Campbell had refused to pay his fine of over a quarter of a million dollars, and said that the Commerce Commission had "already prosecuted him over his brochures and CD ROMs. Now they're taking him on over his videos. The court hearing is scheduled for next month".

[15]   Two versions of a promo were broadcast on TV3 at various times leading up to the programme. One of the promos contained a brief exchange between the reporter and Geoff Thorn where the reporter said:

I don't know how much media training you've had, just to not answer my questions...

Complaint

[16]   The Commerce Commission (the Commission) lodged a formal complaint about the programme and the promos to TVWorks Ltd, the broadcaster, alleging that they were unbalanced, inaccurate and unfair. It noted that the promo contained an exchange between the presenter and Geoff Thorn, general manager of the Commission, where the presenter implied that Mr Thorn was using his media training to avoid answering questions put to him.

[17]   In the Commission's view, the clear thrust of the programme was that the Commission had unjustly taken action against Probitas Ltd and Mr Campbell. It said that the conclusions the programme makers sought to have drawn from the programme were that:

  • the Probitas product worked in the manner in which Probitas Ltd and Mr Campbell claimed, as no farmer who had bought the product had complained about it;
  • the Commission had used heavy-handed and bullying tactics when investigating, prosecuting, and enforcing penalties against Probitas Ltd and Mr Campbell;
  • the Commission and the Court relied upon evidence from Dr Edmeades, who was opposed to the use of organic fertiliser, who had financial dealings with and connections to large chemical-based fertiliser companies, and was accordingly biased;
  • the Commission was now avoiding answering questions regarding the investigation and prosecution of Probitas Ltd and Mr Campbell, as if it now had something to hide;
  • Probitas Ltd and, in particular, Mr Campbell were victims of the system (the Commission, the expert witness, and the Court).

[18]   The complainant stated that each of these conclusions was misleading and was contrary to the information provided to the programme makers, the evidence presented to the Court, the judgment of District Court Judge Callander and the reality of the conduct of Probitas Ltd and Mr Campbell. It believed that the broadcaster had selectively used evidence and information in a manner that supported those conclusions, and deliberately omitted information and evidence that did not support them.

[19]   The Commission said it was concerned that this selective use of materials signalled a biased and partial approach by the programme makers, particularly in the deliberate omission of facts and information disclosed in or about the court hearings. It acknowledged that the broadcaster could criticise the Commission, the expert witness and the court's decision, and stated that the Commission welcomed this type of scrutiny from the media. However, it wrote, the broadcaster was obliged to portray fairly and accurately what had happened not only in the court case, but in the events before and after it. The programme "patently failed to do this".

Bias, partiality and unfairness

[20]   The Commission stated that in order to have a proper appreciation of the facts and circumstances which led to Probitas Ltd's and Mr Campbell's convictions and fines, it was necessary to consider the evidence presented to the court and its findings. For this reason, it enclosed copies of Judge Callander's judgment and sentencing notes.

Failure to adequately refer to the legal basis of the Commission's case and the issues considered by the Court

[21]   The complainant stated that the matters put before the court were far more detailed than the "broad passing references" made in the programme which, it said, did not adequately encapsulate the real issues concerning Probitas and the false claims the court held Probitas Ltd and Mr Campbell were making regarding that product.

[22]   Noting that the court hearing had lasted for nine days, and had involved 30 charges, the Commission pointed out that the judge (at paragraph 47 of his decision) had listed the representations made by Probitas Ltd and Mr Campbell, and why the Commission said they were false and would be likely to mislead the public. None of this detail had been reflected in the programme, it said.

[23]   Further, fundamental to the issues raised in the programme, the provisions of the Fair Trading Act 1986 were not explained. The Commission argued that, as the case was all about whether or not the marketing of Probitas was false or misleading, these provisions were important and should have been explained.

Failure to adequately refer to scientific evidence presented by the Commission

[24]   The complainant maintained that the programme did not contain any direct references to the scientific evidence upon which the court concluded that the representations regarding Probitas were false and misleading. The programme, it wrote, did refer to the court finding that the Probitas product did not work in the manner claimed, but it did not refer to the specific scientific evidence which supported the court's conclusion. The Commission said that the interviewer had questioned the personal credibility of the scientific expert, Dr Edmeades, instead of examining his conclusions.

[25]   The complainant noted that the programme did contain a reference to Mr Campbell's "purported scientific claim" that Probitas could do better than a conventional fertiliser by "tapping into electromagnetic flows and using stuff like silica" and that "the right type of silica lifts nutrient availability, stimulates the microbiology and enhances plant production". In the Commission's view:

The inclusion of this reference in the programme, in the absence of the scientific evidence presented to the court, suggests to the viewer that there was merit in the Probitas product when, in reality, it was representations such as this that the court found to be false and misleading.

Failure to address the relevant conduct of Probitas Ltd and Mr Campbell

[26]   The Commission stated that highly relevant information about the conduct of Probitas Ltd and Mr Campbell had been omitted from the programme. It gave the following examples:

  • After the Commission obtained a preliminary report from Dr Edmeades it requested an interview with Probitas Ltd and Mr Campbell; both declined.
  • During the investigation, Mr Campbell issued trespass notices against all agents of the Commission to thwart its enquiries.
  • The second court case (which had not been heard at the time of the broadcast, but was referred to at the end of the programme) was being held separately at the request of Probitas Ltd and Mr Campbell. The Commission requested that all charges be heard together, but Probitas Ltd and Mr Campbell elected to have the charges heard in two separate hearings. This was contrary to the impression given in the programme that the Commission elected to pursue them in two separate proceedings.
  • Mr Campbell gave no evidence at the court hearing, despite claiming to be the inventor of Probitas and being the technical adviser to all persons selling the product. Neither Mr Campbell nor Probitas Ltd called any scientific or other expert evidence.
  • The only person called by Mr Campbell to give evidence stated that they used other forms of fertiliser in addition to Probitas, meaning that their results could have been attributable to the chemical fertiliser.
  • The sentencing hearing was adjourned to afford Mr Campbell the ability to prepare for sentence and the court directed him to provide a statement as to his and his company's financial means. He did not provide that information. Mr Campbell and Probitas Ltd then failed to appear in court for sentencing
  • The programme did not refer to Judge Callander's comments about Mr Campbell's conduct, and these comments were clearly relevant to any proper assessment of Mr Campbell's credibility. This was particularly so because the programme presented him as an "innocent victim".
  • The programme did not properly address the extent of the Judge's findings against Probitas Ltd and Mr Campbell. The judge found that their actions amounted to deliberate breaches of the law, and that the prosecutor's description of Mr Campbell's actions as "simply a get rich quick scam" was appropriate. The judge noted that Probitas was still being sold with the same advertising claims, and that Mr Campbell was deliberately flouting the court's decision.
  • Following sentencing, and the failure by Probitas Ltd and Mr Campbell to pay the fines imposed on them, bailiffs from the Department for Courts seized two vehicles from Mr Campbell's property. The bailiffs were not acting on behalf of the Commission, but the programme left this impression. Mr Campbell's wife stated "they come at us with such bully tactics" and her comment was included to give credence to the theme that Mr Campbell was a victim of heavy-handed tactics by the Commission. In reality, the bailiffs were acting in a legitimate manner pursuing a debt owed by a convicted person to the State.
  • The fines imposed by the court were $200,000 to Probitas Ltd and $60,000 to Mr Campbell personally. The programme left the impression that Mr Campbell personally was liable to pay the total fines.

Misrepresenting the effect of the court's findings

[27]   The complainant said that the court had found that Probitas was being marketed in a false and misleading manner, as there was no scientific basis for concluding that the product worked as claimed. This had been explained to 60 Minutes, it said, and the court's findings did not prevent Mr Campbell or Probitas Ltd from continuing to sell the product (provided the marketing was not false or misleading). Had this been properly presented in the programme, the Commission wrote, it would have dispelled any suggestion that the Commission, the expert witness or the court were trying to prevent Probitas Ltd and Mr Campbell from legitimately operating their business.

[28]   The District Court judge had reached the conclusion that Probitas Ltd and Mr Campbell were operating a "get rich quick scam" and had been caught deliberately marketing the Probitas product in a false and misleading manner, the Commission wrote. These conclusions were reached after a nine-day defended hearing in which all parties were given an opportunity to present their cases. In the complainant's view, when the relevant evidence was considered in totality the programme fell well short of broadcasting standards.

[29]   The Commission submitted that by selectively presenting evidence and information, the broadcaster deprived viewers of the opportunity to reach a properly informed view on the merits of the Commission's investigation into and prosecution of Probitas Ltd and Mr Campbell.

Portrayal of Dr Edmeades

[30]   In the complainant's view, the way in which the documentary dealt with Dr Edmeades was not fair, impartial, or accurate.

[31]   The Commission acknowledged that the presenter had asked Dr Edmeades about his connections with the major fertiliser companies. However, it said, the manner and order of presentation were plainly designed to leave the viewer with the impression that Dr Edmeades was a biased witness serving the interests of the those companies. Despite Dr Edmeades saying in the programme that the judge found he had not modified his opinion for financial gain, the overall impression left by the programme was that he was a biased witness.

[32]   The complainant asserted that this impression did not accurately reflect the court's findings. The judge had referred to specific criteria he had used to assess the value of Dr Edmeades' evidence as an expert, but none of these criteria was referred to in the programme. The Commission contended that it was clear the 60 Minutes reporter had rejected Dr Edmeades' credibility and objectivity, but without the viewer knowing why the court accepted his evidence.

[33]   In stark contrast, the complainant wrote, no challenge was made to the farmers who were interviewed in the programme. There was no evidence that they had any scientific knowledge which would have enabled them to testify that the results they claimed to be enjoying were due to Probitas. Further, the programme did not explore whether their results could have been due to other factors. In the Commission's view, the sole purpose of interviewing the farmers was to discredit Dr Edmeades and the Commission.

[34]   The complainant contended that it was fallacious to challenge a witness's evidence on the basis that they may have had a commercial relationship with someone selling products within their area of expertise. It wrote:

It is the validity of the argument and the soundness of the views which matter, not the identity of the person who expresses them. As the judge observed Dr Edmeades was qualified; neither Mr Campbell nor any of the farmers shown on the programme had any scientific qualifications.

[35]   In the Commission's view, the reporter had endorsed, by manner and tone, the claims of Probitas Ltd and Mr Campbell which the judge expressly rejected. This could have been an option, it said, if a proper, objective inquiry of their claims warranted that view. However, no examination of their claims had been undertaken; only a token pursuit when the reporter said to Mr Campbell "they are saying that your science is voodoo science and that it can't possibly work". The topic was then changed to "set the scene for the programme's criticism that the Commission and its expert were in league with the two big fertiliser companies".

[36]   The complainant said there were a number of specific passages with which it took issue, and gave the following examples:

  • The question "So why did they prosecute?" was answered, not by the Commission, but by Dr Edmeades. His answer, which only dealt with the science, was plainly not the whole answer.
  • The presenter said the case against Probitas stood or fell "on the evidence of this man, the Commission's only expert witness" (referring to Dr Edmeades), implying that the Commission was under an obligation to adduce the evidence of more than one expert. This was a remarkable suggestion given that Mr Campbell deliberately chose to adduce no scientific evidence, and the programme makers made no enquiries of their own as to the merits of Probitas.

[37]   The Commission maintained the view that the treatment of Dr Edmeades in the programme was unfair, partial and inaccurate. It contended that the programme and its promos breached Standards 4, 5 and 6 of the Television Code.

Standards

[38]    TVWorks assessed the complaint under Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice, which provide:

Standard 4 Balance

In the preparation and presentation of news, current affairs and factual programmes, broadcasters are responsible for maintaining standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Standard 5 Accuracy

News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.

Standard 6 Fairness

In the preparation and presentation of programmes, broadcasters are required to deal justly and fairly with any person or organisation taking part or referred to.

Broadcaster's Response to the Complainant

Standard 4 (balance)

[39]    Looking first at Standard 4 (balance), TVWorks said that the programme had focused on the factors leading to Mr Campbell and Probitas Ltd being found liable by the District Court for making false and misleading representations about the Probitas soil conditioning system. In particular, it said, the item looked at the adequacy of the Commission's investigation and subsequent prosecution, noting that the Commission had decided not to gather and present any on-site evidence from any of the properties where the system was allegedly being used with beneficial results.

[40]    In the broadcaster's view, this issue could not be categorised as a "controversial issue" in the sense that there was an issue being debated by the public regarding the case. Even if it was, TVWorks said it did not consider that the programme had breached the requirements of Standard 4.

[41]    TVWorks contended that the material in the programme presenting a perspective "in favour" of the adequacy of the Commission's investigation and prosecution was sufficient to inform viewers that:

  • the Commission's decision not to gather on-site evidence had apparently been vindicated given the successful outcome of its prosecution
  • the expert witness relied on by the Commission, Dr Edmeades, presented as suitably qualified, credible and well-considered and was assessed as being objective and impartial by the District Court judge
  • the Commission, its expert witness and the judge all agreed the Probitas system was without scientific foundation.

[42]    The broadcaster maintained that the focus of the programme was not on the relative merits of, or the science behind, the chemical-free Probitas system compared with conventional chemical-based fertilisers. Nor did the programme purport to be an in-depth exploration or analysis of such complex issues, it said. The science behind Probitas was not presented in any detailed way, TVWorks wrote, although there was some limited reference to it in order to provide some background to the story.

[43]    In these circumstances, TVWorks considered that Standard 4 had no application and, even if it did, viewers were adequately advised of other key perspectives to enable them to arrive at an informed and reasoned opinion in relation to the issues presented. It was satisfied that the requirements of Standard 4, if it applied to the programme, were met.

Standard 5 (accuracy)

[44]    The broadcaster noted the complainant's contention that the programme "failed to adequately refer to scientific evidence presented by the Commission" and that it was misleading to say that the Commission and the court relied solely on Dr Edmeades' evidence. It disagreed that the programme was inaccurate, stating that the programme made it clear that the Commission, the expert witness and the judge all agreed that Probitas was without scientific foundation. TVWorks said that viewers would "well understand that the court had determined that the system 'could not work'".

[45]    The broadcaster maintained that the programme did not purport to be an in-depth exploration or analysis of the pros and cons of the chemical-free Probitas system compared with conventional fertilisers, although these issues were touched on superficially in the programme.

[46]    In relation to the Commission's allegation of inaccuracy, the broadcaster did not consider that the programme "failed in any material way" to present facts accurately. Looking at some of the specific matters raised by the complainant, the broadcaster said it had sought input from the programme makers, who gave the following comments:

  • The District Court judge himself had said that the Commission's case stood or fell on Dr Edmeades' evidence, and the programme repeated this.
  • Dr Edmeades admitted being opposed to organic fertiliser and having connections with large fertiliser companies. The programme did not allege that he was "accordingly biased", but questioned whether he had a conflict of interest and whether it was appropriate for the court to rely on his evidence. This was a legitimate question to explore.
  • Dr Edmeades was given substantial opportunity to rebut the suggestion that his conflict of interest might have affected the outcome of the case.
  • The Commission's complaint implied that the judgment of the court was correct and beyond scrutiny. It was the function of programmes like 60 Minutes to scrutinise the judicial system.
  • An explanation of certain provisions of the Fair Trading Act 1986 would not have assisted viewers' understanding of the issues; misrepresentation and misleading marketing were simple concepts to grasp and they incorporated the essence of those statutory provisions.
  • The programme did not seek to determine the merits of the Probitas system, nor did it endorse the system. The reference to Mr Campbell "tapping into electromagnetic flows and using stuff like silica" was preceded by the reporter saying "believe it or not". The reporter also suggested the system was "voodoo science" which "can't possibly work", which cast doubt on the merits of the system.
  • The alleged omissions (see paragraph [26]) did not relate to the programme or broadcasting standards. It was not possible to include all material in one programme.
  • The second set of charges against Mr Campbell, relating to his promotional video, were brought just days before the case was due to open. It was the dilatory nature of the charges which resulted in the proceedings being split in two.
  • The programme did point out that the Commission and the court found that Probitas did not work and that Mr Campbell was fined for false representation.
  • The programme did not suggest, as the complainant argued, that the Commission was trying to prevent Probitas Ltd from continuing to operate.

[47]    TVWorks maintained that the programme did not present any inaccurate material, nor was it misleading to the viewer.

Standard 6 (fairness)

[48]    The broadcaster recognised that the programme "robustly set out" Mr Campbell's case. It raised serious questions about the Commerce Commission's decision to prosecute, the court's judgment and the independence of the expert witness. However, it wrote, the programme also contained a significant amount of material from both the Commission and Dr Edmeades, who were challenged to defend the steps and positions that had been taken in the prosecution.

[49]    In TVWorks' view, while the interviews were challenging, they were not unfair. The questions did address the "somewhat surprising element of the prosecution that no evidence had been adduced from farmers actually using the system". Most viewers, it said, would expect that evidence would have been investigated by the Commission prior to bringing a prosecution, and would not have understood that the question for the court is solely whether the representation (once established) can be scientifically supported. These points were made by the Commission and Dr Edmeades, TVWorks wrote, and they explained the position taken by the Commission and the basis for the court's decision. It maintained that "apart from some wry humour the tone and delivery of the reporter's questioning was even and fair".

[50]    With respect to the farmers who were interviewed in the programme, the broadcaster said that the programme did not claim that the farmers had any scientific knowledge. They were simply recounting their experiences with Probitas. TVWorks asserted that the programme was making the point that the Commission failed to gather any empirical evidence as to the efficacy or otherwise of the product. By contrast, the reporter contacted users of the Probitas system "and found only praise for it".

[51]    In terms of the Commission's suggestion that the treatment of Dr Edmeades reflected the biased view of the programme makers, the broadcaster contended that Dr Edmeades had been given ample chance to have his say. Further, 60 Minutes had subsequently contacted Dr Edmeades, who said he had no complaint about the programme and was comfortable with what was broadcast.

[52]    In these circumstances, TVWorks considered that the Commission's perspective was presented adequately and in a manner that was both fair and just to the Commission, the court, and Dr Edmeades. It found no breach of Standard 6, and declined to uphold the complaint

Referral to the Authority

[53]   Dissatisfied with the broadcaster's decision, the Commission referred its complaint to the Authority under section 8(1B)(b)(i) of the Broadcasting Act 1989.

Standard 4 (balance)

[54]   The complainant maintained that the issue of false representations by persons in trade was plainly a matter of public importance; this followed from the fact that it was the subject of specific statutory control under the Fair Trading Act 1986. Further, the conduct of the Commission in prosecuting breaches of that Act was also a matter of public importance.

[55]   In respect of whether the issues were "controversial", the complainant argued that the programme had criticised the Commission and thereby had raised a controversy. It noted that an issue of public importance did not need to already have been controversial, but could become controversial by the manner in which it was raised in a broadcast. It wrote:

In the course of the programme TV3 criticised the Commission for prosecuting Probitas and Mr Campbell without first having conducted any field trials on the efficacy of the product marketed by them. Notwithstanding that the onus of proving that the product did not work in the manner represented rested upon the Commission, as the prosecuting agency, such a criticism is the complete reversal of the rule that he who asserts the truth of a proposition or makes claims (in this case Probitas and Mr Campbell) must prove the truth of the proposition or those claims. That criticism is itself highly controversial and by broadcasting the programme, TV3 raised such a controversy.

[56]   The complainant described as "specious" the broadcaster's contention that the programme did not focus on the merits of the science relating to Probitas. It contended that the whole thrust of the programme was that there were many farmers who were satisfied with the product and who attested to its merits, that the Commission had undertaken no field trials whatsoever to ascertain the merits of the product, and had relied on the evidence of a biased expert. All of this, the programme implied, made it highly improper for the Commission to pursue Probitas and Mr Campbell in the manner that it had. The complainant maintained that the programme clearly implied that the Commission had no proper basis for prosecuting Probitas and Mr Campbell and, in particular, lacked proper independent scientific evidence for doing so, and that the court should not have convicted them.

Standard 5 (accuracy)

[57]    The Commission rejected TVWorks' argument that viewers would have clearly understood that the Commission, its expert witness and the judge all agreed that Probitas was without scientific foundation. It wrote:

This is not an adequate response to the Commission's complaint. The whole point of the programme was to criticise the actions of the Commission, its expert witness and the court itself in accepting the expert's evidence and entering convictions against Probitas and Mr Campbell.

[58]   The complainant noted that the broadcaster had acknowledged that the programme had "robustly set out" Mr Campbell's case. Once TVWorks had elected to criticise what had occurred, it wrote, it was incumbent on the broadcaster to state accurately all relevant facts and matters which led to the prosecution of and convictions against Probitas and Mr Campbell, so that viewers could judge for themselves the validity or fairness of those criticisms. The Commission said that, in fact, 60 Minutes had failed to accurately represent what had happened by deliberate omission so as to present a slanted and biased account of the issues.

Standard 6 (fairness)

[59]   The Commission did not accept TVWorks' contention that the reporter's questioning was "even and fair", or the assertion that this was an adequate response to its complaint. The interviews had to be assessed in the context of the programme as a whole, it said. The ordering and juxtaposition of the interviews and comments made it clear that the programme makers did not set out to explore the issues with any independence, but set out to use the interviews with Mr Thorn and Dr Edmeades as a platform to criticise the Commission, the court and Dr Edmeades. In the complainant's view, the order and manner of presentation was not fair.

[60]    Noting the broadcaster's assertion that Dr Edmeades had no complaint about the programme, the Commission said it had requested a response from Dr Edmeades. He responded:

It is correct that I told [60 Minutes] the programme was OK. It was not what I actually believed and I regret having said so.

...I agonised over my involvement, but I decided to do the interview because I thought if I did not, it would appear as if I did not have the "courage of my convictions". The filmed interview was for over one hour... it was clear to me that [the reporter] was approaching the issue for "the other side". This bias was clear to me when I saw the programme. I thought I was being interviewed in respect of the science of the matter. None of this - what is the product, what does it contain, can it work (i.e. what are the facts) was shown on the programme. The programme did not even define what "it" was.

...My view was, and is, that the programme was an appalling piece of journalism. It was neither fair nor balanced. The main story was not about the facts of the case but was a slanted presentation that a poor family man had been picked upon by the big boys for coming up with a remarkable product. The programme portrayed me as being in bed with the big fertilizer companies. This is, in fact, nonsense and both companies subsequently put out media comment to say they had the greatest respect for me, noting my fierce independence. In the days following the broadcast I was inundated with abusive emails about my role in the case. Four jobs (farm advisory) I had were cancelled. The written agricultural press was swamped with commentary from Probitas and its supporters, most of it very derisive of me.

[61]    In light of Dr Edmeades' response, the Commission submitted that the Authority should require TVWorks to produce the unedited interview with Dr Edmeades in order to assess whether he was unfairly treated. It also submitted that the Authority should require the broadcaster to produce the entire interview with Mr Thorn to assess whether the presentation of the Commission's view was "even and fair".

[62]    The Commission submitted that TVWorks had not addressed its complaints about the programme's failure to:

  • refer to the legal basis of the Commission's case and the issues considered by the court
  • adequately refer to the scientific evidence presented by the Commission
  • address the relevant conduct of Probitas Ltd and Mr Campbell.

[63]    In addition, the complainant said that TVWorks had not answered its complaint that the programme misrepresented the court's findings. It maintained that the programme was unfair to the Commission and Dr Edmeades.

Further Information Requested by the Authority

Request to TVWorks

[64]    The Authority asked TVWorks to comment on the Commission's complaint that the programme promo was unfair because it implied that Mr Thorn was "using his media training to avoid answering questions put to him". It also asked the broadcaster to specify the number of times that this promo was broadcast.

TVWorks' response

[65]    The broadcaster stated that 31 promos had been broadcast, but not all of them had included the reporter's comment to Mr Thorn about him not answering her questions.

[66]    TVWorks stated that the reporter had been asking Mr Thorn about Dr Edmeades' independence, and also about the Commission "never having set foot on a farm" during its investigation. Mr Thorn had avoided giving his views, it wrote, and kept referring the reporter to the court judgment. TVWorks contended that Mr Thorn had been stonewalling on these two important questions and this had led to the reporter's comment which was shown in the promo.

[67]    The broadcaster explained that the programme had initially included the part of the interview with Mr Thorn that was shown in the promo, but it had been dropped to meet time constraints. It considered that the promo was not unfair to Mr Thorn.

Further request by the Authority

[68]    The Authority asked TVWorks to provide a recording of the segment of the interview which included the line of questioning preceding the excerpt that was used in the promo. The Authority explained that this was necessary because, without having seen the lead-up to the reporter's comment, it was unable to determine whether the extract shown in the promo was a fair reflection of the interview.

TVWorks' response

[69]    TVWorks responded that the field tape of the interview with Mr Thorn was no longer held "in accordance with normal processes" so it was unable to provide the portion sought by the Authority.

Request to the Commerce Commission

[70]    The Authority asked Mr Thorn of the Commission to provide answers to the following questions:

  1. Do you recall the sorts of answers you gave to the reporter's questions in the interview, leading up to the excerpt that was shown in the promo?
  2. What is your response to TVWorks' assertion that you were deliberately stonewalling the reporter's questions?
  3. Do you consider that the promo was a fair reflection of that part of the interview?

The Commission's response

[71]    The Commission denied TVWorks' assertion that Mr Thorn was deliberately stonewalling the reporter. It said that Mr Thorn had attended the interview as a representative of the Commission, and accordingly it was proper for him to decline to answer any questions from a personal perspective. It maintained that the reporter's questions had related to matters which were currently sub judice due to the second trial involving Probitas, and that Mr Thorn had told the reporter he would be unable to comment on these matters.

[72]    The Commission provided some notes which were taken during the interview with Mr Thorn by the Commission's communications manager.

Further Response from the Broadcaster

[73]    TVWorks provided extensive notes from the interview with Mr Thorn that had been taken by the reporter. It noted that neither the reporter's notes nor the Commission's notes were absolutely reliable, and argued that any doubt must be exercised in favour of the broadcaster.

[74]    The broadcaster denied that Mr Thorn had been asked to respond in his personal capacity; it said the reporter had made it clear she was asking him to respond in an official capacity.

Authority's Determination

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

Standard 4 (balance)

[76]    Standard 4 requires that balance be provided when controversial issues of public importance are discussed. On this occasion, the 60 Minutes item discussed whether the Commerce Commission was justified in prosecuting Ewan Campbell and his company for making misleading representations about Probitas, without having conducted field trials and with no complaints from farmers using the product.

[77]    The Authority agrees with the complainant that the programme discussed a controversial issue of public importance to which the balance standard applies. The issue of companies making false representations about products they are selling in the New Zealand market is a matter of public importance, particularly when those products have the potential to adversely affect one of the country's major industries. Further, questioning whether the Commerce Commission has brought an unwarranted prosecution against such a company constitutes a controversial issue of public importance.

[78]    In its complaint, the Commission outlined a number of matters which it argued should have been included in the programme in order to meet the requirement for balance in Standard 4. The Authority deals with each issue below.

Failure to address the relevant conduct of Probitas Ltd and Mr Campbell

[79]    The Commission argued that highly relevant information about the conduct of Probitas Ltd and Mr Campbell was omitted from the programme. It gave several examples which are outlined in paragraph [26] above. In the Authority's view, the bulk of this information was not relevant or essential to viewers' understanding of whether the Commission was justified in prosecuting Mr Campbell and Probitas Ltd.

[80]    However, the Authority agrees with the Commission that the broadcaster did omit critical information from the programme which led to the item being unbalanced.

[81]    In order for viewers to assess whether it was reasonable for the Commission to prosecute Mr Campbell, they required information about Mr Campbell's actions and his credibility. The Authority notes that the broadcaster had the judgment and sentencing notes in the prosecution of Mr Campbell and Probitas Ltd. In these documents, Judge Callander made several comments which the Authority considers were essential to viewers' perceptions of Mr Campbell, and whether he genuinely believed he had "invented a way to make farms grow faster". The court judgment was made after a nine-day trial, where Mr Campbell was given the opportunity to present his side of the story, and on the basis of a substantial body of information.

[82]    The judge accepted that the representations made by Mr Campbell were not based on scientific principles, and that the product was "snake oil". He found that Mr Campbell's marketing of the "ineffective product" Probitas was clearly deliberate, and agreed with the prosecutor's description of the scheme as a "get rich quick scam". In the judge's view, the deliberate deceptive marketing had "very significant potential to harm the general farming public". He said:

It was clearly in my view, to use Judge Lindsay Moore's terminology, "a cynical pursuit of profit". Mr Campbell had created this product, which had very little of benefit to it. He had marketed it. He had put a spin on his marketing, and members of the farming community bought into that and believed it. Human beings are seemingly able to believe almost anything.

[83]    The judge also noted that Mr Campbell had failed to testify at the hearing, and that the one witness he had called to testify to the effectiveness of Probitas had also been applying other forms of fertiliser to his farm. The judge wrote:

...a Judge, in deciding what weight should be given to the evidence, may take into account the failure of the defendant to give, by his own evidence or by that of others, the explanations which he might naturally be expected to give if he were innocent. In my clear view, the fact that Mr Campbell has chosen not to answer the criticisms of Dr Edmeades by explaining his system to me in person, adds considerable weight to the prosecution case. I draw the inference from his failure to explain the system that, faced with Dr Edmeades' detailed and compelling contradictory testimony, he was struggling to come up with a credible response.

[84]    The Authority considers that the judge's statements were highly relevant to the controversial issue under discussion. The reporter asked the question "So why did [the Commerce Commission] prosecute?", and viewers of 60 Minutes needed to understand the full extent of Mr Campbell's conduct in order to make a proper assessment of the facts. Without this information, the Authority finds that the programme presented a sympathetic view of a farmer who maintained that he had not done anything wrong, and that his product worked in the way he claimed it did.

[85]    Because Judge Callander's findings were in direct conflict with the information being put forward by Mr Campbell, the Authority considers that the broadcast omitted a significant perspective which was critical to viewers' ability to reach an informed view on the issue under discussion. Accordingly, the Authority finds that the broadcaster did not meet the requirements of Standard 4 (balance) in this respect.

[86]    The Authority acknowledges that TVWorks was exercising its right to freedom of expression (section 14 of the New Zealand Bill of Rights Act 1990) in broadcasting the item which questioned the actions of a government department. The Authority has acknowledged the importance of section 14 and the values underlying the right to freedom of expression.1 However, "the right of freedom of expression is not an unlimited and unqualified right".2 The Authority must ensure that, if it is considering upholding this part of the balance complaint, the restriction on the broadcaster's right to freedom of expression is prescribed by law, reasonable, and demonstrably justifiable in a free and democratic society (section 5 of the Bill of Rights Act 1990).

[87]    First, the Authority must assess whether, by upholding this part of the complaint, the limit placed on the broadcaster's section 14 right would be "prescribed by law". Parliament has recognised the importance of balance in section 4(1)(d) of the Broadcasting Act 1989, which states:

(1)   Every broadcaster is responsible for maintaining in its programmes and their presentation, standards that are consistent with -

(d)   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.

[88]    Further, the Codes of Broadcasting Practice have been developed in conjunction with broadcasters and approved by the Authority. The requirement in Standard 4 is drafted in accordance with Parliament's intention, and the wording closely matches that in section 4(1)(d) above. For these reasons, the Authority considers that upholding a complaint under Standard 4 (balance) would be prescribed by law.

[89]    Second, the Authority must consider whether upholding this part of the balance complaint would be a justified limitation on the right to freedom of expression. The Authority has previously stated that the balance standard exists to ensure that competing arguments are presented to enable a viewer to arrive at an informed and reasoned opinion.3 The standard only applies to programmes which discuss "controversial issues of public importance", and therefore this objective is of vital importance in a free and democratic society. Accordingly, the Authority considers that upholding a complaint under the balance standard would place a justified limitation on a broadcaster's right to freedom of expression.

[90]    Third, the Authority must consider whether it would be a reasonable and proportionate limit on TVWorks' freedom of expression to uphold a breach of the balance standard on this occasion. As discussed above, the significant perspective which was omitted from this programme was critical to viewers' ability to reach an informed view on the controversial issue under discussion. Upholding this part of the balance complaint would signal the importance of providing the public with significant viewpoints when controversial issues of public importance are discussed. Accordingly, upholding this part of the complaint would clearly promote the objective of Standard 4 (as outlined in paragraph [89] above).

[91]    In these circumstances, the Authority finds that upholding this part of the complaint places a justified and reasonable limit on TVWorks' freedom of expression. It therefore upholds the complaint that the programme breached Standard 4 in this respect.

The legal basis of the Commission's case and the issues considered by the Court

[92]    The complainant argued that the programme should have given more information about the legal basis for the Commission's case, and explained the relevant provisions of the Fair Trading Act. In the Authority's view, the programme contained sufficient information to give viewers an understanding of the essential nature of the Commission's case – that Mr Campbell's claims were not supported by scientific evidence.

[93]    The Authority also agrees with the broadcaster that the programme did not require a description of the Fair Trading Act provisions. The reporter's references to "misleading claims" explained the charges Mr Campbell and Probitas were facing in easily understood terms. A more technical explanation of the individual provisions was not required. The Authority declines to uphold this part of the balance complaint.

Scientific evidence presented by the Commission

[94]    The complainant argued that the programme should have referred to the scientific evidence upon which the court concluded that the representations regarding Probitas were false and misleading. It noted that the programme included Mr Campbell's explanation that Probitas worked by "tapping into electromagnetic flows and using stuff like silica " and "the right type of silica...lifts nutrient availability, stimulates the microbiology and enhances plant production".

[95]    In the Authority's view, the broadcaster was not required to provide viewers with a detailed explanation of the scientific evidence behind the Commission's case in order to meet the requirement for balance. The programme clearly explained Dr Edmeades' view that the product had no scientific basis, and that the judge accepted his view. For example, Dr Edmeades said:

"Based on...the scientific evidence accumulated to date, and based on what that product contains, and based on its claimed mode of action, it cannot work as advertised."

"...if you analysed the product and looked at how...it's claimed to work, you have to reach the conclusion that this stuff's ineffective."

[96]    Dr Edmeades also responded directly to Mr Campbell's explanation of how Probitas worked, stating that Mr Campbell's claim about voltage differences within the soil was "just absurd".

[97]    The Authority considers that the programme gave viewers sufficient information with which to understand the Commission's case that the Probitas system had no scientific basis, and it reported that the judge had accepted the evidence of Dr Edmeades in this respect. In the Authority's opinion, any further detail would not have added to viewers' understanding of the controversial issue under discussion. The Authority declines to uphold this part of the balance complaint.

Standard 6 (fairness)

Field Tapes

[98]    The complainant submitted that the Authority should require the broadcaster to produce the full interviews with Mr Thorn and Dr Edmeades to assess whether the broadcaster treated the Commission and Dr Edmeades fairly.

[99]    The Authority has the power, under section 12 of the Broadcasting Act 1989 and sections 4C(1)(b) of the Commissions of Inquiry Act 1908, to require parties to produce information or documents. In Decision No. 2002-179, the Authority stated that the intent of these statutory provisions was to allow it to obtain material only if it was necessary "to deal effectively with the subject of the inquiry". The Authority said that it was "not inclined to exercise its powers unless a persuasive case to do so is advanced".

[100]    In this case, the Authority is not persuaded that viewing the entire field tapes of the interviews with Mr Thorn and Dr Edmeades would assist it in determining the complaint. Accordingly, it proceeds to determine the fairness complaint in the usual manner – with reference to the written correspondence and a recording of the broadcast.

Unfairness to the Commission – omission of information

[101]    In paragraphs [79] to [85] above, the Authority has upheld the complaint that the programme was unbalanced because it omitted crucial information from the court judgment and sentencing notes in the case against Mr Campbell. Viewers were deprived of information that was highly relevant to the controversial issue under discussion – whether the Commerce Commission was justified in prosecuting Ewan Campbell and his company for making misleading representations about Probitas.

[102]    For the same reason the Authority considers that the broadcaster treated the Commission unfairly. The judge's comments about Mr Campbell's conduct would undoubtedly have influenced the way viewers assessed whether the Commission was justified in prosecuting Mr Campbell and his company. In particular, the Authority finds relevant the judge's comments that Mr Campbell had deliberately marketed the product in a misleading way, was engaged in a "get rich quick scam" and "a cynical pursuit of profit". Not only did the judge accept the Commission's view that there was no scientific basis to Probitas, he held that Mr Campbell had knowingly made false and misleading claims about the product's effectiveness.

[103]    In the Authority's view, the broadcaster did not fairly present the Commission's side of the story, and this led to the Commission being portrayed in an unfavourable light. Accordingly, the Authority finds that the broadcaster treated the Commission unfairly.

[104]    As discussed above in relation to the balance standard (see paragraph [86]), the Authority acknowledges that upholding this part of the fairness complaint would place a limit on the broadcaster's right to freedom of expression.

[105]    First, the Authority must assess whether, by upholding this part of the fairness complaint, the limit placed on the broadcaster's section 14 right would be " prescribed by law ". Parliament has recognised the importance of the fairness standard by requiring the Authority to develop codes of broadcasting practice in relation to "fair and accurate programmes and procedures for...redressing unfairness".4 Further, the Codes of Broadcasting Practice have been developed in conjunction with broadcasters and approved by the Authority. The requirement in Standard 6 that broadcasters must deal justly and fairly with any person or organisation taking part or referred to in a programme is, in the Authority's view, precisely what was intended by Parliament in drafting the Broadcasting Act. For these reasons, the Authority considers that upholding a complaint under Standard 6 (fairness) would be prescribed by law.

[106]    Second, the Authority must consider whether upholding this part of the fairness complaint would be a justified limitation on the right to freedom of expression. In the Authority's view, 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. Accordingly, the Authority considers that upholding a complaint under the fairness standard would place a justified limitation on a broadcaster's right to freedom of expression.

[107]    Third, the Authority must consider whether it would be a reasonable and proportionate limit on TVWorks' freedom of expression to uphold a breach of the fairness standard on this occasion. The Authority has found above that the programme omitted information which led to the Commerce Commission being unfairly portrayed. The programme questioned the Commission's judgment on a matter that was central to its operations; had the additional information been included, the Authority considers that viewers would have been left with a very different impression about the Commission's actions in this case.

[108]    Upholding a breach of the fairness standard on this occasion would not prevent broadcasters from questioning the actions of government organisations. Rather, it would ensure the performance of such organisations is portrayed in a fair manner. In this respect, upholding this complaint clearly promotes the objective of Standard 6 (as outlined in paragraph [106] above).

[109]    In these circumstances, the Authority finds that upholding this part of the fairness complaint places a justified and reasonable limit on TVWorks' freedom of expression. It therefore upholds the complaint that the Commission was treated unfairly in this respect.

Unfairness to the Commission – heavy-handed tactics

[110]    The Commission also argued that the programme unfairly implied that it had used heavy-handed and bullying tactics when investigating, prosecuting, and enforcing penalties against Probitas Ltd and Mr Campbell. It specifically referred to Mrs Campbell's comment in the programme "they come at us with such bully tactics".

[111]    The Authority does not uphold this part of the complaint. Mrs Campbell was clearly expressing her opinion about how it had felt to have the bailiffs arrive at their home and seize their vehicles. The Authority finds that reasonable viewers would have understood that this was part of the court process when fines have not been paid; the programme did not imply that the Commission was seizing their vehicles.

Unfairness to the Commission – impression that the Commission was avoiding questions

[112]    The Authority also declines to uphold the complaint that the programme implied the Commission was avoiding answering questions regarding the investigation and prosecution of Probitas Ltd and Mr Campbell. Geoff Thorn was interviewed on the programme, and this showed that the Commission was willing to engage with the broadcaster and the public in order to explain why Mr Campbell and his company had been prosecuted.

Unfairness to the Commission – promos

[113]    The Commission argued that the promo showing the reporter's comment "I don't know how much media training you've had, just to not answer my questions..." was unfair.

[114]    As outlined in paragraphs [64] to [74] above, the Authority requested further information from the parties in respect of the promo complaint. It has carefully reviewed the notes provided by the Commission and the reporter.

[115]    In the Authority's view, the promo was not unfair to the Commission. It is likely that Mr Thorn did not understand the angle the reporter was taking, as he genuinely believed that the court judgment answered all her questions. However, the fact remains that the reporter's comment was prompted by genuine frustration that she felt Mr Thorn was refusing to provide a response on behalf of the Commission. Having reviewed the notes provided by both parties, the Authority considers that the excerpt used in the promo was a true and fair reflection of the interview.

[116]    The Authority declines to uphold this part of the complaint.

Unfairness to Dr Edmeades

[117]    The complainant argued that viewers would have been left with the impression that Dr Edmeades was a biased witness serving the interests of the major fertiliser companies, and therefore the broadcaster did not treat him justly or fairly. The Authority disagrees. Dr Edmeades was given a reasonable opportunity to present his view on the scientific merits of Probitas, and he was allowed specific opportunities to rebut the criticisms that Mr Campbell was making about his alleged bias. Viewers were given sufficient information to decide for themselves whether Dr Edmeades was a credible and reliable witness, and the programme clearly stated that the judge had accepted his evidence.

[118]    The Authority does not uphold this part of the fairness complaint.

Standard 5 (accuracy)

[119]    The Commission argued that a number of aspects of the programme were misleading or inaccurate. The Authority considers each allegation below.

The effect of the court's findings

[120]    The Commission argued that the programme left the impression that the Commission, the expert witness and the court were trying to prevent Probitas Ltd and Mr Campbell from legitimately operating their business. The Authority does not agree that the programme left this impression. The programme did not include any statements or implications as to whether Mr Campbell could continue to sell Probitas. Accordingly, the Authority concludes that the programme was not misleading or inaccurate in this respect.

Heavy-handed tactics

[121]    As discussed in paragraph [111] above, the Authority considers that viewers would have understood that Mrs Campbell was conveying her opinion that she had felt bullied by "the system", including the seizure of vehicles by court bailiffs. Her comment was not directed specifically at the Commission, and the programme did not contain any suggestion that the Commission had acted outside its authority or in an unduly harsh matter. The Authority finds that the programme did not mislead viewers in this respect, and therefore it does not uphold this part of the complaint.

Two separate proceedings

[122]    This part of the Commission's complaint refers to the following statement at the end of the item by the reporter:

Ewan Campbell's battle with the Commerce Commission isn't finished yet. They've already prosecuted him over his brochures and CDROMs. Now they're taking him on over his videos – the court hearing scheduled for next month.

[123]    The Authority disagrees with the complainant that the reporter's statement implied that the Commission had elected to pursue Mr Campbell and Probitas Ltd in two separate proceedings. The statement gave no indication of why the charges were being heard separately, just that there were further charges pending. Accordingly, the Authority finds that the statement was not misleading or inaccurate.

[124]    The Authority declines to uphold the accuracy complaint.

 

For the above reasons the Authority upholds the complaint that the broadcast of an item by TVWorks Ltd on 60 Minutes on 15 October 2007 breached Standards 4 and 6 of the Free-to-Air Television Code of Broadcasting Practice.

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

[126]    The Commission submitted that the Authority should order TVWorks to broadcast a statement summarising the decision during 60 Minutes. It said that this would "go some way towards remedying the imbalance" created by the omission of critical information. It contended that this was also the most effective way to alleviate the unfairness caused to the Commission. The complainant attached 56 emails which were received in the two weeks following the programme, 50 of which criticised the Commission's conduct as presented in the programme.

[127]    The Commission stated that it had incurred legal costs in the amount of $6547.50, and it sought 50% of that amount from TVWorks. It argued that the complaint was not straightforward, raised a number of issues, and was set against a detailed and complex factual background. The Commission submitted that it was justified in seeking legal advice to protect its reputation and the reputation of its staff members, particularly in light of the critical feedback it had received.

[128]    The complainant also argued that the broadcaster's conduct amounted to a serious departure from broadcasting standards, and therefore TVWorks should be ordered to pay costs to the Crown.

[129]    TVWorks submitted that no penalty should be imposed on this occasion. It argued that the publication of the decision would be sufficient to remedy the breaches of balance and fairness. In the broadcaster's view, the Commission's ability to make the decision findings known to the public should be taken into account.

[130]    With respect to legal costs, TVWorks argued that the Commission should have been able to deal with the complaint "in-house" as the complaints process was intended to be straightforward.

[131]    In TVWorks' view, an order of costs to the Crown would not be justified. It said that "these were not breaches at the serious end of the scale".

The Authority's Decision on Orders

[132]    The Authority orders TVWorks to broadcast a statement during 60 Minutes containing a comprehensive summary of this decision. The statement must be presented verbally and also visually on screen. It must include a comprehensive summary of the statements made by Judge Callander, as outlined in paragraphs [82] and [83] above. This will ensure that 60 Minutes viewers are provided with the critical information that was omitted from the original item.

[133]    The Authority also considers that an order of costs to the Crown is justified on this occasion. In determining the quantum of that award it has had regard to similar decisions (see for example Decision No. 2006-058) where programmes have omitted significant information which has led to a breach of the balance standard, and an organisation being treated unfairly. In this case, the Authority concludes that TVWorks should pay costs to the Crown in the amount of $2,000.

[134]    In determining whether to order a contribution towards legal costs, the Authority does take into account the relatively straightforward complaints process. However, it considers that it was not unreasonable for the complainant to be concerned about protecting its reputation, and the reputation of its staff, and to seek legal advice in pursuing its complaint. Organisations with in-house legal staff are entitled to seek external legal advice where necessary.

[135]    The Authority's policy is that costs awards will usually be in the range of one-third of costs reasonably incurred. It considers that the Commission's legal costs of $6547.50 are reasonable considering the complexity of the factual background and the number of substantive submissions that needed to be made. However, it finds that an award of one-third of those costs adequately reflects the circumstances of this case; there are no factors which would cause the Authority to increase or decrease that amount. Accordingly, it orders TVWorks to pay legal costs to the Commission in the amount of $2182.50.

[136]    The Authority has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 in making the above orders. The Authority considers the orders it has made on this occasion are consistent with the New Zealand Bill of Rights Act's requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.

Orders

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

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

  • be broadcast within one month of the date of this decision
  • be presented both verbally and visually on screen
  • be broadcast during 60 Minutes on a date to be approved by the Authority
  • contain a comprehensive summary of the Authority's decision, including the statements of Judge Callander outlined in the Authority's decision.

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

2. Pursuant to section 16(1) of the Act, the Authority orders TVWorks to pay to the complainant costs in the amount of $2182.50 within one month of the date of this decision.

3. Pursuant to section 16(4) of the Act, the Authority orders TVWorks Ltd to pay to the Crown costs in the amount of $2,000, within one month of the date of this decision.

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

Signed for and on behalf of the Authority

 

Joanne Morris
Chair
2 October 2008

Appendix

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

  1. The Commerce Commission's formal complaint – 12 November 2007
  2. TVWorks' decision on the formal complaint – 14 December 2007
  3. The Commerce Commission's referral to the Authority – 7 February 2008
  4. TVWorks' response to the Authority – 20 February 2008
  5. TVWorks' response to the Authority's request for information – 30 April 2008
  6. Further response from TVWorks – 20 May 2008
  7. The Commerce Commission's response to the Authority's request for information –
    9 June 2008
  8. Further response from TVWorks – 18 June 2008
  9. The Commerce Commission's submissions on orders – 9 September 2008
  10. TVWorks' submissions on orders – 19 September 2008

1See Decision No. 2008-040

2P v D and Independent News Auckland Ltd [2000] 2 NZLR 591, per Nicholson J

3Decision No. 2003-055 at paragraph [357]

4Section 21(1)(e) of the Broadcasting Act 1989