Complaint under section 8(1)(a) of the Broadcasting Act 1989
Close Up – item about timber treatment T1.2 or TimberSaver – discussed concerns that the product was defective and putting homes at risk – allegedly unbalanced, inaccurate and unfair
Standard 4 (balance) – seen overall, item seriously criticised TimberSaver product – no scientific evidence provided to refute criticisms – no evidence provided of quality and suitability of product – unbalanced – upheld
Standard 5 (accuracy) – scientist on programme not independent – conflict of interest – contrary to guideline 5e – upheld – other aspects of accuracy complaint not upheld
Standard 6 (fairness) – seen overall, item unfair to Osmose – upheld
Broadcast of a statement
Payment of legal costs of $5,000
Payment of costs to the Crown $2,000
This headnote does not form part of the decision.
 An item broadcast on TV One on Close Up at 7pm on 11 July 2005 examined suggestions that a timber product being used on homes in the wake of the “leaky homes” scandal might not meet the standards administered by the Department of Building and Housing. The item started with a report which discussed concerns about the product, known as TimberSaver or T1.2.
 Interviews were conducted with Greg O’Sullivan from Prendos (a building consultancy firm), Dr Robin Wakeling (a timber scientist) and Gary Shuttleworth (Chief Executive of the Certified Builders’ Association). At the conclusion of the piece, the reporter read out a short statement from Osmose New Zealand, the manufacturer of TimberSaver.
 Following this, a political discussion took place between National MP Dr Nick Smith and the current Minister for Building Issues, the Hon Chris Carter, during which Dr Smith criticised both the Minister and the TimberSaver product. The Minister indicated he was awaiting advice from his officials.
 Through its solicitors, Osmose New Zealand complained to Television New Zealand Ltd, the broadcaster, that the item was unbalanced, inaccurate and unfair. The complainant said that it had been advised by one of its customers that TVNZ was going to broadcast an item about TimberSaver, and had contacted the reporter on the morning of the broadcast.
 Osmose stated that it requested an opportunity to participate in the programme but this had been refused. The company was instead invited to provide a written statement, with no guarantee that it would be used in the programme. The general manager of Osmose contacted the reporter again to express concern that the company was not being given the opportunity to comment, and offering to make a representative available for an interview. Again being refused, the company wrote to the reporter on the same day.
 Osmose noted that its letter had again asked for an opportunity to respond to any questions raised in the item about TimberSaver’s performance, and it had offered to make its Technical Sales Manager available for an interview. These offers were refused. The reporter contacted Osmose only to check certain selected statements that he intended to use on air, the complainant said.
 Alleging that the item had breached Standard 4 (balance), Osmose noted that the item commenced with the presenter of Close Up stating that there was no problem with TimberSaver if it was used properly. However, the complainant submitted that the thrust of the reporter’s item and the studio debate was that timber treated with TimberSaver was defective, unfit for use, inferior to other treatments and did not meet the requirements of the New Zealand Building Code. Osmose argued that all of these representations were untrue.
 Osmose also noted that Dr Smith had made “numerous derogatory comments” about timber treated with its product, all of which were untrue.
 Observing that the reporter had read parts of its letter at the conclusion of his piece, Osmose emphasised that this part of the item had lasted only 26 seconds. It added that this part of the item:
…did not draw out the fact that additional trials held to evaluate the rate of leaching from wood under the same rain exposure as would occur during construction had shown that the surface-applied preservative in TimberSaver is no more prone to wash off than other standards-approved H1.2 boron-based treatments. That this fact was not drawn out is of particular concern and is clearly relevant to whether the item as a whole was balanced. This is especially so when one of the implied criticisms that was levelled at our client’s product during the item was that it could wash off timber easily.
 Osmose also considered that the item was unbalanced because it failed to reveal that Dr Robin Wakeling had a conflict of interest. Dr Wakeling had been put forward in the item as a concerned independent expert, it said. However, he had subsequently confirmed to the Herald on Sunday that his employer could benefit financially from claims that T1.2 was likely to rot more easily than other timber treated with boron-based preservative.
 Most importantly, Osmose said, was the fact that it had been denied an opportunity to participate in the item in any meaningful way in order to defend the “serious and inaccurate” allegations made about its product.
 Turning to Standard 5 (accuracy), Osmose alleged that the item contained serious inaccuracies and was misleading and alarmist. Further, given Dr Wakeling’s conflict of interest, it submitted that TVNZ had failed to take all reasonable steps to ensure the reliability of the information he had provided.
 Osmose pointed to the following statements in the item which it alleged were incorrect:
Mark Sainsbury: “…but what [T1.2]’s being used for might not be what it was made for.”
Robin Wakeling: “[T1.2] is likely to perform better than untreated wood but it’s very unlikely
to perform as satisfactorily as proven preservative treated products.”
Nick Smith: “Now this is leaky homes all over again…. And now we’ve got a product
that’s a con, that’s just a surface treatment where through a cheapo
solution, they are not going to the expense of getting the boron right
through, and that leaves home owners exposed, and that is
Nick Smith: “…it’s just superficially treated, and that 80% of that wood can go rotten,
and can be eaten by borer, wrecking people’s most important asset. And
the Government must be held responsible for that incompetence.”
 Referring to the first statement, Osmose maintained that T1.2 was accredited for use, and was intended to be used, as internal framing timber. That was what it was being used for in the construction industry, the complainant said.
 Dr Wakeling’s statement was also incorrect, it said. The letter to Close Up’s reporter had explained that wood treated with TimberSaver had been independently tested under severe wet and warm conditions for more than 3½ years at Forest Research in Rotorua. It added:
The same trials also included the LOSP,1 H1.2 and H3.1 treatments, and data from these trials was used to support the approval of these products through New Zealand Standards. The results of these trials showed that the decay resistance of TimberSaver treated wood compares favourably with wood treated to an H3.1 standard, and exceeds more common H1.2 treatments
 Calling Dr Smith’s statements “derogatory”, Osmose denied that its product was a “con” or a “cheapo solution” or that it left “home owners exposed”. Nor had the Government been incompetent in approving T1.2 timber as an alternative solution, the complainant wrote. Further, there was no evidence to support Dr Smith’s statement that 80% of a piece of T1.2 timber would go rotten or be susceptible to borer.
 Osmose concluded that these inaccuracies, and the general thrust of the item that TimberSaver was not fit for purpose, amounted to breaches of Standard 5. In addition, TVNZ’s failure to take reasonable steps to ensure the reliability of Dr Wakeling’s statements also amounted to a breach of the standard.
 The complainant also argued that Standard 6 (fairness) had been breached by TVNZ’s failure to give Osmose an opportunity to provide comment, product information and test results which proved the effectiveness of TimberSaver. Osmose considered that TVNZ had not dealt with the company justly and fairly in the preparation and preparation of the programme, adding that the item had had serious commercial consequences for Osmose.
 TVNZ assessed the complaint under Standards 4, 5 and 6 and guidelines 4a, 4b, 5a, 5b, 5d, 5e and 6b of the Free-to-Air Television Code of Broadcasting Practice. 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.
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.
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.
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.
 In considering the complaint, TVNZ felt that Osmose saw the item principally as a consumer piece, such as might be found on the Fair Go programme. In fact, TVNZ said the item seemed largely to be a political piece – an argument between Labour and National over whether a building material approved by the government in the context of the “leaky homes” scandal was in fact capable of meeting the standards set by the government.
 Looking at Standard 4 (balance), TVNZ noted that the reporter’s pre-recorded item was at pains to emphasise that, used properly, TimberSaver was effective. It noted the following statements from the item:
 Later, TVNZ observed, the reporter had read a summary of what he had been told by Osmose. Further, Mr Carter had made reassuring comments about the product such as:
This product went through a vigorous testing, as all products that are going to be accredited are. It’s a vigorous testing regime which is then independently evaluated.
 In determining the issue of balance, TVNZ considered that the combination of the introduction, the comments in the set-up piece and the remarks of Mr Carter had adequately balanced comments made by the other interviewees.
 The broadcaster did not accept that “balance can be achieved by the stopwatch” and noted that guideline 4b indicated that no set formula could be advanced in this regard. TVNZ was of the view that all significant viewpoints were presented in as fair a way as possible. Close Up had made a valid editorial decision not to include a representative from Osmose in the item, it said, and had checked Osmose’s statement before the broadcast.
 TVNZ also emphasised that Standard 4 allowed for balance to be achieved “within the period of current interest”. The story was an ongoing one, it said, and recent news suggested that the concerns of TimberSaver’s detractors had no foundation. That story had been broadcast on One News on 19 August, TVNZ wrote. Clearly the period of current interest was still alive, TVNZ argued, especially as Dr Smith was reportedly refusing to retract his comments.
 The broadcaster stated that Dr Wakeling’s possible conflict of interest had come as a surprise to the Close Up team. Dr Wakeling had been involved in the programme as an acknowledged expert in an area where expertise was thin on the ground, TVNZ said. The broadcaster was of the view that, even allowing for a possible conflict of interest, balance had been achieved overall through other speakers and the content of the reporter’s script.
 Referring to Standard 5 (accuracy), TVNZ noted that the alleged inaccuracies in Dr Wakeling’s statements were specifically contradicted in the excerpts from the Osmose statement.
 As far as Dr Smith’s comments were concerned, it seemed to the broadcaster that his remarks were clearly expressions of genuinely-held opinion. Expressions such as “con” and “cheapo solution” suggested opinion expressed in a political context rather than assertions of fact. TVNZ noted that guideline 6d of Standard 6 specifically allowed for individuals to express their opinions. As far as Standard 5 was concerned, TVNZ maintained that it had accurately reported what the two MPs were saying.
 TVNZ also considered that Standard 6 (fairness) was not breached. It did not accept that Osmose had been treated unfairly. TVNZ noted that Close Up had checked that what was to be said in the broadcast accurately reflected Osmose’s position, and the programme had made it clear that the product posed no problems if used properly.
 Dissatisfied with TVNZ’s decision, Osmose referred its complaint to the Authority for investigation and review under s.8(1)(a) of the Broadcasting Act 1989.
 TVNZ added nothing further to its original response to the complainant.
 Osmose reiterated its view that the short introduction indicating that there was no problem with TimberSaver “if it’s used properly” did not balance the claims made in the item that it was defective, unfit for purpose, and inferior to other treatments. Further, those words had been immediately followed by the statement that “what it’s being used for might not be what it was made for”. This had immediately undermined the effect of the initial comment, the complainant said. Osmose maintained that T1.2 timber was intended for use as an internal framing timber, and that is what it was being used for in the building industry.
 Osmose noted that the Close Up item had caused sales of timber treated with TimberSaver to plummet. The fact that One News had subsequently broadcast a very short report about the investigation of T1.2 did not redress the damage caused to its product’s goodwill, the complainant said.
 The complainant also submitted that TVNZ’s responses in relation to the alleged inaccuracies were insufficient.
 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.
 In the Authority’s view, the complainant’s primary concern about balance was that the item amounted to a damning criticism of TimberSaver, and that Osmose was not given an opportunity to address specifically the matters raised in the item.
 Standard 4 requires that balance be provided when controversial issues of public importance are discussed. In the view of the Authority, the Close Up item had two major themes – concerns about the way in which the product was being used, and concerns about the suitability of the product itself.
 Osmose’s concerns focus on the second of these themes, and the Authority considers that the discussion of this issue clearly required balance; in light of the widespread public controversy over leaky homes it is a matter of public importance whether a government-accredited building material may be susceptible to rot and unfit to use.
 In the Authority’s view, when viewed as a whole, the programme clearly raised concerns about whether TimberSaver was susceptible to rot, and thus whether it was suitable for use in house construction. The first section of the item raised a number of different issues (albeit in a confused way), but during the studio discussion with the two politicians, a very clear message emerged – that TimberSaver was susceptible to rot and borer, and its use put homeowners at risk of further leaky building problems. The Minister for Building Issues, the Hon Chris Carter, was unable to offer a substantial defence of the product, and in the face of aggressive criticism from Dr Smith, viewers were left in no doubt that the use of TimberSaver could potentially result in significant problems.
 In light of the clear focus of the studio discussion, the presenter needed to make reasonable efforts to provide balance to the criticisms being made. In the view of the Authority, he made no effort to do this, and allowed the criticisms of Dr Smith to go unchallenged. The effect was to create the impression that there were serious problems with this timber treatment. A subsequent report from the Department of Building and Housing has refuted this claim, but even at the time of the broadcast, there were clearly two sides to the story.
 While TVNZ may have expected the Minister for Building Issues to mount a more robust defence of the accreditation process and of the product, the Authority considers that relying on his participation did not amount to “reasonable efforts” to ensure balance. If the item was essentially a political piece, focussing solely on the adequacy of the political response to the issue, Mr Carter’s appearance may well have provided the necessary balance. But the item addressed much more than just the political response; it also raised clear concerns about the quality of the product. In these circumstances, a substantive response in defence of the product was especially important.
 The Authority also considers that the criticisms of TimberSaver were not balanced by material found elsewhere in the item. It finds that the 26-second statement from Osmose was insufficient to convey, in any compelling sense, the other significant perspective that the product did not constitute a risk to safe building when used properly. Osmose’s statement, read out in part by the reporter, did not directly address the specific criticisms of TimberSaver made in the item. Indeed, it could not have done so, as Osmose was not informed of the item’s content in advance.
 Based on the information provided by Osmose, the Authority accepts that there is a significant body of evidence, arising from the accreditation process, to indicate that when used properly, TimberSaver is a satisfactory product that performs well. The Authority considers that to provide balance, once the item challenged the suitability of the product, it also needed to provide the scientific conclusions which were the basis for the product’s accreditation by the Building Industry Authority. Without this information, viewers were left largely uninformed about the scientific evidence supporting the quality and suitability of the product for its intended purpose.
 The Authority accepts that the broadcaster was entitled to raise concerns about TimberSaver. Nevertheless, in light of the “leaky homes” controversy and its impact on so many New Zealanders, it had a high obligation to ensure that balanced information was presented when reporting on this issue.
 The Authority considers that the lack of balance in this item was not remedied by a later One News item which reported that TimberSaver had “been given an initial all-clear” by the Department of Building and Housing, and that it would perform if used correctly. While that was within the period of current interest – which for this issue remains ongoing – the Authority considers that the 30-second clip broadcast almost six weeks later was insufficient to provide balance to the serious and detailed criticisms made in the initial current affairs programme.
 For the above reasons, the Authority considers that the broadcaster failed to provide a balanced programme which contained both significant perspectives on this important issue. It considers that Standard 4 was breached in this respect.
 The complainant has identified several alleged factual inaccuracies in the programme, all of which have been outlined in the summary of correspondence. The Authority has considered each allegation in turn.
The presentation of Dr Robin Wakeling as an independent expert, when in fact he was employed by Osmose’s main competitor
 The Authority notes that the only scientific basis in the item for the claims about TimberSaver’s lack of durability was the evidence given by Dr Wakeling. In those circumstances, the Authority finds that TVNZ had an obligation to ensure that he was independent, with no apparent conflict of interest.
 The Authority notes that Dr Wakeling directly compared the merits of TimberSaver with his employer’s product by stating that T1.2 was “very unlikely to perform as satisfactorily as proven preservative-treated products”. The Authority considers that had viewers been aware of his position, his views would likely have been treated with more scepticism, and the impact of his criticism substantially lessened.
 Guideline 5e of Standard 5 (accuracy) states that broadcasters must take all reasonable steps to ensure that the information sources for current affairs programmes are reliable. In the Authority’s view, TVNZ failed to meet its obligations under this guideline, and it upholds this part of the accuracy complaint.
The presenter’s statement that “what [T1.2]’s being used for might not be what it was made for”
 In the Authority’s view, the presenter’s statement was ambiguous. On the one hand, it could be interpreted in the way alleged by Osmose, namely that TimberSaver was being used in house construction and it should not be. On the other, it could be interpreted as meaning that the timber was not being used in the intended manner by builders, that is, TimberSaver was being left exposed to the elements for more then two months.
 In light of the unclear meaning, the Authority finds that this statement cannot be said to be inaccurate. Accordingly, it declines to uphold this part of the complaint.
The statement by Dr Wakeling that “[T1.2] is likely to perform better than untreated wood but it’s very unlikely to perform as satisfactorily as proven preservative treated products”
 The Authority considers that this statement was clearly an expression of Dr Wakeling’s opinion as to the effectiveness of TimberSaver. As his comment was not presented as a statement of fact to which the accuracy standard applies, the Authority finds that Standard 5 was not breached in this respect.
The statement from Dr Smith that “Now this is leaky homes all over again…. And now we’ve got a product that’s a con, that’s just a surface treatment where through a cheapo solution, they are not going to the expense of getting the boron right through, and that leaves home owners exposed, and that is incompetent”
 Similarly, the Authority is of the view that Dr Smith’s comments about TimberSaver being a “con” and a “cheapo solution” were clearly distinguishable as expressions of his opinion about the product. It does not uphold this part of the complaint.
The further statement from Dr Smith that “…it’s just superficially treated, and that 80% of that wood can go rotten, and can be eaten by borer, wrecking people’s most important asset. And the government must be held responsible for that incompetence.”
 In the Authority’s view, the majority of viewers would understand that Dr Smith’s comments were not assertions of scientific fact. Rather, they were statements made by a politician in an exaggerated manner during the course of an election campaign. The Authority considers that Dr Smith’s comments were not presented as “points of fact” to which Standard 5 applies. Accordingly, it declines to uphold this aspect of the complaint.
 For the same reasons outlined in paragraphs – above, the Authority finds that TVNZ’s failure to ensure the independence of Dr Wakeling also resulted in a breach of Standard 6 (fairness). The Authority finds that TVNZ’s presentation of Dr Wakeling as an “independent expert” was unfair to Osmose as the manufacturer of the product he criticised.
 As noted earlier, the Authority finds that the Close Up item had two major themes – concerns about the way in which the product was being used, and concerns about the suitability of the product itself.
 As has already been discussed above in relation to the balance complaint, the first section of the item, comprising the presenter’s introduction and the reporter’s pre-recorded piece, was ambiguous, and contained different messages. The focus of the item, however, changed markedly during the studio discussion, and became one-sided in its focus on questioning the suitability of the product.
 While TVNZ may have intended this segment to be a debate between Dr Smith and Mr Carter about the appropriateness of the Building Industry Authority’s accreditation of TimberSaver, Mr Carter did not mount a defence of either the process leading to the accreditation of the product, or of the product itself. Mr Carter said that as he did not have the requisite information available, he was unable to confirm whether robust processes had been followed, what the results of the pre-accreditation were, or thus whether the product provided sufficient protection to consumers. By declining to pre-judge the matter, Mr Carter specifically allowed for the possibility that the product would be found to be defective; he stated that “if there is a problem with this product, [the government] will fix it up”. This left Osmose without an advocate in the studio debate.
 Furthermore, the Authority finds that Osmose’s statement, which was read out immediately prior to the studio discussion, was undercut by the presenter’s later deprecatory language and manner; by way of example, the Authority refers to the presenter’s initial question to Mr Carter asking “would you be comfortable building a house right now, using this?” and his statement that “they came up with this, but it would seem in some ways that again it’s like the original problem, it’s a short cut”.
 Viewed as a complete package, the Authority considers that the item was unfair to Osmose. The Authority considers that the company was not given a reasonable opportunity to defend its product, and the item did not refute the criticisms being made. Because of the potential commercial impact on Osmose of such negative coverage, the Authority considers that the item was unfair to Osmose and thus also upholds the complaint under Standard 6.
 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.
For the above reasons the Authority upholds the complaints that the broadcast by Television New Zealand Ltd of an item on Close Up on 11 July 2005 breached Standards 4, 5 and 6 of the Free-to-Air Television Code of Broadcasting Practice.
 Having upheld the complaint, the Authority may make orders under ss 13 and 16 of the Broadcasting Act. It invited submissions on orders from the parties.
 Stating that the item had resulted in substantial adverse economic consequences to its business, Osmose provided a draft statement which it submitted TVNZ should broadcast during Close Up. Osmose also asked that the statement be published in several major newspapers and trade publications.
 Osmose stated that it had incurred legal costs of $14,389.25 plus GST in connection with its complaint. It contended that TVNZ should be ordered to pay $7,500 towards these costs. Further, the complainant submitted that TVNZ should pay $5,000 costs to the Crown.
 TVNZ stated that it preferred not to make any submissions on orders. However, it stressed its view that if a statement was ordered, its wording should be approved by the Authority and not dictated by the complainant. Similarly, TVNZ contended that the size of any financial awards should be decided by the Authority.
 The Authority agrees with Osmose that an order requiring TVNZ to broadcast a statement is appropriate. The Authority has considered the draft statement attached to the complainant’s submission, but sees no reason to depart from its usual practice by which the broadcaster is required to draft a statement for the Authority’s approval.
 The Authority notes Osmose’s submission that TVNZ should publish a statement in several major newspapers and trade publications. This order has previously been made only in exceptional circumstances. On this occasion, the Authority believes that the on-air statement and the publicity attracted by the publication of its decision will be sufficient.
 In determining whether to order a contribution towards legal costs, the Authority has taken into account the relatively straightforward complaints process. However, the Authority considers that it was not unreasonable for the complainant to be concerned about protecting its commercial reputation and to seek legal advice in pursuing its complaint.
 Osmose was successful on several aspects of its complaint, and the Authority is of the opinion that a significant contribution towards its legal costs is appropriate. It considers a reasonable award in this case to be $5,000.
 The Authority has found that this item was unbalanced, inaccurate and unfair to Osmose. Under these circumstances, the Authority considers that an award of costs to the Crown is warranted to mark the significant breach of broadcasting standards. The Authority considers that $2,000 is an appropriate award.
The Authority makes the following orders pursuant to s.13 and s.16 of the Broadcasting Act 1989:
1. Pursuant to s.13(1)(a) of the Act, the Authority orders Television New Zealand Ltd to broadcast a statement approved by the Authority. That statement shall:
be broadcast within one month of the date of this decision during Close Up, on a date to be approved by the Authority
contain a comprehensive summary of the Authority’s decision.
The Authority draws the broadcaster’s attention to the requirement in s.13(3)(b) of the Act for the broadcaster to give notice to the Authority of the manner in which the above order has been complied with.
2. Pursuant to s.16(1) of the Act, the Authority orders Television New Zealand Ltd to pay to the complainant costs in the amount of $5,000, within one month of the date of this decision.
3. Pursuant to s.16(4) of the Act, the Authority orders Television New Zealand Ltd to pay to the Crown costs in the amount of $2,000, within one month of the date of this decision.
The orders for costs shall be enforceable in the Wellington District Court.
Signed for and on behalf of the Authority
22 February 2006
The following correspondence was received and considered by the Authority when it determined this complaint:
1Light Organic Solvent Preservatives. A method of timber treatment which utilises white spirit (dry cleaner solvent) instead of water as the carrier of the preservative chemicals into the wood.