BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Newstalk ZB – Discussion about leaky building syndrome – caller "Graham" referred to two leaking problems with his new home in Newlands – complainant developer in Newlands – only one leaky building problem – "Graham" an employee of TRN – unfair

Findings
Principle 5 – complainant neither identified nor identifiable – not referred to – no uphold

This headnote does not form part of the decision.

Summary

[1] The leaky building syndrome was one of the topics discussed on Newstalk ZB broadcast in Wellington on the morning of 18 September 2002. A caller "Graham" described leaky building problems with his bathroom and his deck in his new home in a development in the Wellington suburb of Newlands.

[2] Kingdom Residential Housing Ltd, through its solicitors, complained to The Radio Network Ltd, the broadcaster, that the item was unfair. Noting that it was the developer which had sold the house referred to, it pointed out that "Graham" was an employee of TRN who had used a false name, and that the bathroom problem was an issue of plumbing, not a leaky building matter. Moreover, both matters had been rectified.

[3] In response, TRN said that the developer was not named and would not have been identifiable. Noting that the issue with the deck was acknowledged as a leaky building matter, it declined to uphold the complaint.

[4] Dissatisfied with TRN’s response, the complainant referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

For the reasons below, the Authority declines to uphold the complaint.

Decision

[5] The members of the Authority have listened to a tape of the programme complained about and have read the correspondence, which includes a transcript of the item, which is listed in the Appendix. The Authority determines the complaint without a formal hearing.

The Programme

[6] The leaky building syndrome was one of the topics discussed on Newstalk ZB on 18 September 2002. One caller, "Graham", described his experiences with two problems with his new house. The caller said it had been necessary to repair the bathroom, and there had been trouble with the cladding on a balcony.

[7] Newstalk ZB is a talkback station and its morning session in Wellington is hosted by Justin du Fresne.

The Complaint

[8] Through its solicitor, Kingdom Residential Housing Ltd complained to the broadcaster that the item was unfair. The complainant noted that the programme referred to a subdivision in Newlands, and said that it was the developer of the Bellevue subdivision. The solicitor added:

It is well known that my client is developing the Bellevue subdivision in Newlands and because of extensive advertising of the subdivision which my client undertakes it would be surprising if the majority of listeners to the programme were unable to identify the building company as being my client company.

[9] The complainant said that the caller, identified as "Graham", was Mr G McTavish who bought a residential property in Bellevue in Newlands in mid 2001. Moreover, it wrote, Mr McTavish was an employee of TRN. The complainant acknowledged that Mr McTavish had complained about the house which, it added, had been remedied. The problem in the bathroom referred to, it wrote, was a matter of plumbing, not a "water tightness" issue. The bathroom had been dismantled and reinstated at no cost to Mr McTavish, but the window which Mr McTavish claimed had been resealed, had not been touched. At the time the bathroom was rebuilt, the complainant added, Mr and Mrs McTavish had decided to reposition the bath. However, the broadcast had not included the point that the bathroom had been remodelled at the complainant’s request.

[10] The complainant emphasised that the bathroom involved a "plumbing installation" problem, not a "water tightness" issue.

[11] The complainant acknowledged that the balcony (or deck) matter had involved a "water tightness" issue, but that it had been fixed.

[12] The complainant’s solicitor concluded:

Unless a response is received within 14 days then it is my client’s intention to lay a complaint with the Authority. The allegations made publicly on your radio station, linking my client with the "leaky building syndrome", are plainly damaging my client’s reputation and business. My client intends to take steps to protect its reputation and you might also care to address this aspect of the matter in your reply.

The Standards

[13] The broadcaster assessed the complaint under Principle 5 of the Radio Code of Broadcasting Practice. It reads:

Principle 5

In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.

The Broadcaster’s Response to the Complainant

[14] TRN acknowledged that the caller "Graham" was its employee, Mr Gordon McTavish. It described the use of a nom de plume as immaterial on the basis that many callers to talkback radio used nom de plumes. It added:

His appearance on the programme came about after an editorial discussion decided to pursue the issue of leaky buildings and as it was known Mr McTavish had experienced problems it was felt it would be useful for him to relate those experiences. The nom de plume was used to avoid any possible identification with the developer.

[15] Dealing with the issue, first, as to whether a listener would identify the developer referred to in the item, TRN said that there were currently three subdivisions being carried out in the Newlands area. It said:

It would therefore be rather stretching a point to believe that the majority of listeners would identify your client as the developer concerned. No mention was made of Bellevue. It should be added that under the current ‘systemic’ condition prescribed to the building industry, few developers are escaping some scrutiny when it comes to leaky buildings.

[16] Turning to the second issue, whether the description of the issues was fair, TRN wrote:

While there appears to be some disagreement over the bathroom episode the caller stands by his version of events. I should add that at no stage did he say a window had to be re-sealed. The bathroom problem did come down to a leakage problem and the caller underlined some of the difficulties faced by home buyers.

[17] TRN pointed out that the caller’s description of the deck problems was not disputed, and on the basis that the developer was not identified and the house had a "leaking" problem, it declined to uphold the complaint.

The Referral to the Broadcasting Standards Authority

[18] The complainant’s solicitor summarised the matters referred to the Authority:

My client believes that Mr McTavish, an employee of the radio station, in using a false name to complain about a perceived building problem was unfair to my client which could be identified from the remarks made by Mr McTavish. It is not correct to say that he was using a non-de-plume, which is a borrowed name under which an author writes. In this case the name was plainly used not for the purposes of possible identification of the developer but presumably so that the credibility of the complaint might not be undermined by the identification of Mr McTavish as an employee of the radio station.

The Broadcaster’s Response to the Authority

[19] TRN disagreed that a nom de plume had been used to disguise Mr McTavish’s identity as an employee of TRN. Rather, it was used to ensure that the parties would not be identified, and:

… the talkback call was designed to give an example of problems experienced under the rotting building syndrome and was not there to specifically push an individual cause.

[20] TRN reiterated the point that there were three subdivisions being developed in Newlands, and as the complainant admitted to a water-tightness problem, a legitimate discussion about the "leaky building syndrome" had taken place.

The Complainant’s Final Comment

[21] The complainant maintained that the caller’s use of an alias was "quite improper", and that his dispute had nothing to do with the "leaky building syndrome". The complainant’s solicitor summarised the complaint:

… the point of the complaint is that it is quite wrong for Mr McTavish, an employee of the radio station, to use an alias to be able to air his personal grievances against my client and in a way which led people to be able to identify the building company.

[22] Several listeners, it was said, had been able to identify the caller and the company as that company was a prominent property developer in the Newlands area.

The Authority’s Determination

[23] Kingdom Residential Housing complained that the discussion about the "leaky building syndrome" on talkback radio on Newstalk ZB in Wellington was unfair to it. A caller, using the name "Graham", spoke of his experience in 2001 with his new house in Newlands. The complainant believed that "Graham" was in fact Gordon McTavish, an employee of TRN, for whom it had built a house, and it disputed strongly aspects of Mr McTavish’s description of the problems experienced.

[24] The Authority considers that the caller’s use of an alias on this occasion does not raise an issue of broadcasting standards. As its use was not for the purpose of deception or to mislead, the Authority concludes that it does not raise an issue of fairness. The Authority agrees that there is an issue of credibility involved in radio station employees using aliases on-air, but this is distinguishable from being a broadcasting standards issue.

[25] The complainant’s central focus was that it had not been dealt with fairly during the broadcast. As Principle 5 applies to a party which is referred to, the Authority’s first task is to determine whether Kingdom Residential was in fact identified, or would have been identifiable, to listeners.

[26] The caller said:

We’re in a subdivision up in Newlands and we’ve been there for just on a year now and we’ve had two incidences of leaky building syndromes in that period of time.

[27] The broadcaster advised that this comment did not identify the complainant to listeners as there were currently three subdivisions being carried out in Newlands. In response, the complainant stated that it was "a prominent developer of property in the Newlands area" and, in addition, suggested that listeners, who had identified the caller, would have known that Kingdom was being referred to.

[28] Having considered the arguments advanced, and noting that the caller used an alias, the Authority finds that the complainant was neither identified nor would it have been identifiable. Accordingly, it concludes that the complainant was not "referred to" as required by Principle 5 and it declines to uphold the complaint.

[29] The Authority observes that to find a breach of broadcasting standards on this occasion would be to apply the Broadcasting Act 1989 in such a way as to limit freedom of expression in a manner which is not reasonable or demonstrably justifiable in a free and democratic society (s.5 of the New Zealand Bill of Rights Act 1990). As required by s.6 of the New Zealand Bill of Rights Act, the Authority adopts an interpretation of the relevant standards which it considers is consistent with and gives full weight to the provisions of the New Zealand Bill of Rights Act.

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

Signed for and on behalf of the Authority

Peter Cartwright
Chair
30 January 2003

Appendix

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

1. Kingdom Residential Housing Ltd’s Complaint (through its solicitor) to The Radio Network Ltd –
   14 October 2002
2. TRN’s Response to the Formal Complaint – 17 October 2002
3. Kingdom Residential Housing’s Referral to the Broadcasting Standards Authority –
   12 November 2002
4. TRN’s Response to the Authority – 26 November 2002
5. Kingdom Residential Housing’s Final Comment – 9 December 2002