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FreeLife Pacific Area and Television New Zealand Ltd - 2006-073

Members

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

Complainant

  • FreeLife Pacific Area of Queensland, Australia

Dated

19th September 2006

Number

2006-073

Programme

One News

Channel/Station

TV One

Broadcaster

Television New Zealand Ltd


Complaint under section 8(1)(a) of the Broadcasting Act 1989
One News – item about an illegal advertising campaign for Goji Juice – product was being marketed to the Tongan community as being a cure for numerous diseases – allegedly unbalanced, inaccurate and unfair

Findings
Standard 4 (balance) – controversial issue was the marketing of Goji Juice – broadcaster not required to seek comment from manufacturer or from people who endorsed the product – not upheld

Standard 5 (accuracy) – no inaccuracies – not upheld

Standard 6 (fairness) – broadcaster did not exhaust every alternative legitimate way of obtaining Namoe Sau’s comment before arranging door-stepping interview (guideline 6b) – used deception to obtain her comment without making sufficient attempts to obtain the material by other means (guideline 6c) – broadcaster treated Ms Sau unfairly – upheld

No Order

This headnote does not form part of the decision


Broadcast

[1] An item on One News, broadcast on TV One at 6pm on 1 June 2006, said that the Ministry of Health was investigating an illegal advertising campaign for a product called Goji Juice. The item said that the juice was being marketed to Auckland’s Tongan community with claims that it could heal cancer, Aids, diabetes, respiratory problems, gout, arthritis, kidney, liver and heart disease.

[2] The report stated that Tongan newspapers were now refusing to run the advertisements, but people with serious health problems such as diabetes had already fallen ill after drinking the “sugar-laden” juice. It said:

What’s enraged victims and authorities is that those responsible for the false claims are in medical jobs. This man here on the right is Tongan doctor Etika Akauola. He says there is scientific evidence Goji Juice cures cancer and it’s safe for diabetics.

And Namoe Sau’s been working as a health promotions advisor at Manukau’s Procare Network. Namoe Sau no longer has her job at Procare. She resigned this week due to her selling Goji Juice.

[3] A Tongan woman who was taking Goji Juice was interviewed. The item said that she had begun taking the product after a radio advertisement mentioned it could cure high blood pressure. The woman said that the juice had caused her to feel dizzy, but that she had continued to take it based on the advertisement’s claims.

[4] The item reported that a representative from the Ministry of Health’s Medsafe had warned that the advertisements for Goji Juice were illegal. Dr Stewart Jessamine said:

It’s entirely unacceptable for a product which is essentially a fruit juice to advertise itself making really quite outrageous claims about health giving properties.

Complaint

[5] FreeLife Pacific Area’s general manager, Chris Cooper, made a formal complaint on behalf of the company to Television New Zealand Ltd, the broadcaster. He alleged that the item breached standards of balance, accuracy and fairness. FreeLife is the manufacturer of Himalayan Goji Juice.

[6] In respect of balance, Mr Cooper argued that the item did not show balance or impartiality. It had not allowed any person to express an opinion in favour of the product, he said, despite the fact that Goji Juice was currently being consumed by thousands of people in New Zealand. Further, he said that many independent health care practitioners and doctors extolled “the virtues of goji products”, yet they were not given the chance to comment.

[7] Mr Cooper said that no attempt had been made by One News to contact the company marketing Himalayan Goji Juice. The reporter had been contacted by Mr Cooper prior to the broadcast to “clarify certain facts, and yet none of these seem to have been taken into account with the aired segment ignoring many of the facts” outlined by him. In the complainant’s view, the broadcaster had not satisfied the requirements of Standard 4 (balance).

[8] Turning to consider Standard 5 (accuracy), Mr Cooper identified a number of statements in the item which he alleged were inaccurate. The statement that “the Health Ministry is investigating the illegal promotion of a juice claiming to heal cancer, Aids and a raft of other diseases” implied that the Ministry was investigating the juice itself. Mr Cooper asserted that the juice was not making these claims; rather, an individual had paid for and placed an advertisement in the Tongan newspaper.

[9] Mr Cooper disputed the item’s translation of the claims made in the advertisement. He said that it had not claimed that Goji Juice would “cure” diseases, but said that it “may assist with or support” treatment of those diseases.

[10] The statement that “the Tongan newspapers are now refusing to run these advertisements which make the disease-curing claims” was misleading, Mr Cooper said, because all newspapers in New Zealand were prohibited from running advertisements which made therapeutic claims for food products. The Taimi O Tonga newspaper had recently been reprimanded by both the Ministries of Health and Consumer Affairs over its breach of duty for encouraging, approving and running advertisements promoting health claims for Goji Juice, he wrote.

[11] Referring to the statement in the item that Dr Etika Akauola had said there was “scientific evidence Goji Juice cures cancer”, Mr Cooper maintained that Dr Akauola had told him that he had never made such a statement. This was a significant error of fact which was detrimental to Dr Akauola’s professional reputation, he said.

[12] The complainant contended that the following statement in the item was misleading and had unnecessarily alarmed many of the company’s customers:

Auckland’s Tongan community is the target of the advertising campaign, and some of them with serious health problems have fallen ill after drinking the juice.

[13] Mr Cooper maintained that Himalayan Goji Juice was a pure fruit juice which had been tested and approved by several agencies and was fit for human consumption. Millions of bottles had been sold world-wide and no harmful effects from consumers had been reported to the company, he said.

[14] The complainant also stated that describing Goji Juice as “sugar-laden juice” and “little more than fruit juice and a few vitamins” was misleading and alarming. He noted that Goji Juice was a pure fruit juice with no added sugars, and the naturally occurring sugars were in similar proportions to most other pure fruit juices. Further, it did not contain any added vitamins, only those which naturally occurred in the fruit juices on the label.

[15] Mr Cooper also argued that, contrary to the statement that Namoe Sau had resigned from her job “due to her selling Goji Juice”, Ms Sau had not lost her health job because of any connection with Goji Juice.

[16] Referring to guideline 5e and ensuring information sources were reliable, the complaint asserted that the reporter had confirmed that the “inspiration and main information source” for the segment was a woman who had “a personal vendetta” towards Goji Juice. This had been demonstrated by her public criticisms on other programmes, he said.

[17] Looking at Standard 6 (fairness), Mr Cooper referred to guideline 6b which deals with informing participants of “the reason for their proposed contribution and participation” in a programme. He contended that Namoe Sau had received a call asking her to deliver Goji Juice to an address, and upon her arrival she had been ambushed by the camera crew and reporter. She had been prevented from getting into her car, he said, forcing her to flee from the situation on foot.

[18] Mr Cooper also contended that the treatment of Ms Sau had breached guideline 6c because she had been deceived by the reporter who had “misrepresented herself in order to obtain this sensational footage”.

[19] The complainant wrote that he had emailed the reporter following the broadcast and had requested “direction as to any way that we might be offered an opportunity of response”. However, he had not received a reply. After sending a second email, the reporter had referred his email to the head of news. Mr Cooper had contacted this person and offered an interview with a doctor who endorsed Goji Juice, and also said he could provide dozens of local Aucklanders who would testify to the “miraculous” results they had experienced from consuming Goji products. He had not received a reply to this communication.

Standards

[20] TVNZ assessed the complaint under the Standards and guidelines nominated by the complainant. These provide:

Standard 4 Balance

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

Guideline 4b

No set formula can be advanced for the allocation of time to interested parties on controversial public issues. Broadcasters should aim to present all significant sides in as fair a way as possible, it being acknowledged that this can be done only by judging each case on its merits.

Standard 5 Accuracy

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

Guidelines

5a   Significant errors of fact should be corrected at the earliest opportunity.

5b   Broadcasters should refrain from broadcasting material which is misleading or unnecessarily alarms viewers.

5d   Factual reports on the one hand, and opinion, analysis and comment on the other, should be clearly distinguishable.

5e   Broadcasters must take all reasonable steps to ensure at all times that the information sources for news, current affairs and documentaries are reliable.

Standard 6 Fairness

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

Guidelines

6b   Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.

6c   Programme makers should not obtain information or gather pictures through misrepresentation or deception, except as required in the public interest when the material cannot be obtained by other means.

Broadcaster's Response to the Complainant

[21] TVNZ explained that the item had been broadcast after One News had discovered that, as a result of advice about Goji Juice given by prominent people in the Tongan community, a significant number of Tongans had stopped taking their regular medication and were instead taking Goji Juice. It said that One News was also aware of people taking Goji Juice and it had reacted badly with their prescription medicines.

[22] The broadcaster made a general observation that the complainant “appeared to have missed the point of the item”. It had not criticised the company that made Goji Juice, or Goji Juice itself. Rather, the item had questioned the way in which the product was being promoted and marketed to the Tongan community by a specific group of Tongan health professionals, TVNZ said.

Standard 4 (balance)

[23] In considering whether the item was balanced (Standard 4), TVNZ contended that the item did not require input from FreeLife, unless it had specific comment to make about the group of Tongan health professionals referred to. It noted that, in his correspondence with the reporter, Mr Cooper had not commented on the way in which the product was being marketed. The broadcaster reiterated that there was no criticism of FreeLife or Goji Juice which would have required balancing comment from the company. It said:

The required balance here was between the outrageous and unjustified claims of the small group of Aucklanders marketing the product, and the health and community leaders who had seen the damage caused to members of the Tongan community, taken in by the claims.

Standard 5 (accuracy)

[24] Turning to consider Standard 5 (accuracy), TVNZ dealt with each of the complainant’s points in turn.

“The Health Ministry is investigating the illegal promotion of a juice claiming to heal cancer, Aids, and a raft of other diseases.”

[25] The broadcaster was of the view that the item had made it clear that the issue was the marketing of Goji Juice to the Tongan community. The item had also made it clear that the drink was largely made up of fruit juices, and recorded that the Health Ministry was investigating the marketing and promotion of the juice.

[26] TVNZ questioned whether FreeLife – which was based in Australia – had been fully informed about the claims made for Goji Juice in New Zealand. The broadcaster asserted that several Tongan distributors were involved, not just one individual, and together they had made 34 claims about the curative properties of the juice. Further, it said:

…there was more than just a single newspaper advertisement involved; the claims were also made in two regular talk spots on Access Radio in New Zealand, and on other radio stations broadcasting Tongan language programmes. These were still being broadcast as late as last month.

“…the ad campaign launched in the Tongan media…says Goji Juice will cure cancer and Aids. It also promises to help cure kidney and heart disease, arthritis, gout, and even says it can help you have children.”

[27] TVNZ contended that the complainant’s advice on the translation of the advertisements appeared to be wrong. It said the Tongan advertisement did claim that Goji Juice would cure some diseases, for example the advertisement said the juice would “stop” and reduce cancer, HIV and Aids.

“Tongan newspapers are now refusing to run these advertisements which make the disease-curing claims.”

[28] The broadcaster agreed with the complainant that newspapers were prohibited from running advertisements which made therapeutic claims for food products. However, it noted that the advertisements had been published by the newspapers, and were now not being published. TVNZ advised that the editor of Taimi O Tonga had said that once the paper was made aware of the situation, it had refused the distributors advertising space if they mentioned the disease-curing claims.

“What’s enraged victims and authorities is that those responsible for the false claims are in medical jobs. This man here on the right is Tongan doctor Etika Akauola. He says there is scientific evidence Goji Juice cures cancer and it’s safe for diabetics.”

[29] TVNZ maintained that Dr Akauola had asserted that Goji Juice cured cancer on the afternoon immediately preceding the broadcast. The reporter had telephoned Dr Akauola and was told that he had proof that Goji Juice cured cancer and would be happy to give the reporter the relevant research. He also said the juice was fine for diabetics. The broadcaster stated that Dr Akauola had been offered an opportunity to appear on the programme in an on-camera interview, but he had declined. The research promised to the reporter had not been provided, it said.

“Auckland’s Tongan community is the target of the advertising campaign, and some of them with serious health problems have fallen ill after drinking the juice.”

[30] Noting the complainant’s concern that this statement was misleading and would have unnecessarily alarmed viewers, TVNZ maintained that doctors in the Tongan community had confirmed that some patients had fallen ill after drinking Goji Juice. It noted that the item had included the following statement from a doctor at the Langimalie Centre in South Auckland:

We began to wonder what is this doing to our people? Because they were obviously taking it as a medicine obviously thinking it would cure them of their diabetes.

[31] The broadcaster stated that the item needed to be considered in the context of the dangerous claims being made by those marketing Goji Juice. Presumably, it said, the millions of bottles sold in other countries without leading to reports of illness were not marketed with the promise that it would cure all manner of diseases.

“This Auckland clinic has had to help a significant number of ill patients who have been taking the sugar-laden juice.”

[32] TVNZ noted that this statement followed the reporter’s comment that “the most severe impact is being felt by diabetics”. It said that the statement had been taken out of context by the complainant, because clearly the level of sugar was of critical importance to diabetics. TVNZ did not believe it was inaccurate to describe the juice as “sugar-laden”, saying it had:

…heard from Dr Viliame Tutone (Middlemore Hospital in Auckland) that natural sugar or fructose occurs in high percentages in this juice, and can be extremely harmful to those with diabetes particularly when taken in large and regular amounts, and at the expense of regular medication. The Tongan diabetics took the juice on the false promise by those marketing it that it would help cure the disease.

“Namoe Sau’s been working as a health promotions advisor at Manukau’s Procare Network. Namoe Sau no longer has her job at Procare. She resigned this week due to her selling Goji Juice.”

[33] The broadcaster maintained that Ms Sau had resigned her position because she had been asked to, and that her resignation clearly had “everything to do with the curative claims she made while both promoting and selling Goji Juice”. It had been told that an agreement had been reached between Ms Sau’s lawyer and ProCare that the public statement would be that she “voluntarily” resigned.

“In fact Goji Juice is little more than fruit juice and a few vitamins”

[34] The broadcaster noted that this statement was supported by the ingredient information printed on the Goji Juice bottle, which had been displayed on screen during the item. It listed the main ingredients as “goji juice blend, grape juice, pear juice, apple juice, pear puree and vitamin C”.

Suggestion that the main inspiration and information source for the item was a woman who had a “personal vendetta” regarding the enterprise

[35] TVNZ contended that the complainant was mistaken in this suggestion, and it said that the story had been drawn from many sources of which the woman referred to was just one.

Standard 6 (fairness)

[36] The broadcaster considered that, in the public interest, it was essential that One News was seen to make every attempt to get comment from Namoe Sau. After all, it said, Ms Sau had made the disease-curing claims both in Taimi O Tonga and on her radio programme, and it was these claims which had led to the item being compiled.

[37] TVNZ advised that Ms Sau had refused to answer questions from any branch of the media, and would not discuss Goji Juice anywhere else but on her own radio programme. Upon hearing that Ms Sau was not returning calls from anyone facing medical problems, but was answering calls from those seeking to buy the product, One News decided to make contact at a delivery point away from her workplace. When the reporter approached Ms Sau she had clearly identified herself, it said.

[38] By giving Ms Sau the opportunity to explain why she was making false claims for Goji Juice, TVNZ contended that it had dealt justly and fairly with her. Had she elected to comment on her actions or answer the questions, that would have been broadcast, it asserted. Further, having been told by a reporter who had introduced herself as representing One News, TVNZ maintained that Ms Sau “must have known the reason why her contribution to the item was being sought”.

[39] TVNZ did not consider that any misrepresentation or deception was involved, but it also noted that the exception in guideline 6c allowed for situations which were in the public interest and “when material cannot be obtained by other means”. It reiterated that it was in the public interest for One News to be seen trying to acquire comment from one of the Tongan group marketing the Goji Juice.

[40] TVNZ concluded that no breach of the standards had occurred, and therefore it did not uphold the complaint.

Referral to the Authority

[41] Dissatisfied with TVNZ’s response, Mr Cooper referred FreeLife’s complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989.

[42] With respect to Standard 4 (balance), the complainant disagreed with TVNZ’s assertion that the item did not criticise Goji Juice as a product. Any reasonable viewer would “absolutely think otherwise”, Mr Cooper said. Further, Mr Cooper stated that he would have been happy to comment on the way in which the product was being marketed to the Tongan community, but he was not given an opportunity to do so. The complainant maintained that TVNZ had not made reasonable efforts to present significant points of view within the period of current interest.

[43] Turning to Standard 5 (accuracy), Mr Cooper noted that the item had contained repeated images of the Himalayan Goji Juice brand. He disagreed with TVNZ’s argument that the health claims in the advertisements were “outrageous and unjustifiable”, stating that numerous independent government bodies and scientific institutions had “verified the therapeutic benefits of goji”. TVNZ had ignored these facts, Mr Cooper maintained, and had clearly intended to discredit the Himalayan Goji Juice brand.

[44] Mr Cooper reiterated that the Taimi O Tonga newspaper had been reprimanded by the Ministries of Health and Consumer Affairs because it had run advertisements promoting health claims for Goji Juice. This had not been mentioned in the item, he noted, and it had left the impression that the newspaper was “now suddenly rejecting these ads by choice”.

[45] The complainant acknowledged that Dr Etika Akauola did promote the use of Goji Juice in the treatment of cancer and diabetes. However, he noted, this was not prohibited, and the claims were not false. TVNZ had reported its opinion that the claims were false without having viewed the research Dr Akauola said he would provide, and despite knowing that such research was commonly available.

[46] Referring to the statement that people had “fallen ill after drinking the juice”, Mr Cooper contended that Himalayan Goji juice did not “make people sick any more than apple juice or grape juice might make people sick”. He noted that people who stopped taking their medication might become sick regardless of the food products they were consuming. This statement was an attempt to make viewers believe that consuming Himalayan Goji Juice would cause them harm, Mr Cooper said.

[47] The complainant also maintained that diabetics could treat the juice in the same manner that they would treat any other juice drink. Noting TVNZ’s response that Dr Tutone had said diabetics could become sick if they consumed Goji Juice in “large and regular amounts, and at the expense of regular medication”, Mr Cooper stated that this would be possible with any food product.

[48] Mr Cooper reiterated that Namoe Sau had not been given a fair opportunity to explain her position, and that she had been deceived by the reporter. He said that the material could have been “obtained by other means”, as TVNZ could have contacted FreeLife and the company could have helped facilitate responses from key individuals in the Tongan community.

Broadcaster’s Response to the Authority

[49] TVNZ noted that the complainant appeared to have withdrawn a number of aspects of the complaint, including the complaint that the Tongan newspaper did not claim that Goji Juice “cured” cancer and other diseases.

Complainant’s Final Comment

[50] Mr Cooper confirmed that his last submission on behalf of FreeLife had included a number of amendments based on TVNZ’s response.

Further Information from the Broadcaster

[51] With respect to the approach made to Namoe Sau, the broadcaster stated that the reporter had left a message for Ms Sau to contact her on 23 May, and no response had been received. TVNZ provided the following comments from the One News reporter:

This was in the public interest. Namoe Sau illegally made the disease-curing claims both in the Taimi O Tonga and on her radio programme and as a result caused suffering in the Tongan community. She has refused to front for the media except on her own programme where she promoted Goji Juice along with disease-curing claims. Given Namoe Sau’s record of refusing to speak to the media and also her medical standing in the community – she also claims to have an MPH, PGDHP, CD, and CSMBD on her business card – our approach was justified. On top of this, Tongans who faced medical problems after drinking the Goji Juice found it hard to contact Namoe Sau whereas anyone wanting to buy the juice had their calls returned immediately. We decided not to approach Namoe Sau at her workplace, the ProCare Network, out of consideration of a community health programme. The One News footage clearly shows the reporter walking alongside Namoe Sau questioning her. Namoe Sau made the decision not to get into her car because she did not want to face the camera. She was not prevented from getting into the car and the footage clearly shows this.

Further Information from the Complainant

[52] Mr Cooper provided responses from Namoe Sau and the wife of Dr Etika Akauola outlining their versions of events. Ms Sau disputed the reporter’s assertion that a message had been left on her telephone.

Authority's Determination

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

Standard 4 (balance)

[54] Standard 4 requires that balance be provided when controversial issues of public importance are discussed. On this occasion, the One News item reported on the way in which a juice product had been marketed to the Tongan community in New Zealand as having disease-curing properties. The item said that drinking the juice had caused illness in some people with serious diseases who had relied on the marketing claims. In the Authority’s view, this was a controversial issue of public importance to which Standard 4 applies.

[55] The complainant’s main concern is that the item criticised Himalayan Goji Juice as a product, and that the broadcaster did not allow any person to express a favourable opinion about the product. However, the issue of whether Goji Juice is an effective product was not the focus of the item – it was the fact that Goji Juice was being illegally marketed to the Tongan community as a cure for a number of serious illnesses. As a result, the Authority considers that the broadcaster was not required to present comment from consumers or professionals who endorsed Goji Juice.

[56] Mr Cooper also argued that TVNZ should have attempted to obtain comment from FreeLife, the manufacturer of Himalayan Goji Juice. Because the controversial issue under discussion was the marketing of the juice, as opposed to the quality of the product, the Authority considers that TVNZ was not required to seek comment from the manufacturer. Accordingly, the Authority does not uphold the balance complaint.

Standard 5 (accuracy)

[57] The complainant has identified several alleged inaccuracies in the programme, all of which have been outlined in the summary of correspondence. The Authority considers each allegation in turn.

“The Health Ministry is investigating the illegal promotion of a juice claiming to heal cancer, Aids and a raft of other diseases.”

[58] The complainant contended that the introduction to the item implied that the Health Ministry was investigating Goji Juice. The Authority disagrees. It finds that the statement above, and the impression left by the item overall, made it clear that the Ministry of Health was investigating the marketing of Goji Juice, not the product itself. The Authority declines to uphold this part of the complaint.

“The Tongan newspapers are now refusing to run these advertisements which make the disease-curing claims.”

[59] In the complainant’s view, this statement implied that the newspapers were “suddenly rejecting these ads by choice”, when in fact there was a general prohibition on newspapers running such advertisements. The Authority agrees that the word “refusing” could imply that the newspaper had some choice in the matter. However, in determining whether viewers would have been misled, the Authority looks at the overall impression left by the item rather than confining its consideration to individual words or statements.

[60] Overall, the Authority is of the view that the item made it clear that the advertisements were illegal and were under investigation. For example, the item stated that “the Ministry of Health’s Medsafe has warned the ads are illegal and has launched an investigation” and “the Health Ministry is investigating the illegal promotion of a juice…”. In these circumstances, the Authority considers that viewers would not have been misled about whether or not the newspaper had any choice about running the advertisements. It finds that Standard 5 was not breached.

“What’s enraged victims and authorities is that those responsible for the false claims are in medical jobs. This man here on the right is Tongan doctor Etika Akauola. He says there is scientific evidence Goji Juice cures cancer and it’s safe for diabetics.”

[61] The Authority notes that the complainant has presented conflicting arguments on this point. First, Mr Cooper said that Dr Akauola had never claimed that Goji “cured” cancer. Then, he said that Dr Akauola had scientific research that supported the use of Goji Juice to treat cancer and diabetes, and that these were not false claims.

[62] In response, TVNZ has advised the Authority that Dr Akauola spoke to the One News reporter on the afternoon before the broadcast, and he informed the reporter that he had proof that Goji Juice cured cancer and was suitable for diabetics. The Authority accepts TVNZ’s evidence on this point, particularly in light of the inconsistency in the complainant’s arguments. It declines to uphold this aspect of the complaint.

“Auckland’s Tongan community is the target of the ad campaign, and some of them with serious health problems have fallen ill after drinking the juice.”

[63] The complainant argued this statement was misleading, and would have caused viewers to believe that Goji Juice would harm them. The Authority disagrees. It finds that the statement, and the item overall, made it clear that it was only people with serious health problems who had fallen ill after drinking the juice in accordance with the claims made in the advertising campaign. Therefore the Authority finds that Standard 5 was not breached.

“This Auckland clinic has had to help a significant number of ill patients who have been taking the sugar-laden juice.”

[64] Mr Cooper argued that Goji Juice was not “sugar-laden”, because it did not contain any added sugars. He stated that the naturally-occurring sugars were in similar or lesser proportions to other pure fruit juices. However, the Authority observes that all fruit juices are high in naturally-occurring sugar and could be described as “sugar-laden”. Furthermore, immediately prior to this statement, the reporter said “the most severe impact is being felt by diabetics”. The Authority finds that it was not inaccurate to describe Goji Juice as “sugar-laden”, especially in the context of discussing its effect on diabetics who must treat such products with caution. It does not uphold this part of the accuracy complaint.

“In fact Goji Juice is little more than fruit juice and a few vitamins.”

[65] The complainant argued that there were no added vitamins in Goji Juice, and therefore this statement was misleading. However, the Authority finds that viewers would not have been misled about the contents of Himalayan Goji Juice because the item clearly displayed an image of the product label showing its exact contents. As TVNZ pointed out, this showed that Goji Juice contained Vitamin C. In these circumstances, the Authority finds that the above statement was not inaccurate.

[66] Having declined to uphold any aspects of the accuracy complaint, the Authority finds that Standard 5 was not breached.

Standard 6 (fairness)

[67] Referring to guidelines 6b and 6c, the complainant asserted that the item was unfair to Namoe Sau because she was ambushed by TVNZ in a door-stepping interview which had been arranged in a deceptive manner. The Authority agrees that the broadcaster treated Ms Sau unfairly for the reasons outlined below.

[68] Looking first at guideline 6b, the Authority has taken a strict approach towards door-stepping in the past, particularly when the interviewee has had little or no experience in appearing on television. In Decision No. 1999-073, the Authority said:

If the element of surprise is combined with unequal television experience and accusations of irresponsible or illegal behaviour, the situation becomes one where the unevenness between the parties is very marked. In other words, it is a situation which is potentially most unfair and intimidating to the interviewee.

[69] While "door-stepping" will not always be in breach of the Code, the Authority emphasises that it is a method which should not normally be used unless every alternative legitimate way either to obtain the information sought or to ensure that a person being investigated is given the opportunity to respond has been exhausted.

[70] The question for the Authority is whether TVNZexhausted “every alternative legitimate way” to obtain Ms Sau’s comment before conducting the door-stepping interview. The reporter has stated that after making one telephone call to Ms Sau 10 days before the broadcast, the door-stepping interview was arranged. Ms Sau disputes that this phone call was made. However, even if the broadcaster did telephone Ms Sau on one occasion, the Authority concludes that this would not meet the requirement to exhaust “every alternative legitimate way” to obtain her comment.

[71] It appears from the correspondence that TVNZ relied largely on information from third parties who stated that Ms Sau was not cooperating with the media, rather than making its own attempts to obtain Ms Sau’s comment. The Authority notes that this was not a situation where the broadcaster had limited time to prepare the story; TVNZ had 10 days in which to attempt to contact Ms Sau by legitimate means. In these circumstances, the Authority finds that one telephone call did not satisfy the requirement to use “every alternative legitimate way” to obtain Ms Sau’s comment.

[72] TVNZ has justified using the door-stepping approach by stating that the matter discussed in the item was in the public interest. However, the fact that a story is in the public interest is not a defence to the requirement in guideline 6b to inform participants about their proposed contribution. If that were the case, broadcasters could defend the practise of door-stepping any time it was used to obtain comment from someone about a matter of public interest.

[73] The Authority wishes to clarify that, for a broadcaster to justify using the door-stepping approach when it has not exhausted every legitimate means by which to obtain comment, there must actually be a public interest in not informing a participant of the reason for his or her proposed contribution.

[74] Accordingly, taking into account Ms Sau’s relative inexperience with the television media and the amount of time available to the broadcaster, the Authority finds that the broadcaster treated Ms Sau unfairly by using the door-stepping method when it had not exhausted every other legitimate way to obtain her comment.

[75] In its previous decisions, the Authority has applied a similarly restrictive approach to its interpretation of guideline 6c, which states that broadcasters must not use misrepresentation or deception unless required in the public interest, and when the material cannot be obtained by other means. At paragraph [306] of the Corngate decision (Decision No. 2003-055–061), the Authority said:

The Authority has ruled in its interpretation of guideline 6c that such procedures may be used only as a last resort, after the alternatives which involve openness on the broadcaster’s part have been considered and, with sound justification, have been found not applicable.

[76] In this case, after the reporter attempted to contact Ms Sau once by telephone (which Ms Sau disputes), Ms Sau was then telephoned and asked to deliver Goji Juice to a certain address where the One News team was waiting. Using deception can only be justified when it is required in the public interest, and when the material cannot be obtained by other means. In this case, TVNZ has not satisfied the Authority that the material could not be obtained by other means, because it states that it attempted to contact Ms Sau only once before it used deception to arrange the door-stepping interview. In other words, the broadcaster did not use deception “as a last resort”.

[77] For the above reasons, the Authority finds that Ms Sau was treated unfairly by the broadcaster, and it concludes that Standard 6 was breached.

Bill of Rights

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

[79] For the above reasons the Authority upholds the complaint that the broadcast of One News by Television New Zealand Ltd on TV One on 1 June 2006 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice.

[80] Having upheld a complaint, the Authority may make orders under ss.13 and 16 of the Broadcasting Act 1989. Having considered all the circumstances of this complaint, the Authority concludes an order is not appropriate on this occasion.

[81] The Authority notes that the complainant has submitted a lengthy complaint alleging breaches of several standards. However, the Authority has only upheld the complaint on one ground – that Namoe Sau was treated unfairly. The Authority considers that this part of the complaint was incidental to FreeLife’s main concern that the item was critical of its product. As a result, the Authority regards the breach as insufficiently central to the main themes raised by FreeLife in its complaint to warrant the imposition of an order.

Signed for and on behalf of the Authority

 

Joanne Morris
Chair
19 September 2006

Appendix

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

  1. FreeLife Pacific Area’s formal complaint – 5 June 2006
  2. TVNZ’s decision on the formal complaint – 26 June 2006
  3. FreeLife’s referral to the Authority – 14 July 2006
  4. TVNZ’s response to the Authority – 26 July 2006
  5. FreeLife’s final comment – 7 August 2006
  6. Further information from TVNZ – 15 August 2006