BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint
Fair Go – item about pamphlet distributed by complainant – a legal firm – offering assistance to victims of sexual abuse in dealing with ACC – item failed to maintain standards of law and order – unbalanced and complainant’s response presented inadequately – unfair as story subject’s waiver was incomplete – inaccurate – hearing sought in view of numerous complex legal and factual issues

Decision on application for hearing
Declined

This headnote does not form part of the decision.

INTERLOCUTURY DECISION

Background

[1] A pamphlet offering assistance to victims of sexual abuse in securing compensation from ACC was distributed by the complainant – a legal firm. On behalf of a victim, named as "Sally", Fair Go reported her dissatisfaction with the complainant and investigated the propriety of a pamphlet of this kind. The item was broadcast on Fair Go on TV One at 7.30pm on 26 June 2002.

[2] Wakefield Associates complained to Television New Zealand Ltd, the broadcaster, that the broadcast breached the standards relating to the maintenance of law and order, balance, fairness and accuracy. It said that the item displayed a lack of understanding of the service offered, and because TVNZ had failed to provide an appropriate waiver, it was unable to respond adequately to the issues.

[3] In response, TVNZ acknowledged one inaccuracy, which it described as "minor", but declined to uphold all the other aspects of the complaint. It maintained that it had sent the complainant an appropriate waiver and the standards had not been breached.

[4] Dissatisfied with the TVNZ's decision, Wakefield Associates referred the complaint to the Broadcasting Standards Authority under s.8(1)(a) of the Broadcasting Act 1989.

Application for Hearing: Complainant’s Submission

[5] When it referred its complaint to the Authority, Wakefield Associates requested a formal hearing before the Authority for the determination of its complaint. The grounds of the application are that the complaint involves important and serious issues which are factually and legally complex.

[6] By way of elaboration, the complainant listed 13 issues of disputed fact which, it argued, could not be resolved on the basis of written submissions. It also argued that the complex issues involved the interpretation and application of:

• Door to Door Sales Act 1967
• Broadcasting Act 1989
• Sundry provisions of relevant Accident Compensation legislation

Application for Hearing: Broadcaster’s Response

[7] TVNZ considered that there was nothing in the complaint that justified the Authority to depart from its usual practice of determining complaints without a formal hearing. It maintained that the item involved a straightforward consumer rights issue.

[8] In justifying this approach, TVNZ said that Fair Go had made every effort to broadcast a balanced, fair and accurate report, and that Wakefield Associates had been kept informed of the story’s progress. TVNZ described the complainant’s approach as "legalistic" and, as a result, explained that it had been necessary for Fair Go to seek independent legal advice for "Sally".

[9] TVNZ also observed that some of the (so called) disputed facts listed by the complainant were comments made by "Sally" in the programme. TVNZ said that the item was a fair and accurate summary of what "Sally" had told Fair Go. Moreover, it stated, the complainant had been advised in detail of "Sally’s" concerns before the broadcast, and had been offered the opportunity to respond.

The Complainant’s Submission in Response

[10] It was the complainant’s opening submission that the broadcaster’s letter appeared to focus more on the merits of the complaint, rather than whether or not a formal hearing should be held by the Authority.

[11] Noting TVNZ’s comment that Fair Go had reported "Sally’s" comments accurately, the complainant contended that her opinions were not based on accurate facts. As for TVNZ’s opposition to a hearing as being an overly "legalistic" approach, the complainant said that it highlighted the need to recognise the importance for professionals to keep clients’ affairs secret, and on this occasion that lack of understanding meant the failure by Fair Go to provide a comprehensive waiver.

[12] The complainant maintained that a formal hearing was necessary to ensure that the facts were fully explored.

The Authority’s Determination

[13] It is the Authority’s practice to determine formal complaints without a hearing. It has found from its experience that the determination of complaints on the papers usually enables parties to adduce all the evidence they wish to present.

[14] While it has been the Authority’s practice to determine complaints without a hearing, it does not have a policy not to hold hearings. Indeed, as an aspect of each determination, the Authority considers whether the parties have had an adequate opportunity, by the use of papers, to put all relevant and necessary material before the Authority. The Authority has reached the conclusion, unless there are relevant factual issues in dispute, that the resolution of complaints on the papers is usually sufficient and appropriate.

[15] In adopting the practice of determining complaints on the papers, the Authority has had regard to the provision in the Broadcasting Act (s.10(2)) that it should perform its complaints determination function with "as little formality and technicality" as permitted by the Act, having regard to the principles of natural justice. Although the Authority has the power to convene a formal hearing, it has noted in previous decisions (Decisions Nos: 1999-201/202 and 2002-071/072 ) that it reserves the exercise of this power for occasions when hearing the parties would assist the Authority in the determination of the complaint.

[16] Wakefield Associates has argued that a hearing is necessary in this instance to deal with complex legal and factual issues.

[17] Dealing first with the legal issues, the Authority considers that written submissions will be sufficient to deal with any issues which may arise out of the Door to Door Sales Act 1967. The same applies by reference to the Fair Trading Act 1987 and the ACC legislation, to any extent that they may be relevant.

[18] The adequacy of the waiver in regard to solicitor/client confidentiality is viewed by the complainant as being a major aspect of the referral. As this is not an issue of broadcasting standards, the Authority considers that it does not fall within the ambit of its jurisdiction. However, to any extent to that this issue may impact on broadcasting standards, the Authority will obtain its own legal advice if considered necessary.

[19] Turning to the 13 matters listed in the referral as "disputed facts", the Authority notes that seven of them challenge or raise doubts as to the veracity of statements made by "Sally", the victim. In the determination of this complaint, the Authority is satisfied that appearances by or on behalf of the complainant would not materially assist it in determining issues of credibility.

[20] Two of the thirteen matters labelled "issues of disputed fact" involve the credibility of two persons, a solicitor and a consumer advocate, both of whom participated in the subject programme. Short of producing these two persons as witnesses at any Authority hearing, and in turn subjecting them to cross-examination, the Authority is satisfied that no good purpose would be served in convening a hearing.

[21] Evidence that there is a debate "within the legal profession as to whether charging on a contingency basis is appropriate", is not viewed by the Authority as being of assistance in helping to resolve the referral of this complaint.

[22] As to the remaining three matters raised by the complainant as being issues of disputed fact, it is the Authority’s conclusion that their resolution would not be materially assisted by convening a hearing of the Authority.

For all reasons given above, the Authority declines the application from Wakefield Associates for a formal hearing.

[23] The Authority requests that the complainant provide a written submission which explains why it is dissatisfied with TVNZ’s decision to decline to uphold the complaint, other than the one inaccuracy which was upheld as a breach of Standard 5. The submission should also explain why the complainant requires the Authority to investigate and review the broadcaster’s decision. The submission is sought within one month of the date of this Interlocutory Decision.

Signed for and on behalf of the Authority

Peter Cartwright
Chair
10 October 2002