Complaint under section 8(1)(a) of the Broadcasting Act 1989
Close Up – item introduced as “The Funeral Director from the Dark Side” – about an undertaker whose practices were said to have offended some families – allegedly unbalanced, inaccurate and unfair – allegedly breached privacy of named undertaker
Standard 3 (privacy) – privacy principle (iii) – no intrusion in the nature of prying – not upheld
Standard 4 (balance) – controversial issue discussed not featured in complaint – complaint subsumed under fairness – not upheld
Standard 5 (accuracy) – no inaccuracies – partiality dealt with under fairness – not upheld
Standard 6 (fairness) – opportunities given to respond – not upheld
This headnote does not form part of the decision.
 “The Funeral Director from the Dark Side” was the introduction to an item broadcast on TV One’s Close Up at 7.00pm on 7 June 2005. The item reported on the experiences of two women who were angered and disappointed by the way Wainuiomata undertaker, Darryl Angus, trading as Omega Funeral Services, had handled the funerals of family members.
 The item also included critical comment about Mr Angus from the Funeral Directors’ Association of New Zealand. Mr Angus, it noted, was not a member of that Association.
 Peter Freedman complained to Television New Zealand Ltd, the broadcaster, that the item breached the standards relating to privacy, balance, accuracy and fairness.
 Explaining that he was a friend of Mr Angus, Mr Freedman said TVNZ was advised early on 7 June that Mr Angus, having taken legal advice, did not wish to participate in the programme. Nevertheless, TVNZ’s film crew, travelling in a vehicle on which the TVNZ logo had been concealed, spent several hours that day trying to track him down. That included going to his home and filming it. It also involved attempting to film Mrs Angus through the window at the Wainuiomata Fire Station where she worked as a volunteer firefighter. Those efforts, Mr Freedman complained, breached the privacy principle which dealt with intentional interference in the nature of prying.
 In support of his contention that the item was unbalanced, Mr Freedman maintained that Close Up, despite Mr Angus’s refusal to take part, was required to broadcast a balanced item. Complimentary letters from former clients of Mr Angus’s Omega Funeral Services had been published in the local newspaper at the time of the recent controversy when he moved his business from an industrial to a retail area, Mr Freedman wrote.
 Other comment could have been obtained from the Police, from the website www.wainuiomata.com, or from Mr Angus himself if he had been approached informally.
 Mr Freedman said that the Anguses and Omega Funeral Services had also been subject to harassment from a small number of people for some weeks before the broadcast, but that matter was not disclosed.
 Mr Freedman argued that the item lacked impartiality as, with minimal evidence, it had referred to “claims of theft, inappropriate attention, appalling workmanship and bad debts”. The critical comment from the Funeral Directors’ Association, he added, was based on unsubstantiated rumours.
 Turning to the requirement for accuracy, Mr Freedman contended that the item failed to distinguish between fact and highly critical comment. Further, the item should have reported that efforts had been made to put Mr Angus out of business, and that had included an attack on the company’s hearse.
 Moreover, Mr Freedman wrote, the item was unfair in that it accepted without question the criticisms of Mr Angus and reported them as fact. In addition, some of the footage used in the item had been gathered through deception, while the item had also used some file footage of Mr Angus taken in 2003.
 TVNZ assessed the complaint under the standards nominated by Mr Freedman. The relevant standards and guidelines in the Free-to-Air Television Code of Broadcasting Practice state:
Standard 3 Privacy
In the preparation and presentation of programmes, broadcasters are responsible for maintaining standards consistent with the privacy of the individual.
Broadcasters must comply with the privacy principles developed by the Broadcasting Standards Authority.
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.
Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.
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.
Factual reports on the one hand, and opinion, analysis and comment on the other, should be clearly distinguishable.
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.
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.
 In its response to the privacy complaint, TVNZ noted that no private facts were revealed. Further, it asserted that there had been no “intentional intrusion in the nature of prying” as the reporter, like any member of the public, had gone to places where he thought he might find Mr Angus. TVNZ also referred to the privacy principle which states that discussing a matter in the public interest is a defence to a privacy complaint. It maintained that the item was in the public interest as Mr Angus’s business went into liquidation within a month of the broadcast owing creditors $130,000.
 As for balance, TVNZ pointed out that a broadcaster was not obliged to broadcast balancing material. Rather, it was required to make reasonable efforts, or give reasonable opportunities to present balancing material. Such efforts and opportunities had been clearly given on this occasion, TVNZ wrote, pointing to the reporter’s attempts to obtain a response from Mr Angus (which had included faxing a list of questions to Mr Angus several days before travelling to Wainuiomata).
 TVNZ commented that an investigation was not abandoned if one party declined to participate. To do so, it added, would not contribute to the free and unfettered flow of information envisaged by s.14 of the New Zealand Bill of Rights Act 1990.
 As for the complainant’s suggestion that Mr Angus should have been approached informally, TVNZ said that such an offer had been made several days before the broadcast of the item. In view of the item’s focus on some specific actions of the undertaker, TVNZ did not accept that reference to the harassment Mr Angus had experienced was required under the balance standard.
 TVNZ did not accept that the item was inaccurate. It had reported accurately the claims made against Mr Angus, and the genuinely held opinions of the disgruntled families and, as noted above, it stated that “every effort” had been made to get a response from Mr Angus.
 Turning to the complaint that the item was unfair, TVNZ acknowledged that the logos on the vehicle had been covered. That had been done, it said, to avoid those who worked with Mrs Angus from impeding TVNZ’s efforts. Such a practice, it added, was not unusual and the need for it was apparent as there had been heated exchanges on this occasion between the TVNZ crew and the fire station staff.
 TVNZ declined to uphold the complaint.
 Dissatisfied with TVNZ’s response, Mr Freedman referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989. The referral was accompanied by some other correspondence he had had with TVNZ in which Mr Freedman questioned the professionalism of TVNZ’s approach.
 In regard to privacy, Mr Freedman said he had not contended that the programme had disclosed private facts. The item, he pointed out, had not dealt with the publicity surrounding the decision of Omega Funeral Services to move its business, but with the concern expressed by two families about Omega’s services.
 Mr Freedman stressed that TVNZ’s reporter was informed on several occasions that Mr and Mrs Angus did not wish to participate in the item. Despite this, they were harassed for several hours and the item included footage taken on their property of the reporter knocking on the side door of their house. TVNZ could not claim that it was exercising the rights of any citizen as it was well aware that it was not going to get an interview. They had visited the property against the Anguses’ wishes, he wrote.
 As for balance, Mr Freedman did not suggest that the item should have been abandoned. Rather, he questioned whether “reasonable efforts” had been made in view of the other information which was available.
 Mr Freedman considered the item lacked impartiality by referring to Mr Angus as “the Undertaker from Hell”. He noted that Mrs Angus’ workmates were angry as they knew she did not want to be filmed but had been harassed in her work place.
 The correspondence attached to the referral included a letter from Mr Angus, apparently to Mr Freedman, to which Mr Angus attached an email from Close Up dated 3 June seeking an interview and listing the issues to be discussed. In his letter to Mr Freedman, Mr Angus said he advised Close Up on 3 June that he did not wish to participate in the programme.
 It also included an email to Mr Freedman from Close Up’s reporter, dated 8 July, in which the reporter expressed surprise that Mr Freedman was “still defending” Mr Angus in view of his actions. It was followed by a letter to Mr Freedman from TVNZ’s Head of News and Current Affairs, who said it was not appropriate for a reporter “to independently engage in argument over the validity of a story” and he had been counselled accordingly.
 TVNZ maintained that the issues surrounding Omega Funeral Services remained issues of “broad public interest”. The liquidator, it added, had reported that among the unsecured creditors were people who had prepaid more than $36,000 for funerals.
 As for the comments made by the reporter, TVNZ said that the matter had been dealt with internally and was now closed. “That argument”, it contended, “did not impinge upon or relate to programme standards”.
 Mr Freedman said that it was “bizarre” for TVNZ to refer to Omega’s liquidation as that had occurred several weeks after the broadcast. He accepted that the email sent to him from the reporter had been dealt with internally but maintained his belief that the reporter’s actions demonstrated the “unprofessional and biased” manner in which the item had been prepared and broadcast.
 The members of the Authority have viewed a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
 Mr Freedman contended that the item breached the Anguses’ privacy as TVNZ’s attempts to track them down amounted to intrusion. The Authority accepts that TVNZ, before it visited Wainuiomata, knew that Mr Angus, on legal advice, did not want to be interviewed. The Authority acknowledges that journalistic practice is always to attempt to obtain comment from the key subject at the time of doing a story, even if the subject has previously declined to participate. If this practice is not observed, a subject may have changed their position and complain that they were not consulted, The Authority does not intend to consider whether a reporter has an implied licence to enter private property if the reporter is aware that the visit would be unwelcome. That is an issue defined by the law of trespass, and is not an issue of broadcasting standards. In view of the nature of the complaint, the Authority’s concern is whether TVNZ’s actions on this occasion amounted – in the words of privacy principle (iii) – to intrusion in the nature of prying.
 The Authority accepts that TVNZ attempted to track down the Anguses. TVNZ visited Mr Angus’s business, Mrs Angus’s place of work, and their home. TVNZ suspected that the approaches would be unwelcome and had covered the insignia on the company car. However, beyond covering the insignia, there is no other evidence that TVNZ resorted to covert tactics. TVNZ wanted to confront Mr and/or Mrs Angus and did so in a way which it believed was direct. Taking into account the overt nature of TVNZ’s actions, the Authority concurs with TVNZ that the methods used were justified in the pursuit of a reluctant interviewee, and that they did not amount to prying that would breach Standard 3. It declines to uphold the privacy complaint.
 When an item deals with a controversial issue of public importance, reasonable efforts must be made or reasonable efforts given to present significant points of view. The Authority considers that this item did address such an issue – the potential problems with an unregulated funeral director industry. This wider issue was highlighted by the experiences of Mr Angus’s dissatisfied customers and a spokesperson for the Funeral Directors Association.
 The Authority notes, however, that the complainant’s concerns were not that the programme lacked balance in respect of the controversial issue raised by the programme. The complaint instead alleged, in essence, that the programme had portrayed the Anguses unfairly, and made insufficient efforts to put their side of the story. The Authority considers that these concerns are more appropriately addressed as issues of fairness, and therefore subsumes the balance complaint under the Standard 6 (fairness) determination.
 In his referral to the Authority, the complainant did not specify any factual inaccuracies in the programme. His complaint in relation to Standard 5 instead focussed on the requirement for impartiality, and alleged that the programme, in portraying Mr Angus as “the funeral director from hell”, had adopted a partial point of view.
 The Authority again considers that the essence of the complainant’s concerns is that Mr Angus was treated unfairly, in light of the “highly critical” comments about his business practices, and the “unsubstantiated claims” made by former clients. This aspect of the complaint is therefore dealt with under Standard 6 (fairness).
 In his original complaint, Mr Freedman also alleged that the programme’s sources were not reliable. He referred to a campaign that he alleged had been conducted against Mr Angus in Wainuiomata, and stated that reference to this campaign would have raised “serious questions” as to the interviewees’ reliability.
 Mr Freedman did not pursue this matter on referral of his complaint. For the avoidance of doubt, however, the Authority records that the complainant provided no evidence to suggest that the allegations made against Mr Angus in the programme were motivated by his disputes with other sections of the Wainuiomata community. In the absence of any information casting doubt on the credibility of the interviewees’ story, the Authority finds that TVNZ was entitled to use those sources.
 As noted, the item was critical of Mr Angus. The introduction spoke of “claims of theft, inappropriate attention, appalling workmanship and bad debts”. Mr Freedman argued that the item was unfair, or partial, in that:
 While the story told in the item dealt mainly with Mr Angus’s competence as a funeral director, other material provided to the Authority suggests that a number of people in Wainuiomata were concerned about other aspects of his business – in particular its relocation to the main retail area. Mr Freedman explained that incidents involving Omega Funeral Services have been reported to the Wainuiomata police. One incident involved an attack on the company’s hearse.
 The Authority accepts that Mr Angus had been involved in other disputes with sections of the Wainuiomata community, and that these disputes were not canvassed in the item. However, it considers that the fairness standard did not require the item to detail this background. The complainant provided no evidence to establish that the concerns outlined in the programme were not genuine, or that they were part of a “concerted attack” on Mr Angus’s character, motivated by the disputes other Wainuiomata residents had with him. Accordingly, the Authority considers that the omission of the detail surrounding these other disputes did not render the item unfair.
 In relation to the second limb of the fairness complaint, the Authority observes that TVNZ was required to make Mr Angus aware of the interviewees’ criticisms, and to give him the opportunity to respond. It tried to do so. Indeed, it went to such lengths to obtain Mr Angus’ response that the complainant alleged Mr Angus’s privacy was breached.
 The Authority understands that a person whose behaviour has resulted in critical media interest may wish to avoid dealing with the media. That is their right. In doing so, however, that person risks that a programme will be aired without their point of view. In circumstances where it is clear that the broadcaster has gone to considerable lengths to obtain an individual’s response, the Authority is unlikely to uphold a complaint on the grounds of fairness or impartiality.
 This, of course, does not derogate from a broadcaster’s responsibility to broadcast available information which would have advanced the criticised person’s point of view. The complainant referred to several sources of information that he maintained TVNZ should have included in the programme – information from local community newspaper the Wainuiomata News, local police, and a website, www.wainuiomata.com.
 The complainant does not advise, however, that any of these sources could have provided information that defended Mr Angus against the allegations made about him in the programme. The examples he has provided relate only to information about the other disagreements in the community involving Mr Angus. As noted above, the Authority considers that in the context of a programme that discussed specific concerns about Mr Angus’s practice as an undertaker, it was not necessary to include information about these other disputes.
 For the above reasons, the Authority considers that TVNZ gave Mr Angus a reasonable opportunity to respond to the allegations. The Authority also notes that the complainant has not pointed to any information available to TVNZ that, in the absence of comment from Mr Angus, could have provided his perspective on the allegations made in the programme. Accordingly, the Authority declines to uphold Mr Freedman’s fairness complaint.
For the above reasons the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
1 November 2005
The following correspondence was received and considered by the Authority when it determined this complaint: