Complaint under section 8(1)(a) of the Broadcasting Act 1989
Item on 3 News focussing on the sale of imported jade marketed as New Zealand pounamu – complainant’s shop identified – interior of shop shown in hidden camera sequence – unrelated shop assistant shown – allegedly unbalanced, inaccurate and unfair
Standard 4 (balance) – subsumed under fairness
Standard 5 (accuracy) – subsumed under fairness
Standard 6 (fairness) – shop clearly identified – no opportunity given to comment – hidden filming unjustified – upheld
This headnote does not form part of the decision.
 3 News, broadcast at 6pm on 21 September 2004, contained an item reporting on moves taken by Ngai Tahu to control the marketing of pounamu (New Zealand greenstone). The item alleged that overseas jade was being passed off as pounamu.
 The item showed a person entering the OK Gift Shop, which was identifiable from a shot of the shop front clearly displaying the shop’s name. A voiceover said:
A 3 News reporter posed as a tourist today looking to test accusations that retailers are selling imported jade while claiming it’s New Zealand pounamu or greenstone.
 The voiceover was accompanied by interior shots of display cabinets with greenstone jewellery and continued:
Two of the three retailers we checked admitted their jade was imported, but one insisted it was local stone.
 The visuals showed a store employee confirming that the items sold by the store were from New Zealand.
 The OK Gift Shop was the only retailer identified in the item.
 The OK Gift Shop complained to Canwest TVWorks Ltd, the broadcaster, alleging that the item breached standards of balance and fairness. An allegation of breach of privacy was subsequently withdrawn.
 The complainant subsequently added to its complaint, alleging that the content of the item was misleading and in breach of Standard 5 (accuracy) in that
 CanWest assessed the complaint under Standards 4, 5 and 6 of the Free-to-Air Television Code, which provide:
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.
News, current affairs and other factual programmes must be truthful and accurate on points of fact, and be impartial and objective at all times.
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.
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.
6b Contributors and participants in any programme should be dealt with fairly and should, except as required in the public interest, be informed of the reason for their proposed contribution and participation and the role that is expected of them.
6c Programme makers should not obtain information or gather pictures through misrepresentation or deception, except as required in the public interest when the material cannot be obtained by other means.
 In its response to the complainant, CanWest stated that Standard 4 had no application to the complaint, as the item did not deal with a “controversial issue of public importance” as required by the balance standard.
 The broadcaster did not accept that the item failed to make a distinction between fact and opinion, and so did not find a breach of Standard 5 (accuracy). In the view of CanWest, the inclusion of the unidentified shop assistant was more appropriately dealt with under the fairness standard.
 In respect of Standard 6, CanWest acknowledged that the item showed the OK Gift Shop’s signage but did not make it clear that the assistant interviewed was employed by another shop. However, the broadcaster maintained that this did not constitute a breach of the standard because the store employee shown in the report insisted that her company sold genuine, rather than imported, jade.
 CanWest did, however, invite the OK Gift Shop to contact the Christchurch newsroom for the opportunity to clarify what it sold and how it was labelled. Such a statement would be accorded “the same prominence given the original report.”
 CanWest considered that to uphold the complaint would place an unreasonable limit on the right to freedom of expression provided for in s14 of the New Zealand Bill of Rights Act 1990.
 Dissatisfied with the broadcaster’s response, the OK Gift Shop, through its lawyers, referred its complaint to the Authority under s.8(1)(a) of the Broadcasting Act 1989. The complainant submitted that CanWest erred in its decision that the item did not deal with a “controversial issue of public importance” as required by Standard 4.
 In the view of the complainant, the item implied that businesses were misleading purchasers of jade, especially tourists, and such conduct could adversely affect the New Zealand tourism industry.
 The complainant alleged that it was “so unfair as to be hardly worth noting” that it was given no opportunity to respond, after the item identified its shop in the item without identifying any other retailers.
 The complainant also submitted that it was grossly unfair to obtain the footage in a secretive manner when there was no evidence available to CanWest of wrongdoing on their part.
 CanWest added nothing further to its original reply to the complainant.
 The Authority sought further information from CanWest and OK Gift Shop to assist in determining the complaint.
 The Authority sought clarification from CanWest of whether video footage was taken inside the complainant’s store and, if so, whether any of this interior footage was included in the item. The Authority also sought further information as to whether a domestic hand-held camera was used to obtain footage of the complainant’s store.
 Additionally, the Authority asked the OK Gift Shop to confirm that interior shots of its shop were included in the 3 News item.
 The OK Gift Shop responded that “many of the shots” were taken from within the store, in particular all of the shots taken prior to the exchange with the shop assistant. The complainant also noted that security video footage from inside the store showed two TV3 staff inside the store, one of whom appeared to have a camera on his or her shoulder.
 CanWest confirmed that video footage taken inside the store was used in the item, and that it was obtained using a domestic hand-held camera. CanWest noted that covert filming was considered the best manner to obtain the information.
 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.
 The Authority considers (contrary to CanWest’s position) that the item did deal with a controversial issue of public importance – the passing off of imported jade as pounamu. However, the complaint was not that the OK Gift Shop’s perspective on this wider issue was not canvassed. The complainant was instead primarily concerned at the way in which it had been portrayed in the item. In these circumstances, the Authority considers that the complaint is more appropriately addressed under the fairness standard. Accordingly, it subsumes the Standard 4 complaint into its consideration of Standard 6.
 The complainant maintained the item implied that the shop assistant shown (who asserted that her shop sold genuine pounamu) was an employee of the OK Gift Shop, and that this was misleading. It also complained that fact and opinion were not sufficiently distinguished, and that 3 News had not made sufficient efforts to ensure its sources were reliable.
 In dealing with the allegations of inaccuracy, CanWest stated that these issues should more appropriately be considered as matters of fairness, and accordingly subsumed this aspect of the complaint in its consideration of Standard 6.
 The Authority agrees with this approach. The essence of the complainant’s concern is that the OK Gift Shop was treated unfairly by this item, and the Authority considers that this issue should also be the focus of its decision. The Authority therefore subsumes the standard 5 (accuracy) complaint under its consideration of fairness.
 The referral to the Authority outlined three planks to the unfairness complaint:
 The Authority agrees that the OK Gift Shop was clearly identified in the item, and that this created the impression that it may have been involved in the practice of passing off overseas jade as New Zealand pounamu. The Authority considers that, having identified the complainant in the item, the broadcaster should have offered the OK Gift Shop a chance to comment. In the absence of any comment or qualifying statement, viewers were left to conclude that the OK Gift Shop was one of the retailers guilty of selling imported jade as pounamu. If the item had intended to convey this message, then it should have given the OK Gift Shop the opportunity for rebuttal. If not, then it left an unfair implication.
 As for the second limb of the unfairness complaint, relating to the allegedly misleading footage of the shop assistant, the Authority notes that the item was ambiguous as to which shop the woman worked for, and that what she said was not clearly audible.
 The Authority concludes that in light of this ambiguity, this aspect of the item did not give rise to any unfairness. The Authority does not accept CanWest’s submission that the footage of the shop assistant and her apparent association with the OK Gift Shop mitigated any unfairness created by the rest of the item. But nor does it find that the use of the footage created a misleading or unfair impression of the shop.
 In relation to the covert filming, the Authority considers that as the OK Gift Shop had earlier been identified in the item, the subsequent covert footage aggravated the earlier implication that the shop was selling imported jade as New Zealand pounamu; an inference could be drawn that something dishonest was being uncovered. Again, without offering the complainant the opportunity to respond, this amounted to a breach of Standard 6.
 Standard 6 creates a presumption that hidden filming will be unfair unless there are overriding public interest factors. In this instance, the Authority has not been presented with any public interest considerations, nor can it identify any such factors, to justify obtaining pictures from hidden filming that could reasonably have been obtained through a more open approach. Accordingly, for the above reasons, the Authority upholds the fairness complaint.
 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 complaint that the broadcast by CanWest TVWorks Ltd of an item on 3 News on 21 September 2004 breached Standard 6 of the Free-to-Air Television Code of Broadcasting Practice. It does not uphold any other aspects of the complaint.
 Having upheld a complaint, the Authority may impose orders under ss.13 and 16 of the Broadcasting Act 1989. It notes that the broadcaster offered the complainant the opportunity to clarify its position in a statement to be accorded the same prominence as the original item. This opportunity was not utilised. Accordingly, the Authority does not intend to impose an order on this occasion.
Signed for and on behalf of the Authority
4 May 2005
The following correspondence was received and considered by the Authority when it determined this complaint: