BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
Close Up – item about suburban brothels – showed hidden camera footage taken inside travel agency – reporter was shown asking teller about sending money back to China and “hiding the money” without any trace – teller agreed that she could do this – allegedly unbalanced, inaccurate, unfair and a breach of privacy

Findings
Standard 3 (privacy) – companies have no right to privacy – teller had no interest in solitude or seclusion at place of employment – not upheld

Standard 4 (balance) – subsumed under Standard 6

Standard 5 (accuracy) – item not misleading or inaccurate – hidden camera footage portrayed actual events – not upheld

Standard 6 (fairness) – teller not treated unfairly – An Ying “referred to” but not identifiable, therefore broadcaster not required to give an opportunity to comment – use of hidden camera not unfair – not upheld

This headnote does not form part of the decision.

Broadcast

[1] An item on Close Up, broadcast on 19 June 2006 at 7pm on TV One, looked at whether there had been an increase in “backyard brothels” in suburban New Zealand since the passing of the Prostitution Reform Act (PRA). It examined associated concerns about people trafficking, the exploitation of women, and money laundering.

[2] The item showed hidden camera footage inside a business premises, which was accompanied by the reporter stating:

We’ve been told through the Chinese community, this travel agency washes money for people. All you have to do is bring in cash and, without any paper trail, funds can be sent back to China, invested in to a bank account there, and then sent back to New Zealand.

[3] The footage showed the undercover reporter having the following conversation with the teller:

Reporter:     What I want to be able to do is send the money back to China. Can there be any
                   trace of the transaction?

Teller:          Ah, what do you mean by that?

Reporter:     Well, be able to send the money over – overseas – and to hide the money, to hide
                   the money. Send the money over…

Teller:          [Laughs] And send it back.

Reporter:     Yeah, without any…

Teller:         …that should be okay.

Reporter:     You can do that?

Teller:          Uh huh. We can give you an account number and you just deposit that money into
                   our account and then we can pay you New Zealand dollars here.

Reporter:     Okay you can pay it back so there won’t be any record of the transaction.

Teller:          No. It will be finished in a day.

Reporter:     If IRD want to find out they can’t trace it at all?

Teller:          No, nothing at all.

Reporter:     They can’t trace it. Okay.

Complaint

[4] An Ying Group Limited made a formal complaint about the item to Television New Zealand Ltd, the broadcaster. It stated that the exchange between the teller and the undercover reporter had occurred at one of its foreign currency trading rooms. It complained that the item was unbalanced, inaccurate, unfair and had breached the privacy of the company and the teller shown in the item.

[5] The complainant said that the teller had some difficulty speaking English as it was not her first language, and she had not understood the meaning of the word “trace”. Further, when she had been asked “there won’t be any record?”, her response that “no, it will be finished in a day” clearly indicated that she had misunderstood the question. As a result of the broadcast, the complainant said, the teller had been left feeling humiliated and upset.

[6] With respect to the claims of money laundering in the item, An Ying stated that its systems were fully computerized and there was no possibility of a transaction being hidden in any way. The claims were “totally without foundation and repugnant”, it wrote, adding:

We have regular contact with the Police and SFO due to the nature of our business. We are obliged to sight and record identification of major and/or cash transactions, and to report suspicious transactions to the authorities.

[7] The complainant contended that the use of hidden camera footage in the item implied guilt and had portrayed the company in an unfavourable light.

Standards

[8] TVNZ assessed the complaint under the standards nominated by the complainant. They provide:

Standard 3 Privacy

In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual. 

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

[9] TVNZ maintained that the average viewer would have had little cause to link the money laundering sequence to the complainant. It said:

There was a fleeting shot of a sign which carried your company’s name, but the pan of the camera had already begun and the blurred name disappeared very rapidly indeed.

…The average viewer would not be looking for [the company’s name] and there was no indication in the audio commentary or subsequent imagery that the teller being shown was an employee of your company.

[10] The broadcast did not accept An Ying’s contention that the teller had misunderstood what the reporter was asking about. The reporter, it noted, had been accompanied by a Chinese-speaking translator who was there to help in case any misunderstanding arose. Even if she had misunderstood the word “trace”, TVNZ contended, her subsequent comments made it clear that she knew what the reporter was asking her. It pointed out that other comments made by the teller, which had not been included in the item, reinforced the view that she fully understood what process she was being asked to explain.

[11] TVNZ disputed that the item implied that the An Ying Group as a whole was involved in money laundering. It wrote:

Even if viewers recognised the sequence as being shot in a property housing an An Ying company (and, as noted above, the committee was doubtful that many would) no inference could be drawn beyond the fact that at this particular premises the teller was prepared to handle financial transactions in a manner which would escape the notice of the Inland Revenue Department.

[12] The broadcaster found that Standard 3 (privacy) was not breached. It argued that the item had discussed an issue of considerable public interest – the anti-social elements associated with “backyard brothels” in residential areas. TVNZ did not believe that the imagery was specific enough for viewers to connect the money laundering sequence with An Ying. Further, it considered that the “compelling evidence of the availability of money laundering” could not amount to the “public disclosure of private facts”.

[13] Looking at Standard 4 (balance), TVNZ contended that the item was not an investigation into whether An Ying laundered money. Rather, it said, the sequence involving the complainant served only to demonstrate that, in the context of the item overall, there was at least one place where people could arrange financial transactions which could be hidden from the IRD. The broadcaster maintained that the hidden camera footage showed “beyond doubt that money laundering was available”, and therefore it found that there was no lack of balance.

[14] With respect to Standard 5 (accuracy), TVNZ stated that it could find no examples of inaccuracies or untruths in the item. It concluded that the standard was not breached.

[15] The broadcaster also found that there had been no breach of Standard 6 (fairness). It felt that the item was a true reflection of what was occurring at the An Ying premises, and the hidden camera filming was “required in the public interest when the material cannot be gathered by other means” (guideline 6c). Further, the item had effectively concealed the name of the company at which the filming took place, it said.

Referral to the Authority

[16] Dissatisfied with TVNZ’s response, An Ying referred its complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. It maintained that the privacy of the company and the teller had been breached.

[17] Looking at balance, An Ying maintained that TVNZ should have approached the company for information about its strict record keeping. It stated that, if it had been given the opportunity to do so, it could have convinced TVNZ “beyond any doubt that money laundering is not possible within our company”.

[18] The complainant repeated its contention that the teller had not understood the questions put to her, and therefore it considered that the item was inaccurate.

[19] As for Standard 6 (fairness), the complainant reiterated that it had not been given an opportunity for an interview. It contended that the allegations made about An Ying had not been properly investigated, and the company had been “branded in a sleazy and underhand way”.

Broadcaster’s Response to the Authority

[20] Reiterating its belief that An Ying had not been identified in the item, TVNZ expressed surprise at the complainant’s suggestion that a representative from the company should have been interviewed. This would have identified An Ying without question, it wrote. Further, because the item was not an investigation into An Ying’s activities, TVNZ contended that no “balancing” interview was necessary.

Complainant’s Final Comment

[21] The complainant maintained that An Ying had been identified in the item through the shot of the company’s logo on the wall. While it would not have consented to being interviewed on camera, it said, it was not given an opportunity to show Close Up the systems and procedures in a foreign currency transaction. It wrote:

They would have been convinced that there are complete records of every transaction, and that money laundering in New Zealand is not facilitated by utilising the services of an organisation like An Ying, any more than it is by transacting through a major bank. Close Up is an in-depth news programme with a supposed ability to undertake more research than a daily news service, and there is less excuse for getting a story so wrong. Our view is that, had we been given such an opportunity, there would have been no story at all.

Authority's Determination

[22] 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 3 (privacy)

[23] Standard 3 requires broadcasters to maintain standards consistent with the privacy of “the individual”. In Decision No, 2005-005–006, the Authority found that a company does not have a right to privacy. Accordingly, it does not uphold the complaint that the broadcast breached An Ying’s privacy.

[24] With respect to the teller’s privacy, the Authority considers that privacy principle (iii)¹ is potentially relevant due to the use of a hidden camera. However, it finds that the teller did not have an interest in solitude and seclusion, because she was working in a business premises where any member of the public could see her. Therefore the Authority declines to uphold the Standard 3 complaint.

Standard 4 (balance)

[25] An Ying contended that the item was unbalanced because, it said, the company was not laundering money, and it was not given an opportunity to respond. In this respect, the Authority considers that the complainant’s main concern is essentially that it was treated unfairly. Accordingly, the Authority subsumes the balance complaint into its consideration of Standard 6 (fairness).

Standard 5 (accuracy)

[26] An Ying complained that the programme was misleading because it portrayed the company as engaging in money laundering when, in fact, the teller could not understand the reporter’s questions. In the Authority’s view, however, the question of whether the teller understood the reporter is best dealt with as a matter of fairness, not accuracy. Accordingly, the Authority subsumes the accuracy complaint into its consideration of Standard 6 (fairness).

Standard 6 (fairness)

Fairness to the teller

[27] In order to determine whether the teller was treated unfairly by the broadcaster, the Authority first needs to determine whether she was able to understand the reporter’s questions. On the basis of the hidden camera footage the Authority concludes that there is very little, if any, doubt that the teller understood what the reporter was saying. In particular, the Authority notes her statement that:

We can give you an account number and you just deposit that money into our account and then we can pay you New Zealand dollars here.

[28] In the Authority’s view, the teller’s responses indicated that she had a firm grasp of the English language and was able to comprehend the reporter’s request. As a result, the Authority considers that the programme was a fair representation of the exchange between the reporter and the teller. It declines to uphold the complaint that the teller was treated unfairly.

Fairness to An Ying

[29] Standard 6 only applies to persons or organisations who are “taking part or referred to” in a programme. The Authority notes that the reporter said “we’ve been told [that] this travel agency washes money for people”, and then footage from the company premises was shown. Because this was a reference to An Ying, the Authority finds that the complainant was “referred to” for the purposes of the fairness standard.

[30] TVNZ assessed the use of the hidden camera under guideline 6c, which states:

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.

[31] Guideline 6c recognises that the use of hidden camera footage is inherently unfair, however the Authority notes that there will not be a breach of the guideline if the broadcaster is required to gather the information in the public interest, and when the material cannot be obtained by other means.

[32] In the present case, the Authority considers that TVNZ could not have investigated whether An Ying was engaging in questionable financial transactions without using a hidden camera; in other words, the material could not have been obtained by other means. It also finds that TVNZ was investigating an issue of public interest – whether companies in New Zealand were allowing customers to perform illegal financial transactions which could be hidden from the Inland Revenue Department. In these circumstances, the Authority concludes that TVNZ did not treat An Ying unfairly by using deception to obtain the footage.

[33] The last issue of fairness is whether TVNZ should have offered An Ying an opportunity to respond to the hidden camera footage. The Authority acknowledges the general proposition that where a person or organisation has been criticised or portrayed in a negative light, they should be offered an opportunity to defend their position.

[34] On this occasion, however, the Authority finds that the broadcaster was not required to give An Ying an opportunity to comment, because An Ying was not identifiable in the item. It agrees with TVNZ that the average viewer would not have been able to read the brief and indistinct shot of An Ying’s company sign that was shown in the item. While it acknowledges that limited identification of the company could have occurred to a very small group of people through the teller, the Authority considers that the average viewer would not have known the identity of the company shown in the footage. In these circumstances, the Authority is of the view that the broadcaster was not required to approach An Ying for a response.

[35] The Authority declines to uphold the Standard 6 complaint.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
19 December 2006

Appendix

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

1    An Ying Group Ltd’s formal complaint – 26 June 2006

2    TVNZ’s decision on the formal complaint – 31 July 2006

3    An Ying Group Ltd’s referral to the Authority – 26 August 2006

4    TVNZ’s response to the Authority – 26 September 2006

5    An Ying Group Ltd’s final comment – 19 October 2006

¹The Authority’s privacy principles have recently been amended, with the amended principles applying to broadcasts from 1 August 2006 onwards. As this item was broadcast before 1 August, the old principles apply.