BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1)(a) of the Broadcasting Act 1989
60 Minutes – item investigated claims that truck drivers were working hours in excess of the legal maximum, and that some were using drugs to stay awake – allegedly unbalanced, inaccurate and unfair

Findings
Standard 4 (balance) – reasonable opportunities given to present significant points of view – not upheld

Standard 5 (accuracy) – no inaccuracies – not upheld

Standard 6 (fairness) – not unfair to Mr Friedlander of the Road Transport Forum NZ – not upheld

This headnote does not form part of the decision.

Broadcast

[1] An item called “High Way” on 60 Minutes broadcast on TV3 at 7.30pm on 20 June 2005 investigated claims that truck drivers were working hours in excess of the legal maximum, and that some were using drugs to stay awake.

[2] The segment reported on the death of Darryl Schutt, a driver whose truck had plunged into a river after its brakes had failed, and contained an interview with his father. Mr Schutt expressed concern that Darryl had been driving longer than his “log book” hours. During the police investigation into the accident, Darryl’s employer Regal was alleged to have logged 38,000 driving hours in excess of the legal maximum in one year. The programme stated that Regal “was charged but after much wrangling the judge threw it out because of delays by the prosecution and lack of evidence”.

[3] The item also described recent truck-driver research which suggested that driving excessive hours and drug use were widespread problems. It contained interviews with Dr Samuel Charlton, an engineering psychologist who had conducted the research, and Lyndsay Chappell, a union representative who commented that long hours and drug use were prevalent in the trucking industry. Tony Friedlander from the Road Transport Forum New Zealand Inc (RTFNZ) was also interviewed, and he disagreed that the problems were as widespread as suggested.

Complaint

[4] Through its solicitors, RTFNZ complained to CanWest TVWorks Ltd, the broadcaster, that the item breached Standards 4, 5 and 6 of the Television Code.

Standard 4 (balance)

[5] The RTFNZ contended that the broadcaster did not make reasonable efforts to present significant points of view contrary to the stance taken by the programme – that excessive hours, fatigue and drug use were a significant risk to the public.

[6] Referring to guideline 4b, the complainant argued that CanWest had not presented all significant sides of the issue in as fair a way as possible. In support of its argument, the RTFNZ noted the following points:

• approximately 7½ minutes of footage was given to speakers critical of the practices alleged in the industry, and the reporter’s script was also predominantly critical. By contrast, approximately 1½ minutes of coverage had been given to the speaker rebutting the programme’s thesis
• the programme interviewed four people who supported its argument, and only one who did not
• only two balancing comments were made by the reporter in the programme (“most of the drivers are competent, experienced and safety conscious” and “most companies follow the rules”)
• the portrayal of Mr Friedlander was not impartial or fair to him or the argument he was making. The camera angle at which he was filmed made it look like he did not look at the interviewer when answering questions, making Mr Friedlander look less credible
• the programme covered allegations about driver hours, fatigue and drug use, but only one comment from Mr Friedlander about driving hours was shown.

[7] In addition, the complainant submitted that guideline 4a had been breached by the reporter’s “leading questions”, such as:

• “After that many hours you must have been hallucinating, I mean, has it ever happened to you?”
• “They’re hallucinating?”

Standard 5 (accuracy)

[8] The RTFNZ complained that the programme was not truthful and accurate on points of fact, or impartial and objective. Guideline 5b had been breached because the item broadcast material which was misleading and could unnecessarily alarm viewers, it said.

[9] The item had tried to graft the issue of excess hours onto Darryl Schutt’s accident as if his accident had demonstrated a problem of excess hours, when it did not. The RTFNZ pointed out the following statements by the reporter:

“The allegations against the company Regal were never proven but Dick Schutt says he had long worried about his son’s workload”

“Regal…there was no suggestion excess hours contributed to the crash…That may be so, but…”

[10] The effect of those statements, in the complainant’s view, was to cause an impression that the crash had been caused by excessive driver hours.

[11] Similarly, the item had contrasted Dr Charlton’s finding (that 30% of drivers admitted they were over their hours of service) with Mr Friedlander’s comments about the levels of offending. RTFNZ argued that this was misleading, because the programme matched Mr Friedlander’s answer to a different question to Dr Charlton’s statement. Mr Friedlander had not denied the particular survey results, it said, but rather the conclusion that was being extrapolated from them.

[12] The complainant also submitted that viewers could have been unnecessarily alarmed by Mr Chappell’s comment:

Private motorists have every reason to be worried when they see a truck coming towards them. We only have to look at the record of accidents, particularly of recent times. 40 tonne plus vehicle heading your way, you don’t know what state of mind he’s in right then.

[13] According to RTFNZ, that comment was unnecessary, alarming and inaccurate. During the last ten years, the number of fatal accidents involving a truck and another vehicle per 100,000 kilometres covered had more than halved, it said. Also, in two-thirds of all fatal truck versus car accidents, the car was at fault.

[14] Referring to guideline 5d, the complainant argued that the programme did not clearly distinguish the reporting of facts from opinion, analysis and comment. It pointed to the following excerpts as examples:

Mr Chappell said that driver incomes in excess of $100,000 must result from the number of hours driven. There had been no attempt to investigate whether that was the basis upon which drivers were paid, or whether driver shortage was resulting in increased remuneration packages.

The reporter alleged that drivers were using drugs to stay awake, which was followed by Mr Chappell’s statement that “in excess of 30% of line haul drivers would be partaking in the use of those amphetamines”. No attempt was made to establish whether that was proven fact, or Mr Chappell’s opinion.

Mr Chappell’s comment regarding accident rates (“we only have to look at the record of accidents, particularly of recent times”) was presented unchecked. The complainant referred back to the truck crash statistics described in paragraph [13].

[15] RTFNZ also alleged that guideline 5e was breached because the programme in part depended on information sources that were not inherently reliable or demonstrated as being reliable. The item cited the results of a confidential survey of truck drivers, but no information (such as the number of participants or how it was conducted) was presented so that viewers could form an impression about the survey’s reliability.

Standard 6 (fairness)

[16] RTFNZ complained that the broadcaster did not deal justly and fairly with Mr Friedlander. Only 1½ minutes of Mr Friedlander’s estimated 15-20 minute interview was shown, and the excerpts did not reflect the full range of opinions and information provided by him. This, the complainant said, was in breach of guideline 6a.

Standards

[17] Standards 4, 5 and 6 and guidelines 4a, 4b, 5b, 5d, 5e and 6a of the Free-to-Air Television Code of Broadcasting Practice were 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.

Guidelines

4a   Programmes which deal with political matters, current affairs, and questions of a controversial nature, must show balance and impartiality.

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

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.

Guideline 6a

Care should be taken in the editing of programme material to ensure that the extracts used are a true reflection, and not a distortion, of the original event or the overall views expressed.

Broadcaster's Response to the Complainant

[18] In considering the Standard 4 (balance) complaint, CanWest agreed that the item dealt with a controversial issue of public importance – the issue of truck-driver safety. It noted that compliance with the balance standard did not require an equality of time or content. Rather, it required that viewers understood that there were significant “other points of view” and that the essential nature of those viewpoints was presented by the programme.

[19] The broadcaster considered that where every important allegation of wrongdoing was made by participants in the programme, Mr Friedlander was given ample opportunity to respond. Even when tested hard by the interviewer, Mr Friedlander had held to his point of view and expressed himself clearly and strongly.

[20] CanWest maintained that the programme made it clear that the majority of operators in the industry complied with the rules and operated safely. The presenter had stated at the beginning of the programme that “most of the [80,000] drivers are competent, experienced and safety conscious”, it pointed out. Further, Mr Friedlander had also made it clear that RTFNZ did not accept that the issue of non-compliance was widespread.

[21] In the broadcaster’s opinion, the camera angle did not make Mr Friedlander look any less credible to viewers. It did not agree that he was treated any differently than the others interviewed, or that Mr Friedlander was somehow discredited by his participation in the programme. Further, CanWest believed that the item was edited to ensure that Mr Friedlander’s answers were near to the allegations he was commenting on. The broadcaster also disagreed that the reporter had asked inappropriately leading questions.

[22] Turning to consider Standard 5 (accuracy), CanWest firstly found no breach of the standard by allowing Mr and Mrs Schutt to express their views on their son’s death. As the precise cause of the accident had not been established, it could not be said that the comments referred to by RTFNZ were inaccurate.

[23] The broadcaster also considered that viewers would have understood the reaction of Mr Friedlander to the survey results. He had dismissed the results, stating that he found it hard to believe that the stated level of offending was happening.

[24] CanWest also found that it was not inaccurate for Mr Chappell to express his view that any lack of driver safety was worrisome for other road users, or that given remuneration levels common in the industry some must be exceeding legal driving hours. It noted that Mr Friedlander had set out the figures for accidents where drivers were affected by drugs or alcohol, and that only a small proportion of the total were truck drivers.

[25] The programme’s producer was satisfied that the source of programme information was reliable, the broadcaster said. The survey referred to was not put up as a definitive result across the industry, but an informal questioning of some drivers. CanWest was satisfied that viewers would have understood the nature of the survey.

[26] In considering Standard 6 (fairness), CanWest noted the complainant’s concern about the small amount of footage used from Mr Friedlander’s interview. It believed that Mr Friedlander was provided with a reasonable opportunity to comment on the issues that were the focus of the programme. The broadcaster accepted that Mr Friedlander may have shared his views on other matters with the reporter, but a failure to include those views did not lead to unfairness or a breach of Standard 6.

Referral to the Authority

[27] Dissatisfied with the broadcaster’s response, RTFNZ referred its complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989.

Authority's Determination

[28] 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.

Standard 4 (balance)

[29] Standard 4 requires that balance be provided when controversial issues of public importance are discussed. The Authority observes that the 60 Minutes item looked at whether public safety was being compromised by a significant proportion of truck drivers driving in excess of the legal maximum number of hours, and whether some were using drugs to combat fatigue. The Authority considers this to be an issue to which Standard 4 applies.

[30] The Authority observes that the complainant’s overall concern about balance was that the programme did not fairly portray the viewpoint that most drivers do not take drugs, and that most companies do not allow them to drive over the maximum number of hours. In arguing this, RTFNZ observed that the item contained 7½ minutes of footage devoted to four speakers who supported the programme’s thesis, whereas Mr Friedlander’s comments only totalled 1½ minutes.

[31] The Authority has stated on a number of occasions that the time given to each significant viewpoint in a programme does not have to be mathematically balanced. The issue for determination is instead whether sufficient opportunity has been given to offer an alternative perspective, and whether that perspective was fairly presented. In Decision No. 2004-216 the Authority said:

Balance in a news and current affairs programme is not achieved solely through the presentation in equal measure of participants who are either for or against the issue under discussion. Instead, the key element of the standard is that significant perspectives are covered. The Authority also notes that broadcasting standards do not preclude a current affairs programme approaching an issue from a particular perspective or posing challenging questions for an organisation that has come under the spotlight.

[32] The Authority considers that in the present case, while Mr Friedlander was not given the same amount of time as the other participants, he was given considerable scope to answer the criticisms that were levelled at the industry in relation to excess hours and drug use. In the Authority’s view, Mr Friedlander clearly articulated his viewpoint that such behaviours were not prevalent in the industry, by:

• stating, in response to the Waikato University research findings that 30% of interviewees were over their legal hours of service at the time of the interview, that he found it hard to believe that this level of offending occurred within the industry as a whole
• outlining, in response to the police findings that 30 out of 90 trucks searched contained traces of drugs, the crash statistics which showed that truck drivers made up only a small percentage of fatalities caused by drug and alcohol use
• clearly stating that there was no evidence to show that those 30 truck drivers used drugs while they were driving, and that they might be using their trucks to carry their own drugs, rather than using them on the job.

[33] Overall, the Authority finds that the programme legitimately raised issues of public safety and offered an evidential basis for those concerns. At the same time it offered Mr Friedlander, a representative of the trucking industry, a reasonable opportunity to explain why those concerns were not warranted. Accordingly, the Authority finds that the programme satisfied the requirements of Standard 4 with respect to presenting significant points of view within this programme.

[34] In addition to its general concern about balance, the complainant made two further arguments under Standard 4. First, it submitted that the camera angle by which Mr Friedlander was filmed made him look less credible than Mr Chappell, meaning that the broadcaster’s treatment of him was not impartial. The Authority disagrees. It considers that the camera angle from which Mr Friedlander was filmed had no effect on his credibility, or on the impact of his statements.

[35] Second, RTFNZ complained about the reporter’s “leading questions” with respect to drivers hallucinating. The Authority notes that the use of leading questions, of itself, does not give rise to an issue of broadcasting standards. In the present case, the Authority finds that the journalist was simply using a questioning technique designed to encourage the participants to tell their story. This, in the Authority’s view, did not amount to a breach of Standard 4.

[36] Accordingly, the Authority declines to uphold the balance complaint.

Standard 5 (accuracy)

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

The programme implied that Darryl Schutt’s accident was related to the problem of excess driving hours

[38] In the complainant’s view, the reasonable viewer would have been left with the impression that Darryl Schutt’s accident was related to the problem of excess driving hours. The Authority disagrees. The programme clearly stated that “the police believe the truck he was driving had suffered massive brake failure”. It also reported that Mr Schutt’s employer, Regal, said “there was no suggestion excess hours contributed to the crash”.

[39] In the Authority’s view, Mr Schutt’s accident was used to introduce the fact that the investigation into whether “poor maintenance had anything to do with the crash” had uncovered that drivers employed by Regal had worked 38,000 illegal hours in one year. It did not suggest that this problem had contributed to Mr Schutt’s crash. The Authority finds that the overall impression would not have misled viewers. Accordingly, it does not uphold this part of the accuracy complaint.

Contrasting Dr Charlton’s finding (that 30% of drivers admitted they were over their hours of service) with Mr Friedlander’s comments about the levels of offending

[40] RTFNZ was concerned that the programme made it appear that Mr Friedlander had denied those survey results. The Authority notes that the reporter did say that “[Mr Friedlander] says he does not believe Dr Charlton’s research”. However, the reporter’s statement was followed by this comment from Mr Friedlander:

The checks and balances in the system are such that it’s hard for me to believe that there is that amount of offending going on. I believe there’d be a whole lot who’d drive up to their driving hours, many may suggest that at times they get tired, but there is very little evidence to show that the Police are uncovering significant problems associated with excessive driving hours.

[41] In the Authority’s view, this response did not imply that Mr Friedlander was disagreeing with the particular survey results reported by Dr Charlton. Rather, he was stating his view that the survey was not representative of the overall levels of offending in the industry. Consequently, despite the reporter’s statement, the Authority finds that viewers would have understood that Mr Friedlander was not denying the particular survey results but rather the conclusion that was being extrapolated from them. It finds that Standard 5 was not breached in relation to this matter.

Mr Chappell’s comment that “private motorists have every reason to be worried when they see a truck coming towards them. We only have to look at the record of accidents, particularly of recent times. 40 tonne plus vehicle heading your way, you don’t know what state of mind he’s in right then”

[42] The complainant argued that reasonable viewers would have been unnecessarily alarmed by this statement (guideline 5b), which was made by Mr Chappell after his comment that “in excess of 30% of linehaul drivers” would be using amphetamines. In response to the reporter’s questions about the prevalence of drug use in the industry, Mr Friedlander said:

Over the last 5 years there were…555 crashes involving drug and alcohol – that’s fatalities involving drug and alcohol – 549 of those were car drivers, 6 of them were truck drivers. So that tells me it is not a major problem in our industry. If it was going to be showing up, it would show up in the fatal crashes. And so there is no evidence, in New Zealand, of that being a major problem.

[43] The Authority finds that, while some viewers may have initially been concerned by Mr Chappell’s suggestion that so many truck drivers were using drugs, the effect of his statement was countered by Mr Friedlander’s measured reporting of the fatality rate involving truck drivers. The Authority finds that viewers would not have been unnecessarily alarmed and it declines to uphold this part of the complaint.

Mr Chappell’s statement that there were “drivers earning in excess of $100,000 a year – now that’s a lot of $15–$20 an hour, isn’t it?”

[44] In the Authority’s view, this was an expression of Mr Chappell’s opinion that most drivers earning in excess of $100,000 were probably driving an excessive number of hours. While his statement did not take into account any other possibilities – such as increased remuneration packages – the Authority finds that Mr Chappell was entitled to express his opinion about the most likely reason that drivers were earning those amounts. Because the statement was one of Mr Chappell’s opinion, and not a statement of fact to which the accuracy standard applies, the Authority considers that Standard 5 was not breached.

The use of a “confidential survey of truck drivers” without giving details so that viewers could form an impression about the reliability of the survey

[45] RTFNZ argued that guideline 5e was breached because CanWest did not demonstrate that the survey was reliable. It said that if the programme had included details about the survey, such as the number of participants and how it was conducted, viewers could have formed their own impressions about its reliability. In response, CanWest argued that the survey was not put up as a definitive result across the industry, but as an informal questioning of some drivers.

[46] The Authority agrees with CanWest. The programme did not imply that it was a scientific survey, as it was introduced with the statement that “we carried out a confidential survey of truck drivers”. The Authority finds that viewers would have understood the informal nature of the survey, especially in light of the visual images showing an interviewer with a clipboard interviewing subjects in the truck yard. Accordingly, it considers that guideline 5e was not breached and it does not uphold this part of the complaint.

Standard 6 (fairness)

[47] The complainant submitted that the programme was unfair to Mr Friedlander because only 1½ minutes of his 15–20 minute interview was shown. This breached guideline 6a, it said, because the item did not reflect the full range of opinions and information provided by him.

[48] Guideline 6a to Standard 6 states that broadcasters should take care in the editing of programme material to ensure that excerpts used are a true reflection, and not a distortion, of the original event or the overall views expressed. The complainant’s concern relates only to some of Mr Friedlander’s comments not being included in the item. There is no suggestion that the extracts from Mr Friedlander’s interview that were used in the item were distorted. Therefore the Authority finds that guideline 6a does not apply.

[49] Furthermore, the Authority notes that CanWest was not required to broadcast all of the points made by Mr Friedlander in his interview. Deciding which parts of an interview will be included in a programme is a matter of editorial discretion. In this case, the Authority finds that Mr Friedlander was given an opportunity to respond to all the major allegations in the item, and his perspective on those matters was clearly articulated in the programme.

[50] As a result, the Authority considers that the programme was not unfair to Mr Friedlander and it declines to uphold the fairness complaint.

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

Signed for and on behalf of the Authority

Joanne Morris
Chair
22 December 2005

Appendix

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

1. RTFNZ’s formal complaint – 1 July 2005
2. CanWest’s decision on the formal complaint – 2 August 2005
3. RTFNZ’s referral to the Authority – 3 August 2005
4. Further correspondence from RTFNZ – 31 August 2005
5. CanWest’s response to the Authority – 26 October 2005